WASHINGTON (AP) — The Supreme Court appeared likely Monday to give the state of Ohio another chance to sentence a convicted killer to death, despite a previous factual finding that the man is mentally retarded.

The justices heard arguments in the case of Michael Bies, who was convicted in 1992 of killing a 10-year-old boy in Cincinnati and sentenced to death after a jury found his mental state did not outweigh the heinous nature of the murder.

But his death sentence was thrown into question after the Supreme Court’s 2002 decision that barred execution of the mentally disabled.

A federal appeals court later overturned the death sentence, finding that the Ohio Supreme Court made a finding that Bies was mentally retarded and had an IQ of 69 when it upheld his conviction and death sentence in 1996.

Ohio Solicitor General Benjamin Mizer argued that the state courts never determined whether Bies was mentally retarded under the new standards set forth in 2002. Rather, he said, the state court merely considered mental capacity as one of several factors in weighing whether he should be sentenced to death.

Mizer also said the protection against double jeopardy — being tried twice for the same offense — does not apply to Bies since he was found guilty in the first case.

“Mr. Bies has never been acquitted of the death penalty in any sense of the word,” Mizer said.

Several of the court’s liberal justices seemed to agree with Mizer that the state courts were considering Bies’ mental capacity in a completely different context — one that would not preclude them from reevaluating his mental state under the high court’s new standard.

Justices Ruth Bader Ginsburg and David Souter aggressively questioned Bies’ attorney, John Blume, and challenged his argument that state courts had thoroughly considered Bies’ mental state.

“An intermediate finding, say mitigation, on the way to the ultimate conclusion, life or death, is not the same issue as if retardation is found, no death penalty,” Ginsburg said.

Blume argued that the rules of double jeopardy should bar the state from reopening the question of Bies’ mental capacity.

But Ginsburg said rules against litigating the same issue twice would not apply unless Bies had been acquitted the first time around.

“I am not aware of issue preclusion operating against a judgment winner,” Ginsburg said. “Issue preclusion is for the party who fought this out and won.”

Blume argued it could apply “if there is a later legal ruling which means the significance of that fact would either absolve the criminal defendant of liability or make him ineligible for death,” Blume said.

But Souter said it sounded like Blume was asking the court to come up with a “brand new rule.”

“We have never held this, and I don’t know of any court that’s ever held this,” Souter said.

Chief Justice John Roberts agreed with Mizer that the incentives for prosecutors were different the first time around, when mental condition was simply one of several mitigating factors and the case could be won on other issues.

Bies, 36, and an accomplice, Darryl Gumm, were convicted of killing Aaron Raines in an abandoned building after the boy refused to perform a sexual act. The men beat him with a wooden board, metal pipe and block of concrete.

Gumm, 43, also received a death sentence, but it was commuted in 2007 to 48 years to life after a trial and appeals court upheld his mental disability claim.

 

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