- The Washington Times - Tuesday, May 22, 2001

The law should warn before it strikes, a precept the United States Supreme Court recently tarnished in a ruling that should shock partisans of all persuasions.

Without fair warning, criminal justice becomes a Kafkaesque snare and delusion, a first cousin of Emperor Caligula´s reviled practice of printing the laws microscopically and posting them beyond eyesight high on a wall.

Wouldn´t it be unthinkable to punish as a violation of the Decalogue a lusting of the heart where only adultery is proscribed? That may make good theology (for instance, Saint Paul preached that the "letter killeth, but the spirit giveth life"), but it would be monstrous secular law.

The United States Supreme Court, nevertheless, sprinkled its blessing last week on a comparable outrage. In Rogers vs. Tennessee (May 14, 2001), a 5-4 majority commanded by Justice Sandra Day O´Connor insisted that the Constitution´s denunciation of ex post facto laws was undisturbed by a retroactive Tennessee Supreme Court ruling deleting an element of the common law crime of murder. In a blistering dissent, Justice Antonin Scalia assailed the majority for exalting form over substance in eroding a pivotal barrier to government oppression.

The case was refreshingly simple. According to the Tennessee Supreme Court, the common law (i.e., judge-made law) of the state made an element of murder at the time Wilbur K. Rogers stabbed to death James Bowdery proof that his victim died within a year and a day. Bowdery died after 15 months.

The Tennessee Supreme Court, however, sustained Rogers´ second degree murder conviction by retroactively eliminating the "year and a day rule." Any citizen of common intelligence and without resort to clairvoyance, the state court explained, would have known that the rule was a relic of the past destined to tumble before modern science. The retroactive abandonment of the year and a day rule thus satisfied the fair warning core of the ex post facto safeguard. The United States Supreme Court affirmed. Article I, section 10, clause 1 of the Constitution declares that "o state shall …pass any ex post facto Law." It chiefly thwarts laws that would transform behavior innocent when committed into a punishable crime.

Experience teaches that legislatures are more wont than common law courts to succumb to ex post facto abuses because more responsive to passions and prejudices that seize the community from time to time. But the judiciary is not immune from the disease, as highlighted during the racist days of Jim Crow and its ultimate overthrow by the Civil Rights movement in the 1960s.

The words of the ex post facto clause address legislative acts, not judicial decrees. State legislatures are said to "pass laws," but common law court rulings even if they overrule a precedent, are not customarily characterized in identical terms, although they make new law every bit as much as a new statute. The United States Supreme Court thus recognized in Bouie vs. City of Columbia (1964) that the central vocation of the ex post facto clause would be frustrated if state courts were free to accomplish through whimsical or ill-motivated judicial decrees what was placed off-limits to state legislatures.

In that case born of "sit-ins" of segregated facilities in South Carolina during Massive Resistance the state Supreme Court retroactively enlarged a criminal trespass prohibition by an exotic interpretation to ensnare protesters who refused to depart premises at the request of a proprietor. Previously, only unwanted entries were criminal.

Writing for the majority, Justice William Brennan, a liberal icon, declared that "a state Supreme Court is barred by the Due Process Clause from achieving precisely the same result [prohibited by the Ex Post Facto Clause to state legislatures] by judicial construction."

The case of defendant Rogers fit Bouie like a glove. When he stabbed Mr. Bowdery, the common law of Tennessee made his conduct murder only if his victim died within a year and a day, a requirement that was unsatisfied. The state supreme court, however, retroactively cast aside the "year and a day rule" to make Rogers guilty of murder based on behavior that was not murder when committed. Justice O´Connor was obtusely unconvinced.

She maintained that the state supreme court overruling was neither unexpected nor indefensible. The year and a day rule had become for long years a curio of the law of murder, overtaken as much as the geocentric theory of the universe through legislative reforms and enlightened judicial decisions. But those observations elided the decisive issue: namely, whether Rogers could fairly be charged with anticipating a retroactive, as opposed to a prospective, judicial discard of an element of the crime of murder in Tennessee. No other state court apparently had endorsed retroactivity. And the Bouie precedent seemed squarely against the idea. In sum, even the oracles at Delphi would have been baffled by the state court´s singular ruling. Moreover, nothing in applying Bouie to Rogers would have arrested the evolution of common law in Tennessee through prospective criminal justice decrees.

Wilbur Rogers is neither a household name nor destined for fame. But the majesty of the law shines brightest in defense of little people. Can that compliment be paid to the Rogers decision?

Bruce Fein is general counsel for the Center for Law and Accountability, a public interest law group headquartered in Virginia.

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