Stanford student Martine Cicconi summarizes yesterday’s argument in Bobby v. Bies. Filings in the case are available at SCOTUSWiki here.

At yesterday’s oral argument in Bobby v. Bies, the Supreme Court considered the effect of collateral estoppel on a state’s capacity to contest an inmate’s mental retardation in a post-conviction Atkins hearing.

Arguing for petitioner David Bobby, Ohio Solicitor General Benjamin Mizer began by noting that double jeopardy does not preclude the state from litigating Bies’s mental state for three reasons: Bies was never “acquitted” of the death penalty; there was no successive prosecution; and the state did not determine the Atkins issue in a prior proceeding.

Justice Kennedy began by asking what the state would prove in a subsequent hearing. Even presuming that preclusion did not apply, Kennedy wondered, why re-litigate the issue? Mr. Mizer answered that the standard Ohio developed in the wake of Atkins for determining mental retardation contains several elements that were not addressed in Bies’s trial or direct appeal: in particular, the court did not consider whether, in addition to having a low IQ, Mr. Bies shows substantial limitations in adaptive skills. Moreover, preclusion cannot apply because the state courts first considered Bies’s mental competency as a possible mitigating factor rather than as a complete bar to capital punishment. Because Atkins constitutionalized a clinical judgment as to retardation, the state has a stronger incentive to aggressively litigate the determination than it did before Atkins became law.

Focusing on Mr. Mizer’s use of the clinical definition of mental retardation, Justice Souter asked why preclusion would not apply, because a determination of a defendant’s IQ was required even before Atkins. Mr. Mizer answered that although the court necessarily had to determine Bies’s IQ, that determination was not necessary to the conclusion that Bies should be sentenced to death.

Justice Ginsburg then turned to the appellate court’s review of a death sentence. Before Atkins, she asked, would the state engage in an adversarial process at the appellate level to contest a finding of retardation? Mr. Mizer responded that, although the prosecutor could have vigorously contested the finding of mental retardation, there was little reason to do so. The aggravating factors were persuasive and likely to outweigh whatever force Bies’s mental competency held as a mitigator.

Finally, Justice Kennedy – appearing concerned about the sanctity of Atkins – asked whether the state had “an independent obligation to ensure itself that [Bies's] IQ is adequate” before executing him. Mr. Mizer responded that the state would indeed answer that question consistent with Atkins, and that the proper venue for the determination was the yet-unconvened hearing.

Respondent’s counsel, John H. Blume, faced aggressive questioning early in his argument. Justice Ginsburg quickly pointed out that Mr. Blume’s preclusion argument was novel. “You are urging preclusion against the winner,” she asserted. Since the state prevailed on its argument that Bies deserved a death sentence, it would be inconsistent to permit the losing party to argue preclusion. The decision on mental retardation was a subsidiary issue at best. Only the ultimate issue – in this case the finding that the aggravating circumstances of the crime outweighed the mitigating factors – would have preclusive effect.

Mr. Blume responded that the perception of its mental retardation finding as merely collateral “minimizes the Ohio Supreme Court’s role in appellate review.” The determination of mitigating factors, Mr. Blume argued, “is an essential function of [the court's] role” and one it does not undertake “uncritically.” Moreover, the “necessary” requirement of collateral estoppel contains only two elements: that the issue be finally decided, and that it be of significance in the proceeding. The state court’s finding with regard to Bies’s mental retardation satisfied both.

Justice Souter disputed this reasoning, pointing out that the finding regarding Bies’s IQ was not necessary to the state court’s decision because the court could have rendered the same judgment while finding Bies’s IQ to be at a different level. Joining Justice Souter, Justice Ginsburg reiterated that one could not “elevate an intermediate factor” – in this case the determination that Bies was mentally retarded – “to become the outcome determinative factor.”

