Chemical analysis presented at the trial suggested that Mr. House's semen was found on Ms. Muncey's clothing, while DNA testing later showed it to be her husband's. ... The defense theory was that the husband, Hubert Muncey, was the killer. The new legal team that represented Mr. House in his habeas corpus petition produced witnesses who testified that they had heard Mr. Muncey make a drunken confession, but the federal district court discounted the evidence in rejecting the petition in 1997.
And who would be against a retrial in such a case? The state of Tennessee, for one. And Justice Antonin Scalia.
Addressing Mr. House's lawyer on Wednesday, Justice Scalia said he agreed that the case now looks "much closer" than it must have appeared to the jury in 1986. But that was not the issue, he continued. "Once the case has been tried, we have a much different task," Justice Scalia said, namely to determine "whether any reasonable jury could have found guilt."
Only if the answer was no could a federal court proceed to hear a petition for a writ of habeas corpus and consider whether constitutional errors that had not previously been identified had occurred at the trial. The Supreme Court's leading precedent on this question, a case from 1995 called Schlup v. Delo, refers to this hurdle as a "gateway" through which an inmate must pass. It is, Justice Scalia said, "a very heavy burden" for the defense to meet.
Mr. House's lawyer, Stephen M. Kissinger, replied, "It is a high burden, and we don't shrink from it."
Mr. Kissinger, an assistant federal defender from Knoxville, Tenn., challenged Justice Scalia's description of the gateway. "It comes down to the 'could' and 'would' distinction," he said. "We don't deny that there is evidence that 'could' support conviction, but that's not the test. What 'would' a reasonable juror conclude? Proof of innocence does not have to be absolute."
So the difference between a man's life and death hinges on the difference between "could" and "would." It sounds like something out of a very black comedy satirizing the courts.
I don't object to the death penalty on principle; however, I think that the possibility of executing an innocent person poses an extremely serious challenge to the capital punishment. If we are going to maintain this institution, we should at least take every step humanly possible to ensure that we are certain beyond any reasonable doubt of the guilt of the condemned. Here, the new evidence clearly could have (and, in all probability, would have) made a major difference in the trial -- even if it's possible that the jurors would have still come to the same conclusion.
This shouldn't be a conservative-vs.-liberal issue. If conservatives are still the champions of limited government, surely they should be concerned with limiting the government's ability to take a man's life without every conceivable safeguard.
According to the Times, it is likely that at least five justices will back House and he will get a new trial. It should have been 9-0.
Update: My friend Eugene Volokh writes:
But wouldn't the same argument operate as to life imprisonment? Perhaps it's not quite as wrong to keep someone locked up for life (or even 30 years) if there's strong evidence that he's innocent as to execute him then, but it still seems pretty wrong.
Also, I take it that Justice Scalia's response in either case is that "wrong" doesn't mean "unconstitutional." States are free to provide post-conviction review of newly discovered claims of actual innocence; some do this through special procedures, and others through clemecy decisions by the governor. But there's no constitutional requirement of this extra procedure, once a fair trial has taken place.
I agree on the first point, of course; it would be a monstrous injustice to continue to hold someone in prison, without a new trial, despite this kind of potentially exculpatory evidence. One big difference, though, is that at least if the person remains in prison, the fight for his release can continue. Execution is irreversible.
As for the second point: perhaps I'm being non-lawyerly here, but to me, the notion that the courts should allow an execution of a clearly innocent person to proceed as long as there were no procedural violations at the trial shocks the conscience as well as common sense. (It's the other extreme from the idea that the perpetrator of a heinous crime should go free on a procedural technicality.) I realize that appellate judges are not supposed to be triers of fact. But the Fifth Amendment to the Constitution says that no one can "be deprived of life, liberty, or property, without due process of law"; and it seems to me that denying a new trial after the discovery of significant new evidence is a flagrant violation of "due process."
Scalia's proposed standard seems to be that if there is any reasonable possibility that the jury would have found the defendant guilty even with the new evidence, the conviction should stand. I would not go so far as to say that a reversal is warranted if there is the slightest chance that the new evidence would have resulted in an acquittal. But a "preponderance of the evidence" standard seems reasonable in such a situation, and in this case -- if the Times report is accurate -- it seems more likely than not that the new DNA evidence would have altered the outcome of the trial. (The claim that House's semen was found on the victim's clothing provided not only physical evidence against him but also the motive, since the prosecution argued that House killed Muncey in the course of a sexual assault.)
Finally, what troubles me about Scalia's position (again, as outlined in the article) is that, aside from the issue of constitutionality, he does not seem particularly bothered by the wrongness of executing House. It was the same thing that troubled me about Scalia's dissent in Lawrence: unlike Clarence Thomas, he did not simply believe that anti-sodomy laws were constitutionally permissible, but clearly didn't see anything particularly wrong with such laws.
I am reminded of Scalia's 2002 speech in which he observed that opposition to the death penalty is correlated with the growth of secularism:
I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” ... For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!
Does Scalia, perhaps, believe that for the believing Christian, it is "no big deal" to send an innocent person to his death (as long as it's not done "intentionally"), because God will fix it all by rewarding the sufferer in the next life? If so, that's a rather scary interpretation of the role of religion in public life.