pageok
pageok
pageok
Bobbie v. Bies:
Last year, a number of posts here noted the 6th Circuit's unusual decision in Bies v. Bagley, a 6th Circuit capital habeas case. The Sixth Circuit denied rehearing en banc,with the author of the original panel opinion stating that the original opinion was not only correct, but that it was "an easy case." Judge Sutton disagreed, authoring what I thought was a strong dissent from denial of rehearing en banc.. Today the Supreme Court reversed n a unanimous opinion authored by Justice Ginsburg, Bobbie v. Bies. Justice Ginsburg's decision is unusually brief for an RBG opinion, and the four-page analysis section cites Judge Sutton's dissent four times.
Anderson (mail):
High fives in Sutton's chambers today!
6.1.2009 11:32am
ruuffles (mail) (www):
Since the SCOTUS reversal was unanimous, how did en banc get denied by the normally conservative 6th circuit?
6.1.2009 11:36am
Redman:
Well, the author of the original opinion was right. It WAS an easy case.
6.1.2009 11:51am
Soronel Haetir (mail):
I would agree that this was an easy case. Which makes it all the more inexplicable that the panel and district court got it so wrong.
6.1.2009 11:51am
Dave N (mail):
It probably means little but I find it interesting that the most liberal member of the Supreme Court wrote the opinion giving the 6th Circuit its smackdown.
6.1.2009 11:57am
OrinKerr:
Dave N,

I think it's not uncommon for a Chief Justice to assign an easy 9-0 case to the Justice generally inclined to support the losing side.
6.1.2009 12:02pm
Greg Dodge:
Interesting year at SCOTUS for the sixth. Have they reversed each of the habeas cases they've taken? Seems like they dislike the conservative side and the liberal side both. Can't we all just get along?
6.1.2009 12:03pm
Greg Dodge:
Also, looks like the Sixth was the first to apply Arizona v Gant today, in US v Lopez, written by the newish Judge Ray Kethledge.
6.1.2009 12:04pm
Commentor (mail):
Ruffles,

It is statistically less likely that you will be granted en banc review than certiorari to the Supreme Court. Further, it requires calling together a larger number of justices (24 in the 6th) and there are different internal politics involved. It is not surprising that en banc would be denied only to have the Supreme Court reverse.
6.1.2009 12:09pm
David Schwartz (mail):
It's too bad. I kind of liked the idea that people could appeal their convictions and when the government tried to argue the conviction should be upheld, they would argue that the government's attempt to "re-convict" them offends double jeopardy.
6.1.2009 12:09pm
Greg Dodge:
Commentor, is that accurate on the Sixth? As far as I can tell the Sixth grants en banc at far and away the highest clip of all the CoAs. On the Second or DC it is very rare, but the Sixth has 10-15 en bancs a year. (thisjs anecdotal.) At least where a judge calls a poll, it seems less likely that there wouldn't be en banc.
6.1.2009 12:13pm
martinned (mail) (www):
@David Schwartz: That's not a fair summary of the lower court ruling. There was a non-frivolous argument of issue preclusion here, but the 6th should have denied it.
6.1.2009 12:23pm
David Schwartz (mail):
It was intended as a joke.
6.1.2009 12:29pm
M. Page:
I agree that the Sixth Circuit got it technically wrong. But I liked the outcome. This is really a Due Process case dressed up as a Double Jeopardy case. The MR issue was litigated and decided, as it had to be under OH law. The state admitted that Bies was MR. Now that the SCOTUS raised the stakes of a MR finding, the state wants to retract its position.

It is easy to undermine the integrity of Atkins if states that disagree with Atkins are able to effectively raise the MR bar. I fear that Bies may fall victim to such a post-Atkins MR bar raising.
6.1.2009 12:37pm
Jeff Lebowski (mail):
Greg, I found a state court opinion applying Gant today.

http://www.in.gov/judiciary/opinions/pdf/06010902bbs.pdf

Handed down today from the Court of Appeals of Indiana (my home state). I won't go into the specifics, but the defendant's conviction was reversed.
6.1.2009 1:26pm
Dave N (mail):
Orin Kerr,

I realize that. If there is consensus at conference, one way to maintain consensus is for the Chief to assign the opinion to the justice most likely to dissent if some other justice writes and the opinion is too broad.
6.1.2009 1:49pm
Commentor (mail):
Greg Dodge,

I hadn't realized that the 6th Circuit granted en banc that much. 10-15 is certainly more than most other circuits. I can't put it into context without more statistics about the number of en banc petitions and Supreme Court certiorari stats. Maybe someone with more time on their hands will do the research.
6.1.2009 2:52pm
MarkP (mail):
So let's play this one out. There will now be a post-conviction proceeding in an Ohio court, to determine whether the defendant is mentally retarded. That will then get appealed to the Ohio Court of Appeals and then to the Ohio Supreme Court and then with at least a cert. petition in the U.S. Supreme Court. After that series of proceedings, the defendant will have exhausted his State remedies and can go back to federal district court to petition for habeas corpus, with an appeal and then at least a cert. petition. All to finally decide whether the defendant is mentally retarded -- which the Ohio courts have already said he is.

