Herman Charles Barnes v. Charles E. Thompson, Warden, Herman Charles Barnes v. Charles E. Thompson, Warden

The majority today announces a new rule of Virginia state law — that the “vileness” predicate may be met in sentencing a capital defendant to death irrespective of whether the defendant observed that the victim was armed and resisting at the time the defendant fired the final shot, so long as the defendant inflicts a number of wounds and there is a lapse of time between the first wound and the wound that ultimately causes the death. Because I do not believe that the federal judiciary should announce a new rule of state criminal law when the state’s highest court has indicated that it would…