Bell, Ricky (Warden) v. Thompson, Gregory (06/27/2005)

Question presented: Did the 6th Circuit abuse its discretion by withdrawing its opinion affirming the denial of habeas corpus relief six months after Fed. R. App. P. 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, particularly where state judicial proceedings to enforce the inmate's death sentence had progressed in reliance upon the finality of the judgment in the federal habeas proceedings?

BY KAREN CALABRIA, MEDILL NEWS SERVICE

Before Gregory Thompson was granted a stay of execution in the summer of 2004, the diagnosed schizophrenic said he believed he would remain alive for two years after lethal injection and have the opportunity to take a long-awaited trip to Hawaii.

The Tennessee inmate, who would be the second person executed in the state since 1960, does not dispute his guilt in the 1985 murder of a 29-year-old Shelbyville woman.

What is in question, however, is the depth of Thompson's mental illness and whether information about his disease was adequately conveyed to the jury during his sentencing hearing.

Twenty years ago, Thompson and a juvenile accomplice kidnapped Brenda Lane Blanton at knifepoint from a Wal-Mart parking lot. Blanton had stopped into the store to pick up aluminum foil on her way home from work on New Year's Day, 1985.

Thompson forced Blanton, a newspaper reporter who once received the Outstanding Young Woman of Bedford County Award, to drive them to Manchester, TN. He stabbed her four times with the rusty butcher knife and left the newly wed Blanton to bleed to death as he and his partner sped away in her car.

After being collared by local authorities, Thompson led police to Blanton's body. But he maintains to this day that the murder was necessary to avoid a mob of Ku Klux Klansmen intent upon killing him.

Although Thompson was not diagnosed with a mental illness until he was incarcerated, his prison medical records, more than 4,000 pages long, indicate that his mental state has been in sharp decline since 1985. He has been prescribed a variety of anti-psychotics for the past 19 years.

While the medication alleviates some of the symptoms of Thompson's bipolar schizo affective disorder, he is still deluded enough to believe that the prison is actually a slave ship, with prison guards serving as slave traders, according to his lawyer Dana Hansen Chavis.

During a televised interview with BBC shortly before his scheduled execution, Thompson alleged that he had written most of the songs on the top forty pop charts. When the reporter asked the inmate to sing a part of his favorite composition, Thompson broke into a melancholy rendition of the Luther Vandross hit, "Always and Forever."

Last year, with all avenues of appeal exhausted, preparations were underway to carry out Thompson's execution when the 6th Circuit Court of Appeals issued a controversial second opinion on June 23, 2004. The decision came a full 18 months after the court's original 2-1 ruling against Thompson in January 2003.

Jennifer Smith, a lawyer for the state, said the decision came "out of the blue," and that neither she nor Thompson's lawyer knew the 6th Circuit was rethinking its decision.

"We thought, ‘Wait a minute! This case is over. We've moved on from that. You've had your chance'," Smith said.

The court's first opinion found that Thompson's lawyers had not been negligent in presenting information about his mental illness to the jury during the sentencing hearing. A petition to the U.S. Supreme Court to appeal this decision was denied in December 2003.

Following standard procedure, Tennessee officials began making preparations for Thompson's execution. An execution date of Aug. 19, 2004 was set.

But as Thompson and the state engaged in routine hearings to judge whether or not the inmate was mentally competent enough to be executed, information was brought to light in Cincinnati that changed the course of Thompson's execution.

According to the June 2004 opinion, an intern for 6th Circuit Senior Judge Richard Suhrheinrich was reviewing the court's recent death penalty cases while researching a law review article.

The intern, also a board-certified psychiatrist, brought several depositions to Judge Suhrheinrich's attention that indicated Thompson's psychiatric experts had never directly addressed whether or not the inmate was mentally ill at the time of the crime or the sentencing.

After a thorough investigation of the entire case file, Suhrheinrich, who ruled against Thompson in the initial opinion, found that the 6th Circuit's previous ruling had been decided erroneously.

"The question…is whether our prior ruling was mistaken, because there is, and was, in fact available proof that Thompson was suffering from a serious mental disease or defect at the time of the 1985 offense which would have substantially impaired his ability to conform his conduct to the requirements of the law," Suhrheinich wrote in concurring with the panel's opinion.

The discovery of the depositions led the court, prompted by Suhrheinrich, to rescind its initial opinion and send the case back to the district court for rehearing.

In the panel's lead opinion, Judge Karen Nelson Moore acknowledged the question of the court's authority to issue another opinion.

"It remains to be explained the source of our power to so reconsider our earlier decision," Moore wrote. "Instead, we rely on our inherent power to reconsider our opinion prior to the issuance of the mandate, which has not yet issued in this case."

While the state acknowledges the court was acting on noble intentions, it maintains that, legally, the court wasn't allowed to change its mind.

After the Supreme Court's final denial to hear the appeal, a mandate was supposed to be issued by a law clerk in the 6th Circuit, formally closing the case. But, for some reason, a mandate was never filed during the 198 days between the Supreme Court's denial of Thompson's petition for review and the 6th Circuit's revised opinion.

"The rules require the mandate be issued immediately upon denial of certiorari [by the Supreme Court]," said Smith, adding that the 6th Circuit can't use the fact that the mandate wasn't filed to justify changing its mind.

"A state must be able to rely upon the finality of a federal court judgment and must be able to proceed with the state court judgment without fear of the federal court coming back with another opinion," Smith said.

But Thompson's lawyer argues that the court should be able to correct itself.

"Their first decision was based on mistaken facts," Chavis said.

Smith said that should the best case scenario pan out for Thompson, "what we might be facing is another five years of delay before the state may be able to execute its judgment on a crime that was committed in 1985."

"I hadn't even gone to law school at that time," Smith said.

What's at stake now is the answer to a simple question, according to Chavis: "Are the rules so strict that the court isn't allowed to carry out justice?"

On Jan. 7, 2005, the Supreme Court accepted review in the case and allowed Thompson to have the case heard without costs. The Court limited review to the second question in Tennessee's petition.

If the Supreme Court finds in favor of Thompson and subsequent proceedings determine that the degree of his mental illness was not properly presented during the initial sentencing, Thompson would be awarded a new sentencing hearing.

"In the end, the result may be exactly the same," Smith said. "Thompson might still end up with the death penalty if the district attorney decides to pursue it."

On June 27, 2005, the final day of the Court's 2004-05 term, a divided Court did not touch Thompson's death sentence. The Court held 5-4 that the 6th Circuit's action to have the case remanded for an ineffective assistance of counsel hearing was an abuse of disretion.

Writing for the majority, Justice Anthony Kennedy concluded that the scheduling of Thompson's execution was reasonable and that the 6th Circuit's actions were an extraordinary departure from standard procedures.

Justices Stephen Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented.