Bies:  Recommendation of habeas writ eliminating death sentence on mental retardation finding

Michael Bies has a lifelong history of severe mental health problems, including delayed development and deficient intellectual capacity.  He did not learn to sit up until the age of one and was not able to walk proficiently at the age of two.  Throughout his childhood, he was treated and confined in psychiatric hospitals.  School officials removed him from special education classes because his performance was so abysmal and placed him in therapeutic classes.  On November 29, 1984, when he was twelve years of age and should have been in the seventh grade, he was found to be operating on the level of a first to third grader.   A year later, he received a full scale IQ score of 50 and a score of 42 on the Peabody Picture Vocabulary Test, which placed him in the lowest one percent of the population.  When he was fourteen years of age, the Social Security Administration determined that he was eligible for SSI because of his mental retardation.

At Michael’s trial, the psychologist for the court clinic determined that Michael had an IQ of 68.  That expert determined that Michael functioned in the borderline mentally retarded range, operating on the level of a third to sixth grader.  Another expert appointed by the trial court determined that Michael was mildly mentally retarded.  The state presented no testimony or argument to rebut these findings.  On the direct appeal from his death sentence, the Hamilton County Court of Appeals determined that he suffered from “mild mental retardation to borderline mental retardation.”  The Ohio Supreme Court reached a similar conclusion that Michael suffered from “mild to borderline mental retardation.”  In the subsequent state post-conviction proceedings, the prosecutors conceded Michael’s mental retardation and even drafted findings, which the trial judge adopted, that Michael was mentally retarded.

Since these findings, the United States Supreme Court determined that it would violate the Eighth Amendment to execute the mentally retarded.  Atkins v. Virginia, 506 U.S. 304, 306-307 (2002).  After that decision, the Hamilton County prosecutor indicated his intention to relitigate the prior appellate findings that Michael was mentally retarded.  Federal Chief Magistrate Judge Merz concluded that, “the Double Jeopardy Clause bars retrying the issue of whether Petitioner is mentally retarded.  That fact is conclusively established for purposes of this habeas corpus proceedings by the prior state court judgments.”  Bies v. Bagley, No. 1:00-cv-682 (S.D. Ohio, Nov. 23, 2003, Report and Recommendation, p. 10)