Impaired Man’s Execution Debated in High Court

     (CN) – The U.S. Supreme Court heard arguments Monday on the mental status of a mildly mentally impaired man who murdered a 10-year-old in 1992. Depending on what the court decides, the man may walk free or face execution.

     Michael Bies was sentenced to death before the high court’s 2002 ruling in Atkins v. Virginia, which essentially found that mentally impaired people may not be executed.
     As a result, Bies cannot be executed as long as he is deemed mentally impaired.
     John Blume, a professor at Cornell Law School, represented Bies. He argued for more than life in prison and said the change in law warrants dismissal of all charges, instead of the case going back to trial. It would violate the double-jeopardy clause, he said, which prevents an issue from being re-litigated.
     Solicitor General Benjamin Mizer, representing Ohio, argued that the case should go back to post-conviction court, where a true review of Bies’ mental status can be decided.
     If Bies, who was only considered to be mildly mentally retarded, is found to not be mentally retarded, he could be subject to execution.
     Obviously, Bies had a lot at stake.
     Blume argued that both the appeals court and the Ohio Supreme Court found Bies had mental retardation. He suggested this was not up to debate.
     But Justice Stephen Breyer rejected Blume’s argument that beginning a new trial would violate the Double-Jeopardy Clause. “You’re saying to me,” Breyer said, “If you’re in a collateral proceeding and the Federal judge said there wasn’t enough evidence to convict him under the Constitution, there isn’t enough evidence, it isn’t that he gets a new trial. The Constitution entitles him to acquittal, and therefore there is no new trial because of the double-jeopardy clause, right?”
Blume said this was correct. He faced an immediate barrage of questions.
     “I think it’s a stretch,” Justice David Souter said. “You’re coming up with a brand new rule.”
     Justice Ruth Bader Ginsburg objected to the idea of a loser who says the last trial cannot be revisited, because the loser is supposed to be unhappy with the results of the last trial. “It was a death sentence in this case,” she said. “And I am not aware of issue preclusion operating against a judgment winner.”
     Issue preclusion is like double jeopardy, where it bars issues from being re-litigated.
     Breyer argued that there is no reason to avoid a new trial. “Here, they are saying, ‘Judge, they made a mistake. They should have applied the mental retardation rule of Atkins. So give him a new trial,'” he said.
     Blume said the uniqueness of this case, where a retroactive rule was put in place by the Supreme Court, is the reason they have not seen a similar situation.
     Mizer disagreed with Blume, and argued that Ohio should be allowed to continue in its own legal process, in post conviction proceedings.
     “But what would the state show in an Atkins hearing that is not already in the record of this case?” Ginsburg asked. “I mean, why do it again?”
     Mizer said the mental state of Bies must be re-determined, and said more than IQ is used to determine whether a person is mentally retarded. Now, after the landmark Atkins case, it is especially important that there be a careful clinical judgment. Before Atkins, the issue of mental capacity played a minor role in such cases, and clinical judgments may not have been done with as much care, he explained.
     Breyer used an analogy to ask Mizer whether a do-over was necessary in this case.
     “Suppose it was a gun case and the Supreme Court originally thought you could convict people who sell drugs of simple possession of a gun,” Breyer said. “There’s a finding that he simply possessed but did not otherwise use the gun. Then the Supreme Court holds that that isn’t enough under the statute. So now the state wants to argue, because the proceeding on appeal is still going on, we want a second shot at this. We want to show he did more than simply possess. Is the state bound by what it previously lost on or can the state get a second shot?”
     Mizer said the new ruling would unbind the state from its past decision, and that the state would be required to try the case again.

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