The Supreme Court gave Tennessee the green light to execute a convicted murderer yesterday, despite a federal appeals court's unusual admission that it made a mistake in denying one of the man's earlier appeals.
By a vote of 5 to 4, the court ruled that a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, had failed to "accord the appropriate level of respect" to the state courts of Tennessee when it reversed itself and tried to stop the execution of Gregory Thompson last year. The panel cited previously undiscovered evidence that Thompson was schizophrenic at the time of the crime.
"Tennessee expended considerable time and resources in seeking to enforce a capital sentence rendered 20 years ago, a sentence that reflects the judgment of the citizens of Tennessee that Thompson's crimes merit the ultimate punishment," Justice Anthony M. Kennedy wrote for the court.
But a clearly irritated Justice Stephen G. Breyer, reading his dissenting opinion from the bench in a show of strong disapproval for the majority's opinion, said that the court may have countenanced a "miscarriage of justice."
Breyer was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. Kennedy was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.
Convicted of murder and sentenced to death in 1985, Thompson later attempted to prove that his constitutional right to effective counsel had been violated because his defense attorneys did not find evidence of his major mental illness and use it to plead for mercy from the jury that sentenced him.
In 2003, the 6th Circuit denied this appeal. The Supreme Court twice refused to consider the case, the last time in early 2004.
By that time, an intern for Senior Judge Richard F. Suhrheinrich, a conservative appointee of President George H.W. Bush, had gone back into the record of the case and discovered a doctor's report suggesting that Thompson had indeed been schizophrenic at the time of the crime, and his attorneys could have found out in 1985.
After the Supreme Court had disposed of the case, Suhrheinrich wrote a 30,000-word opinion explaining why Thompson should get a new hearing on his claim, lest he be executed without a full opportunity to protect his rights.
In June 2004, the 6th Circuit ordered a halt to Tennessee's plans for an execution, noting that it had not technically issued a mandate enforcing its previous denial of Thompson's appeal.
But, in the meantime, the state of Tennessee, assuming that the Supreme Court's refusal to hear Thompson's case finalized the case anyway, set an execution date. The state appealed to the Supreme Court, saying that the 6th Circuit was not legally allowed to change its mind.
The 6th Circuit was wrong to try to redo the case in part because the new evidence "would not come close to satisfying the miscarriage of justice standard" set by Supreme Court precedent, Kennedy wrote.
But Breyer noted that "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 case is Bell v. Thompson, No. 04-514.