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Tuesday, June 13, 2006

Innocence on the Court

Yesterday, the Supreme Court handed down House v. Bell, allowing a Tennessee prisoner on death row to proceed with his federal habeas claim.  The basic facts are straightforward: Paul House was tried, convicted and sentenced to death for the murder of Carolyn Muncey in eastern Tennessee.  Part of the state's forensic evidence was that there was semen consistent with House's on Mrs. Muncey's nightgown and panties.  Several years later, DNA evidence has shown that the semen was Muncey's husband's, not House's.  There was also evidence of problems with the blood samples, and other evidence pointing to Mr. Muncey, not House, as the possible killer.  Does House get to proceed in habeas, arguing for a new trial?  (Brandon Garrett, who's done terrific work in scholarship and practice on innocence claims, and I wrote about this case for the National Law Journal back in January.  More details also available here.)

The reason the question is close is that having procedurally defaulted his constitutional claims in state court, House has had to get past the requirement that a failure to hear the claim would be a "miscarriage of justice" by showing that it is "more likely than not that no reasonable juror would have convicted him in the light of the new evidence" -- both standards from the Supreme Court's 1995 Schlup v. Delo opinion.  It's a fairly high barrier -- deliberately so in order to balance the "societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case." (Schlup)

Kennedy's opinion for the majority in House and Roberts' for the dissent differ in part on their views of the evidence, but the standard is critical: that "no reasonable juror" would have voted to convict in light of the new evidence.  But why should that be the standard? If one or two jurors vote to convict, that's still a pretty clear acquittal, but if the judges predict that outcome (I've written about the difficulty of making such predictions here), they should deny relief under this standard.  In other words, if judges think the acquittal in a new trial would not be unanimous, we shouldn't worry, and let the guy be executed. Huh?  Maybe the balance struck in Schlup made sense at the time, but after all the exonerations in recent years, driven by DNA evidence, maybe it's time to restrike that balance --  now that we know that unfortunately, such injustices are not the "extraordinary case."

Posted by Jason Solomon on June 13, 2006 at 12:14 AM | Permalink


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I agree that, if the language of Schlup is interpreted strictly, the standard is ridiculously high and I cannot imagine it to be what the Schlup court intended. At oral arguments there were some exchanges over the standard, and Scalia goes so far as to suggests there may a "big mistake" in the language. I think it is fair to say that, at the very least, the language is a bit Schluppy.

Posted by: Erratum | Jun 14, 2006 11:46:07 AM


You are high on snark but low on sense. Scalia isn't "pro-life," he is in favor of following rules. So yes, he'll follow a rule even if he doesn't like the result because he sees his job as following the law. Nutty, eh?

Posted by: C'mon | Jun 13, 2006 3:04:47 PM

As I recall from Fed Courts, there was some case where Scalia, in dissent, voted to permit either the execution or life imprisonment of someone who was actually innocent...just to preserve "comity" between the state and federal court systems. A real triumph for the pro-life justice(s).

Posted by: Anono | Jun 13, 2006 9:40:36 AM

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