Edward Bell, a Jamaican immigrant convicted of killing a police officer, is scheduled to be executed in Virginia on February 19 despite a conclusion by a federal District Court that his lawyers failed to present any mitigating evidence at his trial. Judge James Jones of the Eastern District of Virginia held that the representation Bell received violated constitutional standards. However, a new sentencing hearing to explore the ample mitigating evidence that existed was never granted. According to the clemency petition filed for Bell, "Judge Jones said in a colloquy with the representative of the Attorney General, 'You’ll agree that there was zero mitigation evidence presented in this case. The brief testimony that was presented, again, as I think the witnesses have agreed, really probably hurt Bell more than they helped him. Certainly those witnesses, there was nothing elicited from them that did anything to shed any light on Bell or his character or motives or background.' Again speaking to the representative of the Attorney General, Judge Jones summarized the situation: defense counsel 'present[ed] no mitigating evidence, zero mitigating evidence. The prosecutor said it, you agree, I agree. The defense counsel presented zero.'"
Edward Lee Elmore, South Carolina’s longest-serving death row inmate, was spared from execution when a state circuit court ruled he suffered from mental retardation. The sentence reversal came almost 28 years after Elmore was sent to death row in 1982 for a sexual assault and murder, and 8 years after the U.S. Supreme Court held in Atkins v. Virginia that the execution of the mentally retarded is a cruel and unusual punishment, and therefore violates the Eighth Amendment. The decision left defining “mentally retarded” to individual states. Elmore failed and repeated first grade twice, failed and completed second grade once, and did not finish third grade until he was 12. He then withdrew from fifth grade when he was 15. In 1971, at age 12, Elmore's IQ tested at 72 and 58 on separate tests.
On June 1, in the case of Bobby v. Bies, the U.S. Supreme Court unanimously ruled that Michael Bies had to bring his claim of mental retardation before a separate state hearing, thereby reversing the lower federal courts that held such a hearing would constitute double jeopardy. The Court held that Ohio could contest Bies' assertion that he is mentally retarded and that this does not subject Bies to double jeopardy, despite the fact that the Ohio Supreme Court in 1996 had recognized his mental retardation as a mitigating factor in upholding his original death sentence. The Court made clear that it intended the states to have the primary responsibility for implementing Atkins. (In 2002, the United States Supreme Court held in Atkins v. Virginia that the Eighth Amendment to the Constitution bars execution of mentally retarded offenders.). Justice Ginsburg wrote the opinion in Bies.
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.