Crayons to Chaos: gateways, blood spatters and pen de mort

So I've sat here for six hours trying to write my story for the Covering Courts and Trials class, and ended up writing 3000 words that I posted first on Book of Days. Now I'll get to take a break before I shape 1000 words that sound more lke an article than a ramble.

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Q. Do you have any recollection about anything that he said?
A. Oh, yeah, he said they had been into an argument and he slapped her and she fell and hit her
head and it killed her and he didn’t mean for it to happen.
Q. Was he intoxicated?
A. He was drinking real heavily, yeah.
Q. Was he emotional?
A. Very.
Q. All right. How very is very?
A. Well, he was crying and just all to pieces.
Q. All right. How long had he been there before he told you about this incident?
A. Maybe 10 or 15 minutes, not real long.
Q. Did he say what they were arguing about?
A. He had wanted to go to a dance or something or another and was wanting to go somewhere
else. That is what they got into an argument over.
Q. What did you do when you heard Little Hube say he hit his wife and she died?
A. I freaked out and run him off.
Q. You freaked out?
A. I freaked out and ran him off.
Q. Okay. After the party did you tell anybody about this?
A. Not that night. The next day I went to Union County and tried to talk to some law people
and —
Q. Would they listen to you?
A. Went to Union County to the Sheriff’s Department. I tried to speak to the Sheriff but he was
real busy. He sent me to a deputy. The deputy told me to go upstairs to the courtroom and
talk to this guy. I can’t remember his name. I never did really get to talk to anybody.
Q. Tried to tell them?
A. Yeah.
Q. Did you talk to your mother about it?
A. A little later on there wasn’t a whole lot said about it, but she was the one that took me to the courthouse.
Q. Your mother went with you to the courthouse that day?
A. She drove me. I didn’t have a vehicle.
Q. Did you know Carolyn Muncey?
A. Yes, sir.
Q. Are you aware of whether or not Little Hube had ever abused her or beat on her?
A. She was constantly with black eyes and busted mouth.

Testimony of Kathy Parker, Nashville resident, testifying to a federal district court in Tennessed on behalf of Paul House, who is on death row for Carolyn Muncey's murder.

Is this a Supreme Court preview, or an episode of CSI?

Well, it's House v. Bell, which turns out to be both.

Not that I've ever seen that show, actually, but I thought I'd be wrestling more with precedents than with blood spatters, missing or planted evidence, semen-stained jeans, or a theory that an entire rape-murder can be committed, in a rural area without a car, inside of 50 minutes. I didn't know that Paul Gregory House, who has been on death row since 1986, has multiple sclerosis - of the most advanced kind, which may kill him before anyone tries to strap him down for the lethal injection or gas chamber.

It's all about the DNA, of course.
It's all about the revolution in our thinking about the death penalty thanks to the careful work of attorneys, all around the country, who have re-opened investigations that were done sloppily, or ineffectively presented, the first time.

And it's all about politics. Paul Gregory House was 2/3 of the way to exoneration when 8 of 15 appeals court judges declared he was probably innocent and he deserved a new trial. But a year later, when they could have made it official, four of those 8 judges, appointed by Democrats, had been replaced by George Bush. Their replacements said no, he still hadn't established reasonable doubt - despite DNA evidence, despite eyewitnesses, despite affidavits that shot down, or at least seriously questioned, the forensic evidence offered by the prosecution.

And it's all about the word "no."

Specifically the "no" in the following paragraph from Sandra Day O'Connor:

a petitioner must show that, in light of the new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. The focus on actual innocence means that a district court is not bound by the admissibility rules that would govern at trial, but may consider the probative force of relevant evidence that was either wrongly excluded or unavailable at trial. The district court must make a probabilistic determination about what reasonable, properly instructed jurors would do, and it is presumed that a reasonable juror would consider fairly all of the evidence presented and would conscientiously obey the trial court's instructions requiring proof beyond a reasonable doubt.

