Rogers, Wilbert v. Tennessee (05/14/2001)

By: Kari Neumeyer, Medill News Service

Questions presented

Whether the ex post facto application of a judicial ruling abrogating the substantive rule of criminal law known as the ""year-and-a-day rule"" to a homicide committed five years prior to the change in the substantive rule of law violates the 5th and 14th Amendments of the U.S. Constitution?

Brief

In May 1994, angry about an outstanding debt, Wilbert K. Rogers stabbed his friend in the heart with a butcher knife.

The victim, James Bowdery, remained comatose in a Memphis, Tenn., hospital for 16 months, until he died from a kidney infection. The medical examiner ruled that the death was caused by cerebral hypoxia (oxygen deficiency) ""secondary to a stab wound to the heart.""

Rogers was found guilty of second degree murder by a jury in Shelby County, and sentenced to 33 years in prison, despite arguing that he shouldnt have been charged with murder because the death did not occur until more than a year and a day after the fatal wound was inflicted.

Tennessee had a common law statute dating back to the 13th century that was acknowledged by the U.S. Supreme Court in 1894, indicating that ""no person should be adjudged by any act whatever to kill another who does not die by it within a year and a day after.""

The year-and-a-day rule was ""basically ignored"" at the trial court, according to former public defender Walker Gwinn, who represented Rogers.

In 1997, the Tennessee Court of Criminal Appeals affirmed the conviction, finding that the year-and-a-day rule was not in effect at the time of the assault and Bowderys subsequent death because it was abolished by the Criminal Sentencing Reform Act of 1989.

The Tennessee Supreme Court affirmed, though the unanimous court agreed with Rogers' attorneys that because the act did not address the year-and-a-day rule explicitly, it had not repealed it.

""The 1989 Criminal Code didnt say [the legislature] repealed it,"" argued W. Mark Ward, one of the attorneys for Rogers, ""It just didnt mention it at all.""

However, in the opinion that was issued in May 1999, only a month after oral arguments were heard, the Tennessee Supreme Court also found that the year-and-a-day rule was antiquated and should have been abolished.

""It was a remnant from the days when medicine and science, both as to diagnosis and treatment, were so unsophisticated that mortally wounded persons commonly died shortly after the infliction of a grievous wound,"" wrote Tennessee Supreme Court Justice Frank F. Drowota, III. ""In such circumstances, it was reasonable to presume that if a wounded person died more than a year from the time of the wound, the cause of death was other than the wound.""

In so concluding, the Tennessee Supreme Court abolished the year-and-a-day rule and applied it retroactively to Rogers. ""We conclude that judicial abrogation of the year-and-a-day rule is not an unexpected judicial construction that is indefensible by reference to prior law,"" the opinion stated, in addressing whether its opinion violated the ex post facto clauses of the U.S. and Tennessee constitutions.

The U.S. Supreme Court granted certiorari on May 22, 2000 and allowed Rogers to proceed in forma pauperis. In urging the Court to accept the case, Rogers' attorneys claimed that retroactively applying the repeal of a statute to Rogers violated his rights under the ex post facto clause.

In ruling that Rogers could not invoke the year-and-a-day rule to cast doubt as to causation of death, the state Supreme Court was effectively saying that ""he should have known [the state] might repeal the year-and-a-day rule, because other states have,"" Ward said.

The Supreme Court case has nothing to do with whether the year-and-a-day rule should or should not exist, Ward noted.

""The U.S. Supreme Court has no jurisdiction over that,"" Ward said. ""But whether [the state] can change the rule five years later and apply it is a federal (constitutional) matter.""

On May 14, 2001, a divided Court affirmed, holding that Tennessee's retroactive application of its decision abolishing the ""year-and-a-day"" rule did not deny Rogers due process. The Court split 5-4, with Justice Sandra Day O'Connor writing the majority opinion, for herself, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Chief Justice William Rehnquist.

Justices Antonin Scalia, John Paul Stevens, Stephen Breyer each penned dissents. Justice Clarence Thomas also dissented. Justice Scalia was most troubled that the law here was altered after the fact in the most plain respect that Rogers was convicted ""for a murder that was not murder (but only manslaughter) when the offense was committed.""

In Stevens' one paragraph dissent, he was disturbed that ""the majority has undervalued the threat to liberty that is posed whenever the criminal law is changed retroactively.""