532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001)
Wilbert K. Rogers stabbed James Bowdery with a butcher knife on May 6, 1994. One of the stab wounds penetrated Bowdery's heart. During surgery to repair the wound to his heart, Bowdery went into cardiac arrest but was resuscitated and survived the procedure. As a result, however, he had developed a condition known as cerebral hypoxia, which results from a loss of oxygen to the brain. Bowdery's higher brain functions had ceased, and he slipped into and remained in a coma until August 7, 1995, when he died from a kidney infection. Approximately 15 months had passed between the stabbing and Bowdery's death which, according to the undisputed testimony of the county medical examiner, was caused by cerebral hypoxia secondary to a stab wound to the heart.1
Rogers was convicted in Tennessee state court of second degree murder. The state's criminal homicide statute makes no mention of the year and a day rule. It defines criminal homicide simply as the unlawful killing of another person. The trial judge instructed the jury that it could convict Rogers of murder if it found beyond a reasonable doubt that the victim's death was a natural and probable consequence of the stabbing, even if it occurred more than a year later. The jury convicted Rogers of second degree murder.2
Rogers appealed his conviction to the Tennessee Court of Criminal Appeals. That court affirmed after holding that the state's 1989 Criminal Sentencing Reform Act had abolished all common law defenses in criminal actions. The Tennessee Supreme Court affirmed on different grounds. It observed that the year and a day rule had been part of the common law of the state despite the paucity of case law on the rule. The United States Supreme Court granted certiorari.3
Whether the Due Process Clause of the Fourteenth Amendment was violated by the Tennessee Supreme Court's retroactive application of its decision abolishing the common law year and a day rule in a murder prosecution?4
The Due Process Clause prohibits retroactive application of a judicial decision that is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue. This principle is rooted in fair warning. It applies when a court alters the elements of a crime.5
No. The Tennessee Supreme Court's abolition of the year and a day rule was not unexpected and indefensible by reference to the law expressed prior to Rogers's conduct.6 The rule was an outdated relic of the common law that had never served as a ground of decision in any reported Tennessee murder prosecution. It had been abolished in the vast majority of other jurisdictions.7 The criminal homicide statute made no mention of the rule.8 Advances in medical science had undermined the rule's original justification concerning proof of causation.9
The Tennessee court's decision removed an archaic limitation without criminalizing previously innocent conduct or increasing punishment. It applied the common law authority of the court to conform the law to reason and common sense in light of the 15-month period between the stabbing and the victim's death from complications caused by the wound.10
The Tennessee Supreme Court's retroactive application of its decision abolishing the year and a day rule did not violate the Due Process Clause of the Fourteenth Amendment.11
Related opinions on this issue
Joined by Justices Stevens, Thomas, And Breyer (as To Part Ii)
Justice Scalia dissented on the ground that the year and a day rule constituted a substantive element of murder under Tennessee common law that entirely precluded a murder prosecution when the victim died after the period.12 He argued that the Tennessee Supreme Court had acknowledged the rule's validity at the time of the stabbing yet changed the law to eliminate that element and applied the new rule retroactively to Rogers, producing a conviction for murder that was not murder when the offense was committed.13 This action, he contended, violated the principle of nulla poena sine lege and the fair warning requirement of Bouie because the Due Process Clause incorporates the Ex Post Facto Clause's prohibition on retroactive increases in criminal liability when achieved by judicial decree.14
He rejected the majority's limitation of Bouie to unexpected changes, asserting that all retroactive judicial creation of crimes is forbidden, and would have reversed the conviction.15
Justice Stevens joined Justice Scalia's dissent in full but added that the majority had undervalued the threat to liberty posed whenever the criminal law is changed retroactively.16 He noted that while the perception of common-law judges as lacking power to change the law had diminished over time, the fundamental concern with retroactive alterations in criminal liability remained paramount and required reversal here.
Justice Breyer agreed with the majority's basic approach that due process asks whether the judicial ruling was unexpected and indefensible by reference to prior law and that fair warning is the touchstone.17 He could not agree, however, with the application of that principle to these facts.18 He concluded that Rogers lacked fair warning that the Tennessee courts would abolish the year and a day rule or apply the change retroactively to upgrade the crime from attempted murder to murder, and therefore joined Part II of Justice Scalia's dissenting opinion.19