Rogers v. Tennessee
Encyclopedia
Rogers v. Tennessee, , was a U.S. Supreme Court
case holding that the Tennessee Supreme Court's
abolition of the common-law year and a day rule
could apply retroactively to crimes committed before the court abolished the rule under the Due Process Clause of the United States Constitution
. Accordingly, the defendant's conviction for murder was sustained on appeal despite the fact that the victim died 15 months after the defendant struck the ultimately fatal blow.
Bowdery slipped into a coma. Eventually Bowdery developed a kidney infection, from which he died on August 7, 1995, 15 months after the stabbing. The medical examiner ruled the cause of death as cerebral hypoxia "secondary to a stab wound to the heart."
Rogers was convicted of second-degree murder under Tennessee's homicide statute, which does not include the year and a day rule
. Rogers appealed to the Tennessee Court of Criminal Appeals
, arguing that the year-and-a-day rule was part of the common law of Tennessee, despite its absence from the Tennessee homicide statute. The appellate court disagreed, noting that the state's Criminal Sentencing Reform Act had abolished all common-law defenses in criminal cases, including the year-and-a-day rule.
Rogers appealed again to the Tennessee Supreme Court
. The court held that the common-law year-and-a-day rule survived in Tennessee, but was outmoded. It therefore abolished the rule. Rogers had also argued that abolishing the rule after he had committed his crime would violate the Ex Post Facto
Clause of Article I
of the U.S. Constitution. The Tennessee Supreme Court disagreed, reasoning that although judicial decisions can be ex post facto laws, retroactive abolition in this case would not offend due process principles because the year-and-a-day rule was so outmoded that a reasonable person would not expect it to exist under modern law. The U.S. Supreme Court agreed to hear the case at Rogers's request.
, , the Court had held that due process forbade applying a novel interpretation of South Carolina's criminal trespassing statute to a criminal defendant who had no prior warning that the statute might be interpreted in a manner adverse to the defendant.
Bouie and subsequent cases applying Bouie made clear that the Due Process Clause of the Fourteenth Amendment did not incorporate the Ex Post Facto guarantee against the states in any particular manner. The rationale of Bouie rested on "core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct." Although the Due Process and Ex Post Facto Clauses might protect against common interests, to elide the distinction between the two as set forth in Bouie would be to ignore the textual differences between the clauses as well as the contextual differences between legislative and judicial lawmaking. Put another way, imposing a strict prohibition against ex post facto lawmaking on common law courts would deprive such courts of the ability to interpret the law in a manner consistent with settled expectations of parties before it who live in the modern world.
Rogers should have anticipated that the year-and-a-day rule might no longer exist under modern circumstances. Thirteenth century medical science was not capable of determining the cause of death beyond a reasonable doubt after a significant amount of time had elapsed following the ultimately fatal blow. For this reason, the year-and-a-day rule served as a kind of limitation period on murder prosecutions. However, as medical science has advanced, forensic scientists have been able to determine the cause of a person's death later and later after the fatal event occurs. "For this reason, the year and a day rule has been legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue," as the Tennessee Supreme Court observed. This pervasive change in the law should have put Rogers on notice that, although the rule had not been formally abolished in Tennessee, it was clearly moribund in 1994 in American law generally and Tennessee law specifically. Accordingly, it was hardly unexpected and indefensible for the Tennessee Supreme Court, while considering an appeal from Rogers's own conviction, to first formally abolish the rule and then to apply that decision retroactively to his own case.
concluded that the Tennessee Supreme Court's retroactive application of its decision to remove the year-and-a-day rule from its jurisprudence rendered Rogers's conviction for murder invalid. Scalia began with a different premise than the majority—that the Tennessee Supreme Court had changed that state's law of murder when it abolished the year-and-a-day rule in Rogers's case. If the legislature had abolished the rule, the Ex Post Facto Clause would not allow that abolishment to apply to Rogers's case. Why should the fact that it was the state supreme court that abolished the rule make a difference? The process of lawmaking by common-law courts—applying legal principles to novel fact situations—is not interrupted by forbidding them from applying new legal principles to new factual situations, after all. Scalia thus believed that there was no reason not to apply the Ex Post Facto Clause to "unelected judges" just as it applied to the "elected representatives of all the people."
For these historical reasons, Scalia believed, the majority should not have circumvented the strictures of the Ex Post Facto Clause by analyzing what the Tennessee Supreme Court had done under the rubric of due process. "I find it impossible to believe, as the Court does, that this strong sentiment [against ex post facto lawmaking] attached only to retroactive laws passed by the legislature, and would not apply equally to a court's production of the same result through disregard of the traditional limits on judicial power."
