The Supreme Court seemed unsympathetic Tuesday toward mentally ill death row inmates whose lawyers want to put off their habeas corpus appeals until their clients’ mental health improves. 

The court heard a pair of cases raising the issue – Tibbals v. Carter from Ohio and Ryan v. Gonzales from Arizona. And apparently because the two cases were related, the court used a new condensed format, allotting 40 minutes to each case rather than the usual 60.

The cases ask the court to reconcile two goals: speeding up capital appeals, as mandated by the federal Antiterrorism and Effective Death Penalty Act, while also enforcing the defendant’s right to counsel. That right, according to an American Bar Association brief filed in both cases, requires “both the right to knowing, rational communication and decision-making by the capital habeas petitioners and in appropriate circumstances, the right to an appropriate stay of proceedings when they are not competent to participate.”

No member of the court appeared willing to declare an unlimited “right to competency” or to allow indefinite stays while a defendant, presumably through medication or other therapies, returns to mental competency. And some justices appeared suspicious that allowing any kind of stay would lead to lawyers – and judges – using incompetency as a spurious way of staving off the executioner.

At one point Justice Samuel Alito Jr. accused the lawyer representing the convicted murderer in the Ohio case of proposing “a mechanism that will permit stays in virtually every capital case.”

Scott Michelman of Public Citizen Litigation Group, representing Ohio inmate Sean Carter, replied that district court judges “have a wide amount of discretion” that would allow them not to put off proceedings if a defendant’s claim was flimsy or if the defendant’s competent assistance was not needed to pursue the appeal.

Alito shot back that in passing restrictions on habeas appeals, Congress knew that “a lot of district court judges and a lot of court of appeals judges don’t like the death penalty and will go to some length to prevent the imposition of that sentence.”

But justices also pressed the lawyers representing Ohio and Arizona for guidance on how long a stay would be appropriate without it turning into an indefinite postponement of the death sentence.

Ohio Solicitor General Alexandra Schimmer said, “Since we are playing on the field of equitable discretion, it’s going to be difficult to put forward a hard and fast rule.”

To which Chief Justice John Roberts Jr. replied, “Well, give me a loose and soft rule.”

Schimmer said one year would be an appropriate length, citing a brief filed in the case by the American Psychiatric Association which states that successfully bringing prisoners back to competency usually takes six to nine months.

Arizona Attorney General Thomas Horne embraced a similar rule, but some justices were still dissatisfied, wondering how often a stay could be renewed if the medication is not working, or if treatment is delayed.

“I don’t mean to be nit-picking, but why is it six to nine months?” asked Roberts. Horne replied, “We had to find something to suggest to the court,” and the brief by the psychiatric group fit the bill.

Justice Antonin Scalia called the brief a “non sequitur” and noted with sarcasm that “they are not lawyers, right? They are psychiatrists.”

Justice Stephen Breyer urged leaving it up to the discretion of trial judges, who can weigh all the necessary factors. “Why can’t we trust them to do their jobs?”

Tony Mauro can be contacted at