Today’s Opinion in Bell v. Thompson

Bell v. Thompson

One of the opinions handed down by the Court today was a decision in Bell v. Thompson. The majority declined to reach the question of whether the Federal Rule of Appellate Procedure 41 permitted the court of appeals to withhold a mandate until it had resolved this case. Rather, the majority found that, even assuming that Rule 41 authorizes stay of a mandate following denial of certiorari, and further assuming that a court can stay the mandate without entering an order, the Sixth Circuit’s decision to do so in this case constituted an abuse of discretion.

Justice Kennedy delivered the opinion of the Court, which Chief Justice Rehnquist and Justices O’Connor, Scalia, and Thomas joined. Justice Breyer filed a dissenting opinion which Justices Stevens, Souter, and Ginsburg joined.

Justice Kennedy’s majority opinion offered several reasons why the Sixth Circuit’s action amounted to an abuse of discretion. Justice Breyer’s dissent emphasized the extensive document review undertaken by Judge Suhrheinrich of the Sixth Circuit and the judge’s correspondingly extensive explanation (30,000 words) of why an amended opinion was necessary.

Justice Kennedy’s Majority Opinion
Justice Kennedy’s majority opinion offered several reasons why the Sixth Circuit’s action amounted to an abuse of discretion. First, Sixth Circuit’s decision to delay its issuance of a mandate without either an order or notice to the parties imposed substantial costs on the time and resources of the state’s criminal justice system, which had proceeded with scheduling Thompson’s execution and competency proceedings on the assumption that the federal habeas case was final. Second, the Sultan deposition that formed the basis for the Sixth Circuit’s decision was not actually unknown to the panel. As Justice Kennedy explained, “[a]lthough the Sultan evidence was not part of the . . . summary judgment record, the documents were included in the certified record on appeal as attachments to Thompson’s Rule 60(b) motion.” Justice Kennedy also addressed the dissent’s argument that the petition for rehearing “did not adequately bring the Sultan evidence to the attention of the Court of Appeals,” finding that “[t]his is simply untrue. . . . The petition for rehearing . . . placed the Sultan evidence front and center.”

The third reason for the majority’s disapproval of the Sixth Circuit action was its determination that “[r]elevant though the Sultan evidence may be . . . there are ample grounds to conclude the evidence was unlikely to have altered the District Court’s resolution of Thompson’s ineffective-assistance-of-counsel claim.” The fourth reason was that subsequent evidence of Thompson’s mental illness did not necessarily mean that trial counsels’ decision to pursue a mitigation strategy emphasizing Thompson’s positive character traits, rather than his possible mental illness, had been unreasonable. Thompson’s trial counsel had interviewed the witnesses that Dr. Sultan relied on to draft her report but “[c]onsultation with these witnesses when combined with the opinions of [two expert witnesses] provided an adequate basis for Thompson’s attorneys to conclude that focusing on Thompson’s mental health was not the best strategy.” According to Justice Kennedy, while “Sultan’s testimony provides some support for the argument that the strategy of emphasizing Thompson’s positive attributes was a mistake in light of Thompson’s deteriorated condition 13 years after the trial . . . [t]his evidence, however, would not come close to satisfying the miscarriage of justice standard” established by the Court in Calderon v. Thompson, 523 US 538 (1988).

In concluding, Justice Kennedy cited the importance of federalism concerns to the Court’s decision. “Here a dedicated judge discovered what he believed to have been an error, and we are respectful of the Court of Appeals’ willingness to correct a decision that it perceived to have been mistaken. A court’s discretion under Rule 41, however, must be exercised 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.’ . . . Tennessee expended considerable time and resources in seeking to enforce a capital sentence . . . that reflects the judgment of the citizens of Tennessee . . . By withholding the mandate . . . the Court of Appeals did not accord the appropriate level of respect to that judgment.”