Scalia also disagreed with the conclusion that Rogers had had fair warning that the year-and-a-day rule was so moribund as to have been effectively abolished. Other common-law crimes had outmoded elements, and certainly a common-law court could not say those elements no longer existed because the ancient rationale for them had changed—asportation, as an element of common-law larceny, or "breaking the close" as an element of burglary, for instance. (Of course, today this behavior would be subject to punishment under statutory definitions of crimes rather than common-law definitions.) Rogers might have known that the rule was outmoded, but he could not have known that the rule had ceased to exist until the court or the legislature told him so. And although the rule might have had dubious status in Tennessee law, the Tennessee Supreme Court had explained that it was the law, and the Court typically takes such statements at face value. In the absence of any fair warning, as he saw it, Scalia concluded that Rogers's conviction for murder was not valid.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case holding that the Tennessee Supreme Court's
Tennessee Supreme Court
The Tennessee Supreme Court is the state supreme court of the state of Tennessee. Cornelia Clark is the current Chief Justice.Unlike other states, in which the state attorney general is directly elected or appointed by the governor or state legislature, the Tennessee Supreme Court appoints the...
abolition of the common-law year and a day rule
Year and a day rule
The year and a day rule has been a common traditional length of time for establishing differences in legal status. The phrase "year and a day rule" is most commonly associated with the former common law standard that death could not be legally attributed to acts or omissions that occurred more...
could apply retroactively to crimes committed before the court abolished the rule under the Due Process Clause of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. Accordingly, the defendant's conviction for murder was sustained on appeal despite the fact that the victim died 15 months after the defendant struck the ultimately fatal blow.
Facts
Rogers stabbed James Bowdery with a butcher knife on May 6, 1994. One of the stab wounds penetrated Bowdery's heart, and during surgery to repair the wound, Bowdery went into cardiac arrest. Bowdery survived, but due to cerebral hypoxiaCerebral hypoxia
Cerebral hypoxia refers to a reduced supply of oxygen to the brain. Cerebral anoxia refers to a complete lack of oxygen to the brain. There are four separate categories of cerebral hypoxia; in order of severity they are; diffuse cerebral hypoxia , focal cerebral ischemia, cerebral infarction, and...
Bowdery slipped into a coma. Eventually Bowdery developed a kidney infection, from which he died on August 7, 1995, 15 months after the stabbing. The medical examiner ruled the cause of death as cerebral hypoxia "secondary to a stab wound to the heart."
Rogers was convicted of second-degree murder under Tennessee's homicide statute, which does not include the year and a day rule
Year and a day rule
The year and a day rule has been a common traditional length of time for establishing differences in legal status. The phrase "year and a day rule" is most commonly associated with the former common law standard that death could not be legally attributed to acts or omissions that occurred more...
. Rogers appealed to the Tennessee Court of Criminal Appeals
Tennessee Court of Criminal Appeals
The Court of Criminal Appeals is one of Tennessee's two intermediate appellate courts. It hears trial court appeals in felony and misdemeanor cases, as well as post-conviction petitions. Appeals in civil cases are heard by the Tennessee Court of Appeals....
, arguing that the year-and-a-day rule was part of the common law of Tennessee, despite its absence from the Tennessee homicide statute. The appellate court disagreed, noting that the state's Criminal Sentencing Reform Act had abolished all common-law defenses in criminal cases, including the year-and-a-day rule.
Rogers appealed again to the Tennessee Supreme Court
Tennessee Supreme Court
The Tennessee Supreme Court is the state supreme court of the state of Tennessee. Cornelia Clark is the current Chief Justice.Unlike other states, in which the state attorney general is directly elected or appointed by the governor or state legislature, the Tennessee Supreme Court appoints the...
. The court held that the common-law year-and-a-day rule survived in Tennessee, but was outmoded. It therefore abolished the rule. Rogers had also argued that abolishing the rule after he had committed his crime would violate the Ex Post Facto
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
Clause of Article I
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
of the U.S. Constitution. The Tennessee Supreme Court disagreed, reasoning that although judicial decisions can be ex post facto laws, retroactive abolition in this case would not offend due process principles because the year-and-a-day rule was so outmoded that a reasonable person would not expect it to exist under modern law. The U.S. Supreme Court agreed to hear the case at Rogers's request.
Majority opinion
The Court evaluated this case under the rubric of due process rather than the limitations on ex post facto lawmaking present in the Constitution. This is so because the Ex Post Facto Clause limits only legislative actions rather than judicial decisions. However, limitations on ex post facto judicial decisionmaking are inherent in the notions of due process. For instance, in Bouie v. City of ColumbiaBouie v. City of Columbia
Bouie v. City of Columbia, 378 U.S. 347 , was a case in which the Supreme Court of the United States held that due process prohibits retroactive application of any judicial construction of a criminal statute that is unexpected and indefensible by reference to the law which has been expressed prior...
