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"Most grave among the Sixth Circuit's misunderstandings. . . ." That is judicial-voice-speak* for, "You really botched this one, dummies." Today's unanimous opinion by Justice Ginsburg in Bobby v. Bies gives the Sixth a well-deserved spanking.

Michael Bies was convicted of the murder, kidnapping, and attempted rape of a 10-year-old boy. Bies is not the sharpest knife in the drawer. At the time, mild mental retardation was a mitigating factor but not a categorical exclusion, so it did not matter which side of the fuzzy line between mild retardation and borderline intellectual functioning he was actually on. The state did not contest the characterization of Bies as mildly retarded but argued, successfully, that it did not outweigh the very aggravated facts of this murder.

After Atkins v. Virginia, 536 U.S. 304 (2002), minor differences in placement on the cognitive continuum now matter a great deal. So, the Ohio state courts duly proceeded to have a hearing to examine this issue more closely. A federal district court halted the process, declaring that the Double Jeopardy Clause precludes a second determination of whether Bies is retarded. A panel of the Sixth Circuit affirmed, and the full court denied rehearing en banc.

How many ways is this wrong? Well, for starters, (slip op. at 2) it is absurd to talk about "double jeopardy," even as expanded by the Supreme Court's cases, when the state is simply trying to enforce its one and only judgment. "Further, mental retardation for purposes of Atkins, and mental retardation as one mitigator to be weighed against aggravators, are discrete issues." That is the point I noted above.  Now comes the "most grave" point:

Most grave among the Sixth Circuit's misunderstandings, issue preclusion is a plea available to prevailing parties. The doctrine bars relitigation of determinations necessary to the ultimate outcome of a prior proceeding. The Ohio courts' recognition of Bies' mental state as a mitigating factor was hardly essential to the death sentence he received. On the contrary, the retardation evidence cut against the final judgment. Issue preclusion, in short, does not transform final judgment losers, in civil or criminal proceedings, into partially prevailing parties.

AEDPA deference also applies but isn't really needed. It gets dropped into a footnote.

In my first post on this case, I wrote, "the betting pool should simply be on which ground the Supreme Court will reverse." Good thing we didn't actually have a pool. Everybody would have won. The after-argument post is here.

* See generally Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U.L.Rev. 1185 (1992).

Update: Speaking of botching it, this AP article on the decision begins, "The Supreme Court has unanimously ruled that the state of Ohio should have another chance to sentence a convicted killer to death, despite a previous factual finding that the man is mentally retarded." There is no byline, but apparently the anonymous writer didn't bother reading the opinion. Among the main points is that the state is not seeking another chance to sentence Bies to death but only to enforce the judgment it already has. Sheesh.

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Not surprising that all three of the panelists, Judge Moore, Judge Daughtrey and Judge Clay, were Clinton appointees. I wonder what ratings these distinguished jurists received from the ABA . . . .

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