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A Second Chance for Gregory Thompson?

On April 26, the Supreme Court will hear oral arguments in Bell v. Thompson, No. 04-514. The issue before the Court is whether or not the Sixth Circuit abused its discretion by withdrawing its opinion affirming the denial of habeas corpus relief six months after Federal Rule of Appellate Procedure 41(d)(2)(D) made issuance of the mandate mandatory, without notice to the parties or any finding that the court’s action was necessary to prevent a miscarriage of justice, in light of the fact that enforcement of the inmate’s death sentence had progressed in reliance upon the finality of the judgment in the federal habeas proceedings.

It is uncontested that in 1985, Gregory Thompson, a diagnosed schizophrenic, brutally murdered 29-year-old newlywed Brenda Blanton Lane. He received a death sentence from a Tennessee jury for this crime. After losing appeals in the Tennessee state courts, Thompson filed a habeas petition with the United States District Court for the Eastern District of Tennessee, which summarily denied relief. That court explained 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 this summary denial of Thompson’s habeas claim.

At issue on appeal before the Sixth Circuit was whether or not Thompson’s lawyers had been negligent in failing to present information about his mental illness to the jury during his sentencing hearing. By a vote of 2-1 the Court found that trial counsel had not been negligent. 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. In December 2003, the Supreme Court denied cert. Having exhausted his appeals, Thompson’s execution was scheduled for August 19, 2004.

In the meantime, on June 14, 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. On June 21, 2004, the district court granted a “brief stay” of Thompson’s execution, with the stay to expire automatically upon issuance of an order of the court denying habeas relief but to remain in place upon issuance of an order granting the writ. Then, on June 23, 2004, in a remarkable turn of events, the Sixth Circuit issued a second opinion in the case.

In the month leading up to the second opinion an intern for Senior Judge Richard Suhrheinrich was reviewing the case and found the deposition testimony – not included in the district court record – of a clinical psychologist that the court deemed “extremely probative” of Thompson’s mental state at the time of the crime. The intern, a board-certified psychiatrist, brought this to the attention of Judge Suhrheinrich, who had initially ruled against Thompson. Judge Suhrheinrich reviewed the case file and decided to change his vote. The court thus vacated its earlier opinion, explaining that the new testimony created a factual dispute regarding Thompson’s mental state that precluded summary dismissal of his petition.

The Sixth Circuit was able to rescind its initial opinion and send the case back to the district court for rehearing because the mandate had not yet issued. However, the Federal Rules of Appellate Procedure require timely issuance of mandates. It is unclear why the mandate, which would have formally closed the case, was not issued immediately after the first opinion.

The State of Tennessee, which has only executed one person since 1960, argues that the Court was not legally allowed to change its mind. In its 1998 decision in Calderon v. Thompson, the Supreme Court held that, given a State’s strong interest in the finality of its criminal convictions, a federal court of appeals abuses its discretion when it recalls its mandate to revisit the merits of an earlier decision denying habeas relief to a state prisoner, unless it acts to avoid a miscarriage of justice. The state contends that the issuing a second opinion is equivalent to withdrawing a mandate. In order to demonstrate a miscarriage of justice, Thompson’s attorneys must show by clear and convincing evidence that “no reasonable juror would have found him eligible for the death penalty in light of the new evidence.”(quoting Sawyer v. Whitley, 505 U.S. 333, 348 (1992)). The State of Tennessee argues that the Respondents cannot meet this standard.

On the other hand, Thompson’s attorneys – including former Acting Solicitor General Walter Dellinger – argue that the court should be allowed to correct itself. They claim that Rules 41(b) and (d)(1) of the Federal Rules of Appellate Procedure grant a court of appeals the discretion to stay and withhold issuance of its mandate following a denial of a writ of certiorari from the Supreme Court. Furthermore, they maintain that regardless of whether or not the 6th Circuit had the discretion to revisit the mandate, this case meets the miscarriage of justice standard. If Thompson prevails he will likely receive a new sentencing hearing. If he loses there will still be an issue as to whether or not he is mentally competent enough to be executed; Thompson believes that he would remain alive for two years after lethal injection and have the opportunity to take a long-awaited trip to Hawaii.

Here are the Merit’s briefs ; the Sixth Circuit’s second opinion; and the petition for certiorari in the case.