Schlup v. Delo, the 1995 Supreme Court opinion quoted above, offered both hope and frustration to defendants with newly discovered evidence, as it instructs judges to imagine themselves that Platonic "reasonable, properly instructed juror." In its poetry, it's also proved a Rorschach blot, taken up by both sides. And to Judge Dan Boggs, a grizzled veteran of the Sixth Circuit, "no reasonable juror" means exactly that: not a single juror. Basically, the Sixth Circuit panel demanded that every single piece of evidence put out by the prosecution be directly refuted before it could order a new trial.

Is this all too arcane? Should I get back to the blood?

Schlup v. Delo, which, by the way, denied Lloyd Schlup's petition, established a new "gateway" for defendants in capital cases. It followed, and elaborated on, Herrera v. Collins, which allowed for the first time a "freestanding" appeal to the Court, based solely on overwhelming evidence of innocence.

"In a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim," said Justice White.

O'Connor said it more simply: "the execution of a legally and factually innocent person would be a constitutionally intolerable event." In other words, such an execution is, by definition, cruel and unusual punishment. But the Court then set the bar quite high for "legally and factually innocent."

In his dissent from Schlup, Justices Renquist and Kennedy warned that the decision's flexible "reasonable juror" standard "will inevitably create confusion in the lower courts."

Renquist couldn't, I think, have predicted the other force that would create such confusion: increasingly sophisticated analysis of forensic evidence.

Courts forced by technological advances to take up long-decided cases include state supreme courts in New Jersey, which earlier this year reversed a conviction for murder/armed robbery based on new studies that chemical analysis of lead bullets (like that used by the prosecution) is unreliable (State v. Behn, 2005), and California, after DNA analysis of a glove used in a robbery-murder, tagged one defendant and prompted testimony that exonerated another (Nickerson v. Roe, 2003).

Over half of the 121 death row exonerations since 1973 have happened in the last five years. Each exoneration has strengthened further efforts, magnified by the Innocence Project and the Death Penalty Information Center, with more funding and investigative tools investigating these cases.

The last ten years, then, can be read in part as the Supreme Court's effort to set some ground rules, in order to prevent both a tsunami of death-row appeals and those executions it finds "constitutionally intolerable."

This January, in the case of Paul Gregory House v. Warden Ricky Bell, the Court has the opportunity to try to set some ground rules determining what kind of evidence is needed to satisfy that "reasonable juror." They also can rule more narrowly, and only for the man asking: the case's first question is,

Did the majority below err in applying the Supreme Court's decision in Schlup v. Delo to hold that petitioner's compelling new evidence, though presenting at the very least a colorable claim of actual innocence, was as a matter of law insufficient to excuse his failure to present that evidence before the state courts - merely because he had failed to negate each and every item of circumstantial evidence that had been offered against him at the original trial?

Take a deep breath to review that. Then listen to the bigger, broader question the Court also accepted, leading to a rash of headlines like this:

What constitutes a "truly persuasive showing of actual innocence" pursuant to Herrera v. Collins sufficient to warrant freestanding habeas relief?

Listen to that gateway turning, in the Justices' mind, to a floodgate as the history of rotten jurisprudence - sleeping attorneys, watch-checking failure to cross-examine the forensics people, illiterate signed confessions and racist juries - is peeled open like some death-row Superdome. I don't know which Justice insisted it was OK to add the second question, but it's the one that could change the face of death row appeals (or not) very quickly.

Stephen Kissinger, who's been working on House's case for over ten years, is working hard toward an affirmative answer to the first question, on Schlup. He believes his client's case is strong enough to withstand Schlup's high bar. "After all, Schlup had two prison guards saying he did it," he said.

However, he says an answer on the second question would be a revolution of sorts.

"I would like them to acknowledge that Herrera is a real claim," he said.

Beore they get there, the Court will have to sort through not just competing lower courr decisions but spatters of blood, testimony from teenagers, competing forensic analyses -- and dispute about how muddy it was on Ridgecrest Road in Nashville, Tennessee on the night of July 13, 1985.

