On January 16, 2009, the U.S. Supreme Court grant­ed Ohio​’s peti­tion for a writ of cer­tio­rari in Bobby v. Bies. The state is ask­ing the Supreme Court to reverse a deci­sion by the U.S. Court of Appeals for the Sixth Circuit Court grant­i­ng the defen­dant, Michael Bies, habeas cor­pus relief based on a vio­la­tion of the Double Jeopardy Clause of the Fifth Amendment. Bies was con­vict­ed and sen­tenced to death for the 1992 mur­der of 10-year-old Aaron Raines. During his sen­tenc­ing phase and in direct appeal, evi­dence of his men­tal retar­da­tion was pre­sent­ed. Both an appeals court and the Supreme Court of Ohio upheld his con­vic­tion and death sen­tence, but con­clud­ed that the defen­dant did suf­fer from men­tal retar­da­tion. Following the U.S. Supreme Court’s rul­ing in Atkins v. Virginia (2002), which banned the exe­cu­tion of men­tal­ly retard­ed defen­dants, the defense argued that because men­tal retar­da­tion had already been estab­lished and con­firmed in pre­vi­ous state court pro­ceed­ings, the Double Jeopardy Clause pre­vent­ed the pros­e­cu­tion from relit­i­gat­ing these men­tal health find­ings. The Sixth Circuit upheld the deci­sion of a fed­er­al dis­trict court, affirm­ing that the issue of men­tal retar­da­tion of Bies could not be relit­i­gat­ed because the defen­dant already ​“was found to be men­tal­ly retarded…by a final judg­ment of the Supreme Court of Ohio” (Bies v. Bagley). The Sixth Circuit grant­ed habeas relief and ordered that a sen­tence oth­er than death be imposed.

In its peti­tion, the state argued that the deter­mi­na­tion of men­tal retar­da­tion was made pri­or to Atkins, and that the ​“Ohio Supreme Court had not, for Atkins pur­pos­es, con­clu­sive­ly deter­mined the issue of men­tal retar­da­tion in its ear­li­er opin­ion.” Holding sep­a­rate pro­ceed­ings on the issue in the post-Atkins era would not vio­late the Double Jeopardy Clause because the defen­dant had nev­er been acquit­ted of the crime nor would he be at risk for addi­tion­al pun­ish­ment regard­less of the out­come of the pro­ceed­ings. In addi­tion, a sep­a­rate Atkins hear­ing would dif­fer from a penal­ty-phase inquiry into men­tal retar­da­tion, with the lat­ter look­ing ​“to the pres­ence of a defendant’s men­tal retar­da­tion as a poten­tial mit­i­gat­ing fac­tor,” while the for­mer ​“assess­es whether the mag­ni­tude of the defendant’s retar­da­tion bars the impo­si­tion of the death penalty.”

The Sixth Circuit in its ear­li­er decision concluded:

Under the Double Jeopardy Clause, ​“when an issue of ulti­mate fact has once been
deter­mined by a valid and final judg­ment, that issue can­not again be lit­i­gat­ed between the same
par­ties in any future law­suit.” This rule estab­lish­es an absolute bar to a state
seek­ing to relit­i­gate such an issue of ulti­mate fact, regard­less of the cor­rect­ness of the orig­i­nal
deci­sion. We there­fore do not con­cern our­selves
with the mer­its of Petitioner’s Atkins claim; the only ques­tion before this Court is whether the
gov­ern­ment, hav­ing lit­i­gat­ed and lost the issue of Petitioner’s men­tal retar­da­tion, is now attempt­ing
to reopen this question.

(inter­nal citations omitted).


The Supreme Court will decide whether post-con­vic­tion hear­ings to deter­mine the men­tal health of a defen­dant whose death sen­tence was imposed pri­or to Atkins v. Virginia would vio­late the Double Jeopardy Clause when the defendant’s men­tal retar­da­tion was addressed at tri­al and in direct appeal.

(See Bobby v. Bies, No. 08 – 598, cert. grant­ed Jan. 16, 2009; see also Bies v. Bagley, No. 06 – 3471 (6th Cir. Feb. 27, 2008)). See Mental Retardation and Supreme Court.

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