« Some local specifics for the application of federal sentencing guidelines | Main | Setting up conference times »

April 15, 2009

Briefs for the Bobby v. Bies case

As promised, here are all the merits briefs for your review in the Ohio capital case, Bobby v. Bies, coming before the US Supreme Court later this month.  Though I do not expect everyone to attend the Monday moot, I would be grateful for suggested questions (or other reactions to the briefs) in the comments.

Ohio's merits brief in Bobby v. Bies as Petitioner: Download Bies Pet

Bies's merits brief in Bobby v. Bies as Respondent: Download Bies Resp

Ohio's reply brief: Download Bies Reply

April 15, 2009 | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Briefs for the Bobby v. Bies case:


I can't read these briefs. They are too painful and offensive to anyone with the slightest decency. The defendants crushed the head of the victim. No one cares. Only the lawyer rent matters to both sides.

The state had notice of the dangerousness of the defendant since the age of three. The state loosed this defendant on the public, yet does not have to pay for its carelessness. The state of Ohio has the greatest blameworthiness. The defendant should have been executed years before the murder.

Questions about the IQ in this case.

Were any of the IQ results obtained prior to the crime, after which the defendant had an interest in an intentionally poor performance? Even Prof. Berman with an IQ of 300 could come up with an IQ in MR range by intentionally giving wrong answers, or intentionally slowing his response time when the examiner is using a stopwatch. The IQ was not designed for a forensic setting. It was designed for an education setting. The use in this context by the Supreme Court makes it completely invalid. It is a pretext, that the Supreme Court will latch onto because it loves the criminal. Sure, you could use a turkey thermometer in a satellite orbiting around the sun to measure temps on the surface of the sun. However, you would get junk results.

I question if any lawyer here can lure a boy into a shed? Try it. The defendant had excellent social and friendship making skills. He is slicker than the trained lawyers here. He is also saving his life, by scamming top litigators.

The standard error of the IQ test is 12 points. The defendant's IQ is reliably within the normal range. No one is addressing that, I am betting without reading the briefs.

Posted by: Supremacy Claus | Apr 16, 2009 12:42:29 AM

Suggested questions (not sure i really understand it all though)

What would be the “slippery slope” with having a definition of acquittal be “when a judge or jury enters findings sufficient to establish legal entitlement to the life sentence”?

The cases you rely on in your first argument of the brief – based on Sattazahn, Poland, and Rumsey each seem to draw a different rule for determining when there has been an acquittal. What is the rule you advise? Must there be findings by the judge or jury as to the existence of aggravating factors? Must the first life sentence be based on the fact that the State had not proven the existence of any aggravating circumstances?

What is the rule for “acquittal” that you are advocating in terms of double jeopardy?
Is it that a person is acquitted of the death penalty if the State has not proven the existence of any aggravating circumstances?
If so, then isn’t it true that a defendant could be acquitted of the death penalty without the jury/judge ever considering the mental illness of the defendant?
It doesn’t make sense, then, to base collateral estoppel on acquittal?
And if the jury/judge never considered the mental illness of the defendant, then their sentencing decision is not based on such a finding correct?
And if that is true, then the issue has not been precluded from consideration isn’t that correct?
Without being precluded, then, the Ohio Supreme Court could, and did, make a decision about the defendant’s mental illness right?
So hasn’t the issue of mental illness been decided and, therefore, is precluded from reconsideration?

Posted by: Jeanna | Apr 17, 2009 1:26:44 PM

I don’t think I will be able to make it on Monday because of class.
Nevertheless, after looking at some of the brief materials, I am somewhat skeptical that Bies is arguing that Ashe is as broad as the Ohio reply brief implies. I would be interested to hear a response to the following questions:

While one might expect the Ashe issue to come up most often in an acquittal context, is there any actual statement/precedent from the Court requiring a formal acquittal (rather than simply implying that the Ashe question occurs in acquittal situations)?

As long as a court has actually made the determination, what is the policy justification for re-litigating these type of factual determinations?

Wouldn’t the approach Ohio is advocating have the effect of emphasizing formalism over practicality?

Isn't there reason to be troubled by Ohio's lack of consitency in staking out its positions in the current case?

Posted by: Zach | Apr 17, 2009 3:24:01 PM

My observations from the mock oral argument today:

Most of the lawyers present seemed to believe that Bobby/The State of Ohio would win, possibly even unanimously, and Bies would have to submit to an Atkins/Lott mental retardation determination. I also got the sense that Bies would probably win that determination. Seems like a lot of sound and fury only to end up back in the same place--Bies getting a life sentence. So what exactly was the point of all this? Whose interests were they protecting? Do the victims wish for Bies to die, even though it seems unlikely? Am I missing an important state interest that must be so strongly defended that our state solicitor is spending so many hours on this?

I think SC would love (or maybe hate) this case because it seems to be a good example of some of his postings regarding the inefficiency of the legal profession in this country.

If today's discussion would have been more similar to our class discussions, I would have asked these questions:

First, as a representative of the state of Ohio, are you troubled by the capital sentencing disparities among Ohio counties, particularly the frequency it is imposed in Hamilton County (as it was in this case)? --This probably would have been a better question for former AG Rogers, actually.

And secondly, what, exactly, is the point of all this?

Posted by: Shawn | Apr 20, 2009 10:17:13 PM

Shawn, I think I can answer some of these questions by "pulling back the curtain" in Wednesday's class.

Posted by: Doug B. | Apr 21, 2009 9:22:09 AM

Shawn: Your remark, "...regarding the inefficiency of the legal profession in this country," underestimates the efficacy of the legal profession.

How much does this dispute cost? Where did the cost come from? Where did it go? The answer is $millions, from taxpayers, to lawyers, the ones on each side, and to the one on the bench making the pretextual decisions. Every penny came from the labor of working people, at the point of a gun. Try not paying your taxes. Armed people will show up, and help you pay your taxes.

So the legal profession is quite efficient, at rent seeking. Not only is it pulling off a heist, but unlike armed robbers, it cloaks itself in the appearance of supercilious virtue. We are saving a life, they claim. How much is a life worth in an expensive legal dispute? Or we are civilized, we do not execute the handicapped. Now, it has progressed to, we do not give long prison sentences to the handicapped.

The lawyer profession is in failure in every goal of every law subject. That failure includes Job 1 of government, safety. But that is not the real aim. That is the masking ideology.

I hope that if you decide to lead in the legal profession, you will promote the absolutely essential values of the rule of law. As an owner of the law, I would want to see you rewarded with money, prestige, and genuine gratitude of the public. These rule of law values are as necessary to our survival as water and electricity. See the result when the rule of law is turned off, as in Fallujah. Security becomes a full time job for everyone. Nothing else can get done.

Some of our neighborhoods are more dangerous than Fallujah. To help you, I would support closing a third of the law schools, doubling the average wage of the lawyer, and ending the wrongheaded hostility of the public. The lawyer would have to stop the lawfare and the armed robbery against our nation.

Posted by: Supremacy Claus | Apr 21, 2009 3:24:33 PM

After class discussion today, I though about how the Supreme Court was correct in leaving it to the states to develope the standered of what is MR. It is too the state legislatures to set the standarded.

Posted by: Tewart | Apr 22, 2009 3:02:36 PM

The comments to this entry are closed.