Doubt and DNA
To some legal observers, the U.S. Supreme Court’s June 12 decision, House v. Bell, 126 S. Ct. 2064, is an inconsequential case that breaks no new ground and has little, if any, precedential value.
To others, House is a hugely important case–not just for the defendant who won a new hearing but for any inmate with a meritorious but procedurally defaulted claim of innocence.
But one thing is for sure: This is the first case to come before the high court that turns on exculpatory DNA evidence not available at the time of the conviction.
The 5-3 decision gives a Tennessee death row inmate, Paul Gregory House, the right to a hearing in federal court on his contention that newly discovered DNA and other evidence allow him to assert his procedurally defaulted claim that he received ineffective assistance of counsel at trial.
With DNA testing now a routine part of criminal investigations, says Georgetown University law professor Paul Rothstein, there undoubtedly will be many more cases like it.
Adds professor Rory Little of the University of California’s Hastings College of the Law in San Francisco, “It means that people with truly powerful claims of actual innocence will have a better chance of getting a hearing, even when they’re late or have missed a deadline.” Little helped draft an amicus brief for the ABA on behalf of House.
Had the decision gone the other way, Little says, it would have dealt a body blow to DNA-based innocence claims by inmates who have exhausted their normal appeals. When the decision came down in House’s favor, Little says, all he could do was breathe a sigh of relief.
Applying The Exception
Inmates, as a general rule, are precluded from raising any legal issues in their federal appeals that they didn’t raise in their state appeals. But the Supreme Court has carved out an exception for inmates with a particularly strong claim of innocence to prevent what it says would be a “manifest injustice.”
The court in this case held that there was enough evidence against House to support an inference of guilt. But it also said that House had raised sufficient doubt about the evidence against him to warrant a new hearing before a federal judge on his claim of innocence.
In its decision, the court cited evidence that it said called into question the central forensic proof connecting House to the crime, including DNA test results not available at the time of House’s 1986 trial that showed semen found on the victim’s body came from the victim’s husband, not the defendant. It also said that House had brought forth “substantial evidence” besides the DNA pointing to the victim’s husband as the killer.
“Accordingly, and although the issue is close, we conclude that this is the rare case where–had the jury heard all of the conflicting testimony–it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt,” Justice Anthony M. Kennedy wrote for the majority. The standard he cited–for federal habeas review of an innocence claim that would otherwise be procedurally barred–was first established by the court in Schlup v. Delo, 513 U.S. 298 (1995).
While the standard the court set is subjective, Rothstein says, the decision makes it clear that it is not impossible to meet, as some lower courts have held. Rothstein likens the standard to “an abiding feeling in the gut” that a prisoner may be innocent.
The decision also keeps alive the hope that an innocent person cannot be executed, even if he or she had a fair trial, Rothstein says. The exception previously carved out by the court applies only to inmates who claim their constitutional rights were violated at trial. It doesn’t apply to inmates who may be innocent but who had a fair trial.
However, the three dissenting justices said the majority should have given more deference to the factual findings of the district court, which held after a 1999 hearing that House didn’t fall within the “actual innocence” exception for procedurally defaulted claims outlined in Schlup. The dissenters also said the evidence, taken as a whole, suggests that one juror, acting reasonably, would vote to convict House. “The majority essentially disregards the district court’s role in assessing the reliability of House’s new evidence,” Chief Justice John G. Roberts Jr. wrote in a dissent joined by Justices Clarence Thomas and Antonin Scalia. “By casting aside the district court’s factual determinations made after a comprehensive evidentiary hearing, the majority has done little more than reiterate the factual disputes presented below.”
Justice Samuel A. Alito Jr., who joined the court after the case was argued, did not participate in the decision.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a Sacramento, Calif. based victims’ rights organization, says he wasn’t expecting the court to break any new ground in House–and it didn’t.
Scheidegger says every Supreme Court decision has some impact. But he doubts that House will set an important precedent. “It’s hard to say what effect it might have, but I don’t expect it will be significant,” he says.
Some conservative bloggers have even questioned whether the decision should be construed as a victory for House since the court declined the defendant’s invitation to grant him habeas relief on a “freestanding” innocence claim under Herrera v. Collins, 506 U.S. 390 (1993). In Herrera, the court suggested that a death row inmate with a “truly persuasive” showing of innocence would be entitled to habeas relief even if he had no other legal claims to make and had exhausted his state court remedies.
On another level, House may be as telling for what it didn’t say as for what it did. Ohio State University law professor Douglas Berman says the court could have used the case to make broad pronouncements about the issues of innocence and the death penalty. But it chose instead to craft a narrowly worded, fact-bound decision that makes little new law.
That’s all the more surprising, Berman says, given that only two weeks later Justices David H. Souter and Scalia got into a heated debate over those same issues in another death penalty case in which innocence wasn’t even an issue. In Kansas v. Marsh, 126 S. Ct. 2516, the court upheld the constitutionality of a Kansas statute requiring a death sentence if a jury finds that the aggravating and mitigating circumstances are equal. “One could easily imagine the kind of debate that broke out in Marsh, which had nothing to do with the question of guilt or innocence, being waged in House, where it would seem to have been far more appropriate,” he says.
Professor Myrna Raeder of Southwestern University School of Law in Los Angeles, co-chair of the ABA Criminal Justice Section’s Innocence Committee to Ensure the Integrity of the Criminal Process, says she’s disappointed the decision didn’t go further than it did. Raeder says the court has set what seems to be an impossibly high standard for an inmate who claims he is innocent just to get an opportunity to prove that his constitutional rights were violated.
Indeed, House, who was convicted and sentenced to death in 1986 for the 1985 murder of a neighbor, would still appear to have an uphill fight on his hands. To win a new trial, he not only has to prove that his constitutional rights were violated–a difficult burden in and of itself–but that the outcome probably would have been different except for the violation.
Digging Deeper
But little says there may be more to the decision than first meets the eye.
Technically speaking, he says, House held only that the defendant is entitled to a hearing on his constitutional claims. As a practical matter, though, the opinion leaves little doubt about the court’s desired outcome. And the court has never been shy about setting straight the occasional judge who can’t divine or doesn’t follow its unspoken intentions.
In fact, Little says that he wouldn’t be surprised if the case is ultimately resolved in some sort of plea bargain agreement under which House would be sentenced to time served.
After all, he says, House has already spent 20 years on death row for a murder the evidence strongly suggests he didn’t commit, which is more time served than some convicted murderers whose guilt was never in doubt.
But W. Paul Phillips, the Tennessee district attorney general who prosecuted House, says he has no substantial doubts as to the defendant’s guilt. He also says he’s not convinced that House will be granted a new trial.
Until that happens, Phillips says, any discussion about a possible plea bargain would be premature.
