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Retardation and Double Jeopardy

The U.S. Supreme Court today issued orders after its Friday conference, granting certiorari in six cases: four civil, one criminal, and one quasi-criminal. Lyle Denniston summarizes all six at SCOTUSblog. The quasi-criminal case is named Nijhawan v. Mukasey, No. 08-495 for the time being. It has to do with deportation for frauds over $10,000 and who decides the amount of the loss.

The criminal case is Bobby v. Bies, No. 08-598. The Sixth Circuit opinion is Bies v. Bagley, 519 F.3d 324 (2008). The Ohio Supreme Court opinion on direct appeal is State v. Bies, 658 N.E.2d 754 (1996).

Bies is on one of the lower rungs of the intellectual ladder. Whether he is actually retarded has been disputed throughout the litigation. His IQ tested at 69, which is pretty much a coin-toss given a margin of error of +- 5 and a presumptive threshold of 70. Before Atkins v. Virginia, 536 U.S. 304 (2002), the difficult question of which side of the nebulous line he falls on didn't really matter. Being on the ragged edge was a mitigating factor to be weighed against the aggravating under Penry v. Lynaugh, 492 U.S. 302 (1989), and the weight was not appreciably different whether he just barely met or just barely did not meet the clinical criteria for the diagnosis of "mildly retarded."
Bies's expert, Dr. Donna Winter, "evaluated Bies's I.Q. as being in the range of mildly to borderline mentally retarded." That's sloppy terminology. There is no category of "borderline mentally retarded." The DSM-IV-TR recognizes mild, moderate, severe, and profound retardation. The next step up from mildly retarded is borderline intellectual functioning. "Differentiating Mild Mental Retardation from Borderline Intellectual Functioning requires careful consideration of all available information" (p. 48). It doesn't appear from the published opinions that such a differentiation was made or needed to be made by the expert, by the jury, or by the Ohio Supreme Court.

On appeal, the Ohio high court independently assesses the aggravating and mitigating factors. "Under factor (7), Bies's personality disorder and mild to borderline mental retardation merit some weight in mitigation." 658 N.E.2d, at 761. Again, there does not appear to be any effort to differentiate mild retardation from borderline intellectual functioning, because nothing turned on the distinction.

Upon independent weighing, the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. The totality of evidence and circumstances portray a heinous and brutal crime that shocks the senses. A small ten-year-old boy who was afraid of the dark and who had problems walking was tricked into going into two abandoned buildings to earn some money. Once inside, Bies and Gumm made Aaron aware of their sexual intentions and Aaron resisted. But he was not allowed to leave. This clearly constituted kidnapping under R.C. 905.01. Aaron was then dragged over to another building against his will where the attempted rape took place. After Aaron refused to accede to the sexual desires of his abductors, he was brutally murdered. Bies's participation in these crimes merits the capital penalty to which he was sentenced.

Post-Atkins, Bies filed for a third state post-conviction review. He asked for summary judgment on the theory that the fact of retardation has already been determined and the Double Jeopardy Clause precludes relitigating it. The state court didn't buy it, but the federal courts did. This is wrong in so many ways that the betting pool should simply be on which ground the Supreme Court will reverse.

"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb...." How many times has Bies been "in jeopardy of life"? Once. The state is not retrying him. He is the moving party on state post-conviction. There is overlap between the Double Jeopardy Clause and the general principle of res judicata (including collateral estoppel), but, like the Confrontation Clause and the hearsay rule, they are not coextensive. The Double Jeopardy Clause has no application when the state merely seeks to enforce a judgment entered once and never yet overturned.

Closely related to this point is that the Double Jeopardy Clause only comes into operation when there has been an acquittal or the equivalent of an acquittal, such as reversal on appeal for insufficiency of the evidence.  "We reject the fundamental premise of petitioners' argument, namely, that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an 'acquittal' of that circumstance for double jeopardy purposes." Poland v. Arizona, 476 U.S. 147, 155 (1986).

Even under general collateral estoppel principles, the rule only precludes relitigation of issues actually and necessarily determined in the prior litigation. Which side of the fuzzy Atkins line Bies falls on was neither determined nor needed back in the days of the Penry rule.

Layered on top of all this is that Bies's Double Jeopardy claim was rejected on the merits by the state court, and the federal court can therefore only grant habeas relief if that decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States...." 28 U.S.C. ยง 2254(d)(1).

Place your bets.


I know this is a bogus argument, but couldn't they point to the Atkins holding that states determine mental retardation and that since the state court has said that he is mentally retarded (remember, the fuzzy Atkins line is all the more fuzzy because the states get to determine what constitutes mental retardation), that's the end of the matter under Atkins. I know, very weak.

This was a horrible crime, and the death penalty is absolutely deserved. It's bad enough that some federal judges embarass themselves with bogus readings of the law, but to do so on behalf of such inhuman killers is stunning. I guess that's what passes for enlightenment these days.

I think the question here is why there is not per curiam summary reversal.

"mildly to borderline mentally retarded" is a phrase used in the WAIS testing manual (the test most commonly used to measure adult IQ). You're entirely correct, though, that it doesn't qualify as a valid diagnosis under the DSM.

What I find even more interesting is the idea that a personality disorder should in any way matter in terms of culpability. It is estimated that about 3/4 of the prison population qualifies for a personality disorder diagnosis (and this will surely increase when the DSM-V is published).

Here's the Sixth Circuit's order denying rehearing en banc. Sutton's dissent is particularly good:


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