In 1992 Michael Bies was convicted of the aggravated murder, kidnapping, and attempted rape of a ten-year-old boy in an Ohio court. During the penalty phase it was brought up as a mitigating factor that Bies had a mild to borderline case of mental retardation. But the jury found that aggravating circumstance, particularly his tendency towards violence outweighed the mitigating circumstance and recommended the death penalty which the judge imposed. On appeal to the Court of Appeals and the Ohio Supreme Court the death penalty was upheld. Bies then filed a petition asking to be spared the death penalty due to his retardation. The appeal was denied by both the Ohio Court of Appeals and the state Supreme Court.

Shortly after Bies filed a writ of habeas corpus in Federal Court the Supreme Court decided Atkins v. Virginia. In Atkins the court decided that the Eighth Amendment prohibited the execution of the death penalty on a retarded person. But it did not decide, or provide guidance on, who was too retarded to kill.

Bies then filed an action in the Ohio trial courts to prevent the execution of the death penalty. He filed a motion for summary judgment. It was denied and the trial court ordered a complete hearing. Bies appealed the decision to the Ohio Supreme Court, without success.

He then went into the Federal Court to get an order mandating that the hearing in state court be prevented on double jeopardy grounds. He argued that since his retardation was proved during the sentencing phase of his trial holding another hearing on the issue would violate his Eighth Amendment right not to be placed in double jeopardy. The District Court and the Sixth Circuit Court of Appeal agreed with him. The State of Ohio appealed to the Supreme Court and in Bobby, Warden v. Bies the Supreme Court reversed the decision of the Sixth Circuit, finding that the Ohio court’s proposed hearing on Bies retardation did not violate the Eighth Amendment and it complied with Atkins.

Bies’ theory was that since his mental retardation was a mitigating factor at trial, to decide it again would place him in double jeopardy. Such a theory is called issue preclusion since it prevents the same issue from being litigated twice. The Supreme Court disagreed. First, according to Justice Ginsburg’s unanimous decision, Bies was not placed in double jeopardy since the State of Ohio was not trying to increase his sentence it was merely trying to impose the sentence previously ordered. Second, mental retardation for the purpose of mitigation and mental retardation for the purpose of Atkins are two discrete issues and a finding in one does not mandate the same finding in the other. Finally, the Supreme Court ruled that issue preclusion is only available to a prevailing party who wants to maintain his/her decision. In the case of Bies he did not prevail at sentencing and therefore cannot now claim issue preclusion. In fact, at sentencing where his retardation was considered a mitigating factor it was outweighed by aggravating factors. So he does not have an issue which he won and for which he is afraid the State will obtain a reversal. In fact even if it had not been considered a mitigating factor at trial he could have gotten the same sentence.

Furthermore, the Supreme Court was clearly uncomfortable with the lower Federal Courts intervening in the Atkins process before the state court made a final decision. So we can probably expect the matter to return to the Federal Courts after a decision is made by Ohio courts and appealed to the State Supreme Court.