In an effort to address both Justices’s concerns, Mr. Blume asserted that Ashe v. Swenson (1970), the case that established the collateral estoppel doctrine on which he relied, did not require ultimate victory. Ashe, he argued, merely required that the party claiming preclusion win on a relevant fact. Not so, countered Justice Ginsburg. “Ashe is about someone who was acquitted . . . There is no doubt that he won.”

Switching gears, Mr. Blume offered a hypothetical. Imagine the Warden is right, he suggested, and Bies returns to state court for his Atkins hearing. If the state court concluded that Bies was indeed mentally retarded, but refused to vacate his death sentence because it felt Atkins was wrongly decided, this Court would summarily reverse. Suppose then that the state wanted to reopen the issue to aggressively contest the court’s determination – that, Mr. Blume argued, would be no different than the facts of this case.

This argument also failed to gain traction with the Justices. Indeed, Justice Breyer argued, this case is the same as the hypothetical. There, as with all legal mistakes, the answer is that the accused receives a new trial. Engendering laughter, Justice Breyer challenged Mr. Blume to provide an example of a case “even vaguely” different from that scenario.

Chief Justice Roberts, who until that point had not asked Mr. Blume any questions, then asked how extensively he would apply issue preclusion. If a court, for example, ruled that a particular expert was not credible, “is that binding in a subsequent proceeding?” No, Mr. Blume answered. To warrant preclusion, the finding would have to absolve the criminal defendant of liability, or render him ineligible for the death penalty. “That’s narrowing it to your particular context,” the Chief Justice responded. But preclusion is a theory of double jeopardy, not Atkins, and should have broader applicability.

Justice Breyer, however, seemed to respond to this line of reasoning. The import of the argument, he summarized, is that because the finding at issue rendered the defendant ineligible for the death penalty, it is similar to a finding of insufficient evidence to convict, which entitles the accused to an acquittal and triggers double jeopardy.

But Justice Souter suggested that Mr. Blume was arguing for a new rule. “What is being precluded is not the first judgment,” he pointed out. “You’re saying there can’t be a second judgment but you are not depending upon a rule of preclusion that turns on the first.” “Whatever the argument is, it’s not issue preclusion.”

In response, Mr. Blume claimed his proposal was a combination of a “factual determination with a subsequent rule and a retroactive new rule.” Justice Souter, however, was not persuaded. “A subsidiary fact determination in the first case,” he asserted, has never been permitted as a defense in a subsequent case. And Justice Souter rejected the claim that the procedural posture of the case was merely unique. “The unique procedural posture of the case,” he countered, “is precisely the reason that the rule is brand new.”

Justice Ginsburg then offered a grim summary of Bies’s arguments. In Atkins, the Court left to the states the procedure for determining mental retardation. “You would take all that away from Ohio because in a different context, the context of weighing mitigators against aggravators, the Ohio Supreme Court said there was retardation. . . Ohio didn’t have a procedure for doing Atkins. It couldn’t until Atkins was decided.”

Mr. Blume argued in response that the burden of proof had not changed, and that Bies’s mental retardation had in fact been shown consistent with the post-Atkins standard. But the Justices were unconvinced. They returned to the argument that the pre- and post-Atkins proceedings were too distinct for preclusion to apply. “The incentives are vastly different,” Justice Ginsburg argued. When a prosecutor believes that the aggravators are strong, he may not aggressively challenge the mitigators; when mental capacity is the outcome-determinative factor, the state will argue its case differently. Indeed, Chief Justice Roberts asked, why would a prosecutor dealing with a borderline case of mental retardation challenge the defendant’s mental status when the aggravating factors of the crime were compelling?

In his brief rebuttal, Mr. Mizer was interrupted by Justice Stevens, who had been silent throughout Mr. Blume’s argument. Will the state, Justice Stevens asked, contest the previous finding that Bies has an IQ of 69, or will it argue that it may execute someone with such an IQ? The state will contest the finding, Mr. Mizer answered, as well as subjecting Bies to the other elements of the standard Ohio now uses to determine mental retardation.

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