Bell v. Thompson - Opinion Announcement

Argument of Chief Justice

Mr. Justice: The opinion of the Count in Bell against Thompson will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: In 1985, Gregory Thompson was convicted by a jury of first degree murder and was sentenced to death.

In his state postconviction petition, Thompson claimed his trial counsel had been ineffective for failing to conduct and adequate investigation into his mental health for use as mitigating evidence during the penalty phase of the trial, and the Tennessee Courts denied Thompson's claims.

Thompson renewed his ineffective assistance of counsel claim on federal habeas.

Dr. Faye Sultan is a psychologist and she was retained by Thompson for the federal habeas proceedings.

She examined Thompson and concluded that he was likely suffering serious mental illness at the time of the murder that would have been a mitigating circumstance under Tennessee Law.

Sultan prepared an expert report on Thompson's behalf and was also deposed by the state.

The District Court and the Court of Appeals for the Sixth Circuit denied habeas relief.

They held Thompson had not presented any significant probative evidence that he was suffering from a significant mental disease that should have been presented to the jury during the punishment phase.

Sultan's deposition and report although presented to the District Court as part of an untimely Rule 60(b) motion, had not been properly included in the District Court summary judgment record, apparently because of attorney negligence.

The Court of Appeals denied a petition for rehearing but state issuance of its mandate while this Court considered a petition for certiorari and a petition for rehearing.

After we denied the petition for rehearing in this Court, the Court of Appeals did not issue its mandate.

The state, under the apparent assumption that the federal habeas corpus proceedings have terminated scheduled Thompson's execution.

On June 23, 2004, some seven months after this Court denied certiorari, the Court of Appeals for the Sixth Circuit issued an amended opinion in Thompson's federal habeas case.

The new decision vacated the District Court's judgment denying habeas relief and remanded the case for an evidentiary hearing on Thompson's ineffective assistance of counsel claim.

The Court of Appeals relied on its equitable power to supplement the record based on Sultan's report and deposition.

The Court of Appeals for the Sixth Circuit justified its amended opinion based on the court's inherent power to reconsider its own earlier opinion prior to issuance of mandate.

The state sought review of that decision and we granted certiorari.

We now hold, assuming arguendo that the Federal Rule of Appellate Procedure 41 does authorize a stay of mandate following the denial of certiorari and also that the court may stay a mandate without entering a formal order that here the Court of Appeals abused its discretion in doing so.

Among our concerns is the length of time between this Court's denial of certiorari and the Court of Appeals issuance of its amended opinion.

The Court of Appeals delayed issuing its mandate for over five months after this Court denied rehearing.

The consequence of delay for the state's criminal justice system was compounded by the Court of Appeals failure to issue an order or otherwise give notice to the parties that the Court was reconsidering its earlier opinion.

This in turn, led the various proceedings in State and Federal Court to determine Thompson's present competency to be executed.

All of the steps were taken in reliance on the mistaken impression that Thompson's first federal habeas case was final.

The normal mechanism for correcting errors in the Courts of Appeals is the petition for rehearing.

Indeed, in this case, Thompson's petition for rehearing presented the same arguments based on the Sultan evidence that eventually were adopted by the Court of Appeals in the amended opinion.

Our review of the Sultan deposition reinforces our conclusion that the Court of Appeals abused its discretion but withholding a mandate.

Had the Sultan deposition report been fully considered in the federal habeas proceedings, it would have been relevant to the District Court's analysis.

Relevant though the Sultan evidence may be however, it is not of such a character as to warrant the Court of Appeals extraordinary departure from standard appellate procedures.

Sultan examined Thompson 13 years after his crime and conviction.

She relied on the deterioration in Thompson's present mental health, something that obviously was not observable at the time of the trial as evidence of what his condition might have been in 1985.

Indeed there was a marked decline in Thompson's condition during the six month period between Sultan's first two visits.

Sultan's findings regarding Thompson's condition in 1985 are contradicted by the testimony of two experts who did examine him at the time of trial and found that he suffered from no mental illness.

Thompson's trial attorneys chose no to pursue a mitigation strategy based on mental illness.

Instead, they stressed character evidence from family and friends and expert testimony that he had the capacity to adjust to prison.

This strategic calculation while ultimately unsuccessful was based on a reasonable investigation into Thompson's background.

One last consideration informs our review of the Court of Appeals actions.

This case arises from federal habeas corpus review of a state conviction.

We have previously recognized that federalism concerns arising from the unique character of federal habeas review of State Court judgments require an additional presumption in favor of finality.

In this case, a dedicated United States Circuit judge discovered what he believed to have been an error in the previous opinion and we are respectful of the Court of Appeals willingness to correct a decision that it perceived to have been mistaken.

The court's discretion under Rule 41 must be exercised, however, in a way that is consistent with the state's interest in the finality of convictions that have survived direct review within the State Court system.

By withholding the mandate for months based on evidence that supports only an arguable constitutional claim while the state prepared to carry out Thompson's sentence, the Court of Appeals did not accord the appropriate level of the respect to that judgment.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

Justice Breyer will announce his dissenting opinion and it is an opinion in which Justices Stevens, Souter, and Ginsburg join.

Argument of Justice Breyer

Mr. Breyer: As Justice Kennedy said, Justice Stevens, Justice Souter, Justice Ginburg and I dissent in this case.

It is a capital case.

It arises out of unusual circumstances of a kind that I have not seen before in the 25 years that I have served in the federal bench.

It may sound complicated and technical but it is not; it is simple.

After the Court of Appeals wrote and issued its decision, and after the rehearing petition was denied, but before the Court issued its mandate, the panel's writing judge happened to come across a document that had been inexplicably omitted from the record.

It was a psychiatric report based upon a childhood investigation that concluded that petitioner suffered from bouts of schizophrenia at the time of the crime.

The judge, after spending hundreds of hours reviewing what was a vast record, concluded that the panel's initial opinion was clearly wrong.

It said there was no such evidence that the document was critically important and that to ignore that document would lead to a miscarriage of justice.

Consequently, the panel rewrote its decision and it corrected the error.

The Court now holds that the panel abused its discretion in doing that.

Well, how could that be so?

The majority does not claim that the panel was trying to skirt any statutory restrictions, say the restrictions that limit the filling of second habeas petitions.

Our Court does not claim that the panel's action reflected anything other than what it purported to be, a good faith effort to cure an inadvertent error in a death case to avoid potential miscarriage of justice and those tempted to believe that the document is not seriously and significantly related to the adequacy of trial counsel's performance, or for some other reason is unimportant, might simply read it.

It is attached to the dissent.

What, I repeat, was the panel supposed to do?

Ignore the error?

We in dissent believe the Court is wrong in this case and more than that, a legal system is based on rules, it also seeks justice in the individual case.

Sometimes, those ends conflict.

To take account of that possible conflict, the system often grants judges a degree of discretion thereby providing oil for the rule based gears.

By reversing the panel today, the Court tells other courts not to act where they believe similar action is necessary to avoid serious injustice in similar cases.

The consequence is to divorce the rule based result from the just result.

Our judicial systems seeks to avoid that divorce.

Today's case we figure is an unfortunately step in the wrong direction.