Bies v. Bagley

Four Article III judges have reviewed this case, and each of them has come to the same conclusion — that the Double Jeopardy Clause bars the State from litigating Bies’ eligibility for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). They may be right. I write today, however, simply to point out that there may be another side to the story.

In 1992, Michael Bies and a friend attempted to rape a ten-year-old boy, beat him severely when he resisted, then left him to die. State v. Bies, 74 Ohio St.3d 320, 658 N.E.2d 754, 756-57 (1996). An Ohio jury…