, , the Court had held that due process forbade applying a novel interpretation of South Carolina's criminal trespassing statute to a criminal defendant who had no prior warning that the statute might be interpreted in a manner adverse to the defendant.
Bouie and subsequent cases applying Bouie made clear that the Due Process Clause of the Fourteenth Amendment did not incorporate the Ex Post Facto guarantee against the states in any particular manner. The rationale of Bouie rested on "core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct." Although the Due Process and Ex Post Facto Clauses might protect against common interests, to elide the distinction between the two as set forth in Bouie would be to ignore the textual differences between the clauses as well as the contextual differences between legislative and judicial lawmaking. Put another way, imposing a strict prohibition against ex post facto lawmaking on common law courts would deprive such courts of the ability to interpret the law in a manner consistent with settled expectations of parties before it who live in the modern world.
Common law courts at the time of the framing undoubtedly believed that they were finding rather than making law. But, however one characterizes their actions, the fact of the matter is that common law courts then, as now, were deciding cases, and in doing so were fashioning and refining the law as it then existed in light of reason and experience. Due process clearly did not prohibit this process of judicial evolution at the time of the framing, and it does not do so today.
Rogers should have anticipated that the year-and-a-day rule might no longer exist under modern circumstances. Thirteenth century medical science was not capable of determining the cause of death beyond a reasonable doubt after a significant amount of time had elapsed following the ultimately fatal blow. For this reason, the year-and-a-day rule served as a kind of limitation period on murder prosecutions. However, as medical science has advanced, forensic scientists have been able to determine the cause of a person's death later and later after the fatal event occurs. "For this reason, the year and a day rule has been legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue," as the Tennessee Supreme Court observed. This pervasive change in the law should have put Rogers on notice that, although the rule had not been formally abolished in Tennessee, it was clearly moribund in 1994 in American law generally and Tennessee law specifically. Accordingly, it was hardly unexpected and indefensible for the Tennessee Supreme Court, while considering an appeal from Rogers's own conviction, to first formally abolish the rule and then to apply that decision retroactively to his own case.
Dissenting opinion
Applying his originalist understanding of the Ex Post Facto Clause, Justice ScaliaAntonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
concluded that the Tennessee Supreme Court's retroactive application of its decision to remove the year-and-a-day rule from its jurisprudence rendered Rogers's conviction for murder invalid. Scalia began with a different premise than the majority—that the Tennessee Supreme Court had changed that state's law of murder when it abolished the year-and-a-day rule in Rogers's case. If the legislature had abolished the rule, the Ex Post Facto Clause would not allow that abolishment to apply to Rogers's case. Why should the fact that it was the state supreme court that abolished the rule make a difference? The process of lawmaking by common-law courts—applying legal principles to novel fact situations—is not interrupted by forbidding them from applying new legal principles to new factual situations, after all. Scalia thus believed that there was no reason not to apply the Ex Post Facto Clause to "unelected judges" just as it applied to the "elected representatives of all the people."
What occurred in the present case, then, is precisely what Blackstone said—and the Framers believed—would not suffice [as a rationale of decision by a common-law court]. The Tennessee Supreme Court made no pretense that the year-and-a-day rule was 'bad' from the outset; rather, it asserted the need for the rule, as a means of assuring causality of the death, had disappeared with time. Blackstone—and the Framers who were formed by Blackstone—would clearly have regarded that change in law as a matter for the legislature, beyond the power of the court.... That explains why the Constitution restricted only the legislature from enacting ex post facto laws. Under accepted norms of judicial process [that prevailed in the time of the Framers], an ex post facto law... was simply not an option for the courts.
For these historical reasons, Scalia believed, the majority should not have circumvented the strictures of the Ex Post Facto Clause by analyzing what the Tennessee Supreme Court had done under the rubric of due process. "I find it impossible to believe, as the Court does, that this strong sentiment [against ex post facto lawmaking] attached only to retroactive laws passed by the legislature, and would not apply equally to a court's production of the same result through disregard of the traditional limits on judicial power."
Scalia also disagreed with the conclusion that Rogers had had fair warning that the year-and-a-day rule was so moribund as to have been effectively abolished. Other common-law crimes had outmoded elements, and certainly a common-law court could not say those elements no longer existed because the ancient rationale for them had changed—asportation, as an element of common-law larceny, or "breaking the close" as an element of burglary, for instance. (Of course, today this behavior would be subject to punishment under statutory definitions of crimes rather than common-law definitions.) Rogers might have known that the rule was outmoded, but he could not have known that the rule had ceased to exist until the court or the legislature told him so. And although the rule might have had dubious status in Tennessee law, the Tennessee Supreme Court had explained that it was the law, and the Court typically takes such statements at face value. In the absence of any fair warning, as he saw it, Scalia concluded that Rogers's conviction for murder was not valid.