Ron Chris Foster v. State

The involvement of former Miss. Supreme Court justice Kay Cobb in the "Tea Party" movement has been raising some eyebrows. Jim Craig, in a comment over at Ipse Blogit, has something good to say:

I have to say that I have great admiration for Kay Cobb; I first met her when she was a State Senator and pushed back against Governor Fordice's attempt to take sentencing in capital cases away from juries.

In the Ron Chris Foster case, she impressively marshalled the evidence that Mr. Foster was mentally retarded in a four-justice dissent in a 4-4 opinion. At the time, Foster was scheduled to be executed. Justice Cobb's independence and judgment was one of the factors that preserved Mr. Foster's appeal (and life) until the US Supreme Court held in a different case that offenders who committed capital crimes before they were 18 could not be executed. If not for Justice Cobb and Governor Musgrove (who entered a temporary reprieve/stay at the same time as the Cobb dissent), Mississippi would have had the dubious distinction of being the last government in the WORLD that executed a juvenile offender.

I'm no fan of the T.E.A. Party movement, and I agree with Matt and NMC that the C of CC is reprehensible. But despite the error of attending the C of CC conference, Kay Cobb is, I think, a high quality and formidable representative of the conservative position in Mississippi.

I can't find a public copy of the Cobb dissent nor find it on Westlaw -- because rehearing was granted, the previous opinion was "disappeared," an unfortunate but common result.

The opinion on rehearing does however state this, which I believe was an important part of the dissent:

The State relies on an IQ test it states was performed at Whitfield in 1990, where Foster was allegedly shown to have an IQ of 80. This test result has been cited by this Court, by the United States District Court, by the United States Court of Appeals, and by Foster himself in pleadings before this Court. At this point the source of this IQ score is a mystery, as it cannot be found in Foster's appeal record.

It's a little spooky to realize that a man's life hung in the balance on the weight of an IQ score that turned out not to even be in the record.