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Bies Argument

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The transcript of oral argument in Bobby v. Bies is now available here. Lauren previewed the argument Friday, and I wrote this post back in January when the Supreme Court took up the case.

Things are looking bad for the defendant when defense counsel gets interrupted a lot more than the attorney for the state. And when it's Justices Souter, Ginsburg, and Breyer doing the interrupting, he's toast. On pages 22-23, Justice Ginsburg says:

the ultimate issue in the case that was before the Ohio Supreme Court is, do the aggravators outweigh the mitigators? That's the ultimate determination, and that's what would have preclusive effect, not the many intermediate findings that may have been made on the way to the ultimate determination of death.

Right. The main question now is whether the reversal will be unanimous.

Doug Berman has this post at SL&P.

Update: Adam Liptak has this story on the argument in the NYT.

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Ginsburg hit the nail on the head when she asked whether issue preclusion can be applied against a judgment winner.

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