Justice Breyer’s dissent
Justice Breyer’s passionate and passionately delivered dissent focused on the “unusual circumstances” of this case and the dilemma facing the court of appeals judge who “[a]fter an appellate court writes and releases an opinion, but before it issues its mandate . . . comes across a document that (he reasonably believes) shows not only that the court’s initial decision is wrong but that the decision will lead to a serious miscarriage of justice.” In coming to the conclusion that there was no “abuse” of discretion in the panel’s effort to “correct a decision that it perceived to have been mistaken,” Justice Breyer’s opinion emphasized the extensive document review undertaken by the judge and his staff and the judge’s correspondingly extensive explanation (30,000 words) of why an amended opinion was necessary.

For Justice Breyer, this case presented the Court with a problem of jurisprudence and principle. As Justice Breyer commented, “A legal system is based on rules; it also seeks justice in the individual case. Sometimes these ends conflict. To take account of such conflict, the system often grants judges a degree of discretion, thereby providing oil for the rule-based gears. When we tell the Court of Appeals that it cannot exercise its discretion to correct the serious error it discovered here, we tell courts they are not to act to cure serious injustice in similar cases. The consequence is to divorce the rule-based result from the just result.” To Justice Breyer and the Justices joining in his dissent, the majority opinion in Bell “takes an unfortunate step in the wrong direction.” To bolster his point, Justice Breyer included as an appendix to his opinion excerpts from Dr. Sultan’s psychological assessment of Gregory Thompson.

Procedural History
In 1985, a Tennessee state court jury convicted Gregory Thompson for the killing of newspaper reporter Brenda Blanton Lane. Thompson’s state-appointed counsel did not put any defense on at trial but did, at sentencing, seek to show that Thompson was schizophrenic. Thompson was examined by psychologists hired by the state and by his counsel. Both reached the conclusion that Thompson was not ill at the time of the examination. The jury hearing Thompson’s case sentenced Thompson to death.

Thompson initiated state post-conviction proceedings in 1990. An expert witness retained to assist in these proceedings testified to Thompson’s serious schizophrenic symptoms. The State conceded that, since incarceration, Thompson had been on a regime of antipsychotic drugs. Yet Thompson’s mental state at the time of the crime remained an open question, as Thompson’s expert witness declared herself unable to determine this without further investigation.

After losing his appeals in the Tennessee state courts, Thompson filed for habeas relief, claiming that he had received ineffective assistance at trial, due to his counsel’s failure to bring in evidence of his mental health background. Dr. Faye Sultan, the expert witness hired to assist in this proceeding conducted an extensive investigation of Thompson’s mental health history, interviewing his family members and reviewing his legal, military, medical, and prison records. She concluded that Thompson had been suffering “serious mental illness . . . that would have substantially impaired [his] ability to conform his conduct to the requirements of the law” at the time of his 1985 offense. However, the district court dismissed Thompson’s habeas petition, finding that Thompson had not “provided this Court with 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 as mitigation evidence.” In June 2003, the Sixth Circuit affirmed the district court’s summary denial of Thompson’s habeas claim, finding that Thompson’s counsel had not been negligent in failing to present information about his mental illness to the jury during his sentencing hearing. Like the district court, it emphasized that none of Thompson’s post-trial experts had indicated that Thompson suffered from a mental illness at the time of his crime.

Thompson then sought cert. and the court of appeals withheld issuance of its mandate while the case was under review by the Supreme Court. In December 2003, the Supreme Court denied cert. Thompson’s execution was scheduled for August 19, 2004.

In June 2004, Thompson filed another petition for writ of habeas corpus in the United States District Court for the Eastern District of Tennessee, asserting a claim of incompetency for execution under the Supreme Court’s 1986 decision in Ford v. Wainwright. While Thompson’s Ford claim was pending with the district court, the Sixth Circuit issued an amended opinion in Thompson’s initial federal habeas case. The basis offered for this amended opinion was that Dr. Sultan’s deposition, which was “probative of Thompson’s mental state at the time of the crime,” had been “apparently negligently omitted” from the record. The authority was the court of appeal’s “inherent authority to reconsider our opinion prior to the issuance of a mandate, which has not yet issued in this case.”