When your standard is the very best, what's to heighten?

We were reminded today of that Miss. Supreme Court opinion in Bluewater Logistics, in which the Court renounced its "heightened standard of review" where the lower court adopted a party's proposed findings verbatim:

Yet our precedent provides little guidance as to how we are to comply with our duty to “heighten” our scrutiny – which could be read to require us to review a case more carefully or, perhaps, to apply a different, more stringent standard to our review of the facts.

But our duty already requires us carefully to scrutinize every case, so we reject the former. * * * Yet our duty requires us in every case to be as careful and as sensitive to error as we can be, and we cannot condone a standard that allows us to be less sensitive to error in one case than in another.

What reminded us of the case was today's 5th Circuit opinion explaining its stay of execution in the Robert Simon case. (Our compliments to defense counsel.)

Lastly, insofar as the Mississippi Supreme Court’s decision was based on its belief that Simon’s “medical records . . . reveal normal neurological findings at all times,” that belief is contradicted by the prison medical records themselves, which state that on January 7 Simon exhibited “[a]ltered neurological function” and “significant neurological changes.” A decision based on a clear-cut misapprehension of the evidence in the record is surely “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

And that was in a capital case.