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.