I'll be the first to agree that there was no Double Jeopardy Clause violation here. It's really (as noted above) a Due Process issue. But I'm less concerned with the legal niceties than with the delay and cost. This "win" for the State of Ohio has only delayed a final judgment and cost the taxpayers (both State and federal) a fortune -- despite a determination by the Ohio courts that this defendant is mentally retarded. He will probably not ever be executed. But if he is, the entire court episode looks like a Kafkaesque or Orwellian charade (he was determined to be retarded, until it looked like that mattered, then he was determined to not be retarded). However this turns out, it is a complete waste. More "wins" like this by the government, and the Rule of Law is done for.
6.1.2009 3:04pm
martinned (mail) (www):

he was determined to be retarded, until it looked like that mattered, then he was determined to not be retarded

According to Justice Ginsburg's ruling, the defendant was said to have "mild to borderline mental retardation". When retardation is a mitigating factor, there is no reason to make a black-and-white decision on this issue; retardation can be taken as a matter of degree, to be weighed together with all the other mitigating and aggravating circumstances.

Under Atkins, however, there has to be a decision: he's too retarded to be executed or not. One could reasonably argue that under pre-Atkins case law, the appropriate threshold for retardation would be a low one, whereas under the current law the threshold should be much higher. (Did the Supreme Court really rule that "mildly retarded" people cannot be executed?)
6.1.2009 3:17pm
MarkP (mail):
Not sniping with you, martinned, because you're actually proving my point. There now has to be some process to determine, first, the legal standard for "too retarded to execute," THEN there has to be a factual finding about which side of the line Bies is currently on.

Because the Ohio Court of Appeals has already determined that Bies is not just "mild to borderline" mentally retarded but also possesses a "chronic to severe personality disorder" and "probable organic brain dysfunction," whatever the legal standard is decided upon to execute mentally retarded people, this guy is probably not going to be executed (unless, as I say, we just trash that whole Rule of Law thing). More waste of time and money, though. From my perspective, the Double Jeopardy question is not more important than the exhorbitant expense, stress on the victim's family, and stress on Bies' family that will result from the future proceedings in this case. Those very predictable costs could have been prevented by the Ohio AG simply not fighting this case tooth and nail (i.e., exercising prosecutorial discretion and just not appealing the district court decision), but that's obviously not what happened here.
6.1.2009 4:37pm
Bill Dyer (mail) (www):
My four teenagers carelessly use the term "retard" (as a noun) and "retarded," but on reflection, they would be quick to agree that those terms are extremely imprecise and can mean very different things in different contexts.

This was an overaggressive attempt to use issue preclusion and it depended on willfully blurring the meaning of the term "mentally retarded" to ridiculous levels.

That a long and complicated procedural drama will result was inevitable as a consequence of Atkins v. Virginia, and that's one of (but far from the worst of) that decision's attributes which makes me believe it was wrongly decided.
6.1.2009 5:10pm
einhverfr (mail) (www):
Hmmm.... I think the 8th Amendment issue is not a real one.

I am surprised that the decision was not upheld on the grounds of due process though. After all, the mental retardation issue was decided as a necessary part of the original case, and if we allow facts in criminal cases to be relitigated simply because the stakes change, that seems problematic to me.
6.1.2009 6:22pm
martinned (mail) (www):
@einhverfr: As I tried to explain above, retarded under Atkins is in no way the same thing as retarded under Penry v Lynaugh. The state is estopped (call it collateral estoppel, issue preclusion or whatever) from arguing certain specific facts about Bies' retardation that were already litigated and decided, but whether he is retarded enough to be able to rely on Atkins is as of yet undecided, which is why it will now be litigated.

As far as I can tell, where Ginsburg writes that "Because the change in law substantially altered the State's incentive to contest Bies' mental capacity, applying preclusion would not advance the equitable administration of the law." (p. 10), that whole section looks like an alternative basis for the ruling, and one that I don't think I agree with.
6.1.2009 6:39pm
David Schwartz (mail):
There are two independent reason the panel is totally wrong. The first is the one discussed above. There is not one legal standard for "retarded" any more than there is only legal standard for "competent" or "negligent".

But the other reason is this simple -- the State won despite an adverse finding. There is no double jeopardy here, or any other question of fundamental rights, because Bies initiated this proceeding.

So the only question is estoppel, which is a judicial economy thing. How does it promote judicial economy (or make logical sense) to require people to appeal adverse legal findings (in case they become important later) in proceedings in which they won everything they asked for?
6.1.2009 8:18pm
David M. Nieporent (www):
Because the Ohio Court of Appeals has already determined that Bies is not just "mild to borderline" mentally retarded but also possesses a "chronic to severe personality disorder" and "probable organic brain dysfunction," whatever the legal standard is decided upon to execute mentally retarded people, this guy is probably not going to be executed (unless, as I say, we just trash that whole Rule of Law thing). More waste of time and money, though. From my perspective, the Double Jeopardy question is not more important than the exhorbitant expense, stress on the victim's family, and stress on Bies' family that will result from the future proceedings in this case. Those very predictable costs could have been prevented by the Ohio AG simply not fighting this case tooth and nail (i.e., exercising prosecutorial discretion and just not appealing the district court decision), but that's obviously not what happened here.
It could have been prevented by Bies not fighting it tooth and nail too.

Or, you know, him not killing someone.
6.1.2009 10:09pm
MarkP (mail):
David N.,

You non sequitur indicates you are not aware of what prosecutorial discretion is.

Bies doesn't work for me. Government officials, however, do work for me. They extract my money through taxes to make their living. I care about their decisions because THEY COST ME MONEY. When they waste my money, I will criticize them.

Finally, it is cheap snark to appear to argue that "it doesn't matter what happens to this guy because he killed someone." The question -- for people who take the law seriously -- is what should the lawyers and judges do in this situation? Serious lawyers and judges start answering the question with the awareness that this guy killed someone. No one can take back that action; the only issue that matters is: what decisions should be made now? The prosecutors' decision to drag this thing out and cost me more money, for no likely chance of a different outcome, is a waste. Snark doesn't make the waste any less real -- or bring back the victim.
6.2.2009 10:14am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.