WASHINGTON, DC — It’s not the only house in D.C., but maybe the toughest.
Memphis public defender Mark Ward held his cool under intense pressure Wednesday to present a controversial case before the U.S. Supreme Court. Weathering both sharply critical and insightful questions from the justices, Ward argued that the Tennessee Supreme Court cannot retroactively punish an already convicted person, even if state laws change after the crime.
That’s the legal issue at hand. The details of the case are a bit more messy.
Six years ago, Wilbert Rogers was invited to play cards with one of his buddyÕs wives. His friend was in jail at the time and when Rogers arrived at the woman’s house, he met another man, Ira Bowdery, allegedly the woman’s boyfriend. The three played cards into the night — drinking and smoking dope. Rogers lost about $20 to Bowdery, who eventually retired to the bedroom with the woman.
The following few hours were very sobering. Rogers admitted to bursting in the bedroom door with a butcher knife and attacking Bowdery. One of those swings sliced clean into Bowdery’s heart. While the woman hysterically chased Rogers as he fled the home, Bowdery — bloody and barely coherent — stumbled through the door of a neighbor’s trailer. They took Bowdery to the hospital where he clung to life for over a year-and-a-half before dying in 1995. Rogers was convicted of first degree murder, and is serving a 33-year prison sentence.
Ward argued before the Supreme Court that RogersÕ defense should have been in accordance with the laws on the books at the time he attacked Bowdery. That law in question stipulates that a defendant cannot be tried for first-degree murder if the victim does not die within a year and a day of an assault. It was was written in 1907 and abolished by the state legislature in 1997.
“The law was reasonable a hundred years ago when we didn’t have the medical advances to keep someone alive for that long,” said Ward in September while preparing for his allotted 30 minutes before the high court “A person should be punished under the law existing at the time of his crime. If retroactive application of laws is allowable, then where does that stop?”
In early 1997, Rogers appealed to the Sixth Circuit Court to consider the year-and-a-day law and reduce his sentence. The court rejected the appeal. Rogers then appealed to the state Supreme Court who agreed with the Sixth Circuit. But, most significantly, the Tennessee Supreme Court also ruled that the year-and-a-day law was archaic and no longer applicable in murder trials.
The question before the U.S. Supreme Court is whether the Tennessee Supreme Court can retroactively apply its 1999 ruling abolishing a law for a defendant whose criminal act occurred five years earlier.
Wednesday afternoon Ward had to argue not just the legality of the issue, but why the court should be lenient on a confessed killer, whose only defense is that his victim lived longer than expected.
“There’s an aura of unreality about your case,” Justice Sandra Day O’Conner said. “It seems to me that your client is just taking advantage of this law. I mean, I have to ask, ‘What purpose does it serve to make concessions for a murderer?’ It’s reasonable to assume that he hoped Mr. Bowdery would die.”
Infliction of a mortal wound, the justices could rule, is enough to constitute punishable first-degree homicide.
Tennessee Solicitor General Michael Moore used that rationale, but made it only a minor component of his argument. Moore told the U.S. Supreme Court that the year-and-a-day law was irrelevant, or a “loophole principle,” when reasonably assuming that the first thing on Rogers’ mind was to kill.
Ward referenced Bouie v. City of Columbia which barred retroactive application of any laws pertaining to criminal statutes.
Ward also pointed out that the majority of America’s courts have not applied their rulings retroactively. That fact contradicted Moore’s brief.
He writes that the Tennessee appeals court rejection of the year-and-a-day rule was not “unexpected,” but that common law courts across the country abandoning it should have indicated that Tennessee would have followed suit.
Perhaps the most disturbing aspect of Rogers v. Tennessee is that state prosecutors are already exhuming bodies of individuals who died more than a year after they were attacked. These people were victims of crimes before the 1999 Rogers ruling abolishing the year-and-a-day law.
And it wouldn’t be a day in Washington without talk of politics. The Tennessee Association of Criminal Defense Lawyers has issued a statement in support of Rogers. Because state appellate judges are pressured to maintain a tough-on-crime image with voters, they might be persuaded to apply retroactive laws that seem harsher than the laws in existence when a crime was committed.
A decision of the case is expected before the end of the Supreme Court’s winter session.
(You can write Ashley Fantz at ashley@memphisflyer.com)
