Supreme Court Smackdown: Sixth Circuit Gets Lectured on Double Jeopardy

In a unanimous decision today, the Supreme Court held that the Double Jeopardy Clause doesn’t prevent Ohio from re-litigating a capital defendant’s mental retardation, after the state’s highest court had opined that he had “mild to borderline” mental retardation.

The case is unique, in that the defendant was sentenced to death before the Supreme Court’s 2002 decision in Atkins v. Virginia, 536 U.S. 304, which outlawed execution of mentally retarded offenders. So the mental capacity of the defendant was taken into consideration at sentencing, but was held to be outweighed by the horrific facts of the crime (the aggravated murder, kidnapping and attempted rape of a ten-year-old boy). Evidence of borderline mental retardation was presented, but no factual finding was reached as to his capacity. On appeal, the Ohio Supreme Court upheld the conviction, and made a passing observation that the defendant had mild to borderline mental retardation, but agreed that its mitigating value was outweighed by the crime.

But then the Supreme Court rendered its Eighth Amendment decision in Atkins, so the trial court ordered a new hearing to make the factual finding of the defendant’s mental capacity, for the purpose of determining whether his death sentence should be commuted to a life sentence.

The defendant, Michael Bies, challenged that on habeas, and the federal District Court said the new hearing shouldn’t be held, and the defendant’s death sentence should be vacated, because the Ohio high court’s observation amounted to a finding of fact that Bies was retarded.

The state appealed that order, but the Sixth Circuit upheld it, holding that the Ohio high court had made a definitive determination of fact, and that determination entitled Bies to a life sentence. Any new hearing would violate Double Jeopardy, by putting Bies at risk of a death sentence again.

Writing for the unanimous Supreme Court today, in Bobby v. Bies, Justice Ginsburg stated that the Sixth Circuit didn’t understand what Double Jeopardy means. The Circuit “fundamentally misperceived the application of the Double Jeopardy Clause and its issue preclusion (collateral estoppel) component.”

Bies was not “twice put in jeopardy,” wrote Ginsburg. Ohio took no action to seek further prosecution or punishment. The new efforts were entirely of the defendant’s doing — rather than serial prosecutions, we have “serial efforts by the defendant to vacate his capital sentence.”

Also, the issues to be litigated aren’t identical. The first time around, the issue was whether his mental capacity mitigated the criminal offense. This time around, the issue is whether he is mentally retarded for the purposes of Atkins, which has not yet been decided.

Also, the Sixth Circuit failed to understand that “issue preclusion” is not a claim that the loser gets to bring. It’s only a claim that winners get to bring, so they don’t have to keep litigating determinations that were necessary to the outcome of a prior proceeding. Here, the Ohio high court did recognize Bies’ mental capacity as a mitigating factor, but that observation was not essential to the death sentence he got — it was the opposite, something that “cut against” it. “Issue preclusion, in short,” wrote Ginsburg, “does not transform final judgment losers, in civil or criminal proceedings, into partially prevailing parties.”

So the upshot is that “the federal courts’ intervention in this case derailed a state trial court proceeding designed to determine whether Bies has a successful Atkins claim.” And the state hearing is exactly what the Supreme Court intended to happen when it wrote Atkins.

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Interestingly, in the briefs and arguments, the defense made a point of showing that Ohio wasn’t making much of an argument on AEDPA grounds (the Antiterrorism and Effective Death Penalty Act of 1996). The Supreme Court dismissed the entire issue in a footnote:

This case, we note is governed by the [AEDPA]. Bies plainly fails to qualify for relief under that Act: The Ohio courts’ decisions were not “contrary to, or . . . an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), and were not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” §2254(d)(2).

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Although it may seem at first glance that the defendant got a raw deal here — he has to re-litigate an issue he already thought he’d prevailed on — the Court’s reasoning is sound. Double Jeopardy happens when the same sovereign tries to get a second chance to punish you for the same offense.

Here, the state wasn’t trying to do that at all. All Ohio was trying to do was determine whether new caselaw permitted it to let the original punishment stand, or whether the new law required it to reduce the original punishment.

You can see how easy it is to make the Sixth Circuit’s error, of course. It appeared as though the Ohio high court had made a factual determination that, by operation of the new caselaw, automatically required commutation of the death sentence here. So ordering the new hearing looks like the state trying to get a second shot at it. But really, as the Court pointed out, the issues are not the same. There never was any finding of fact that the defendant actually was mentally retarded for Eighth Amendment purposes, and that was precisely what needed to happen.

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And Ginsburg is the last person on the Supreme Court to rule otherwise, if there was any chance that the defendant ought to have prevailed.

We recall a case we worked on back in 1995 with the famed Carter Phillips. We worked through our holiday with him, well into the night, trying to get the Supreme Court to commute the death sentence of a mentally retarded convict. But this was pre-Atkins, and the Court rejected our application. Only Justice Stevens and Justice Ginsburg would have granted it. The case was Correll v. Jabe, No. 95-7283, and Mr. Correll became the last mentally retarded person to be executed in the Commonwealth of Virginia. Justice was not done then, and the case has since become the stuff of plays and campaigns, but had Ginsburg had her way then, we might now be discussing the Correll rule instead of the Atkins rule. So it would be dishonest to claim that she is callous to this defendant’s situation.

All in all, this is a good opinion. The clarification of what Double Jeopardy and issue preclusion mean was absolutely necessary. And while Mr. Bies’ situation cannot worsen, it actually stands a good chance of improving after his upcoming hearing.