How else are they to analyze, and conclude, whether there's s "truly persuasive demonstration of `actual innocence?"

House was picked up on the side of a road in Tennessee on July 15, 1985, and charged with the murder of Carolyn Muncey, whose body had been found a mile or so from where House lived with his girlfriend. Herbert Muncey, the victim's husband, was never a suspect, even though his two sisters now claim that they approached the district attorney after House's arrest to say that Muncey and his wife had been fighting.

In short order, House was tried and convicted, in part based on a blood type that matched semen found on the victim's underwear and a state police officer's recollection that he saw what might have been blood on House's jeans; a prior sexual assault conviction helped push the crime into the death-penalty category.

But that was all before his case was taken by federal public defender Stephen Kissinger.

"I’ve always investigated both sides of a death case really hard," said Kissinger.

Legal defense in these trials, he says, rarely dug hard enough or took each opportunity to challenge the prosecution. When he took up House's case, trial counsel had already waived some important rights and left some "ridiculous" forensic evidence and suppositions unchallenged, he said.

In short order, Kissinger's team had tracked down Herbert Muncey's sister and nephew, who testified that Muncey, now dead, had confessed to killing his wife; a woman who said he had asked her to provide him with an alibi "by saying he was at a dance with her;" and another who had seen Carolyn Muncey with bruises on her face,

At that point, Kissinger said, "we decided we should do some DNA tests on that underwear." However, he claims, the underwear was mysteriously missing from the evidence room when they requested it. It took some time, he said, for them to conduct the tests that proved it was Muncey's semen. (Police reports the day of the murder also show that Muncey said he had had sex with her that day.)

Kissinger alleges similar shenanigans about the vials of Ms. Muncey's blood collected that day, which became important at the district court hearing. They even brought in the Tennesssee's assistant medical examiner to attest that the blood on House's jeans, vital to the prosecution, came only from the vials of the victim's blood in the evidence box - and thus could only have been planted.

"They brought in this blood spatter expert," says Kissinger, to rebut Dr. Blake, who gave a long and incomprehensible theory of how Carolyn Muncey's blood might have degraded on House's jeans in a manner identical to stuff that had been in a glass tube.

In any event, the district court still sided with the trial court; they dismissed the new eyewitnessed because they had waited so long to come forward, and engaged in this interesting bit of imagination when confronted with mud on House's jeans when there had been none anywhere near the crime scene:

We note that the fact that mud may not have been present at the crime scene, and may have been scarce in the surrounding area, cannot be taken as proof that there was no mud anywhere on the route between Ms. Turner’s trailer and the scene of the crime.

I know that the rules of evidence are different post-conviction - but I don't think it's always Backwards Day.

One last random thread, before I spin out to look at precedents again: At the first 6th Circuit hearing, two years ago, Gregory House's words slurred - badly.

"Forgive me," said Kissinger, but my first thoughts were: Oh my god, he's getting dope in jail, I can't believe this. The wardens thought he had Huntington's Chorea." After some tests, it turned out that he has - yes! - MS. By now, Kissinger says, "he's completely wheelchair bound."

I've gotten far too involved in the facts of the case; I need to look again at the whole habeas-corpus thread, and how courts try to both honor that basic right and protect against "abuse of habeas" - the filing of repeat appeals, knowing one will be denied.

All of the relevant precedents here - Schlup, Herrera, Jackson, Sawyer and Carrier - speak of the need to maintain "finality" in criminal convictions. If we don't believe that the process of arrest, conviction, trial and sentencing is administered fairly, if we don't believe in due process, our whole society will be damaged.

An interesting amicus brief, from a committee of former prosecutors, hammers at this point, and names prosecutors as full partners in searching for innocence.

The prosecutor’s role “transcends that of an adversary: [the prosecutor] ‘is the representative not of an ordinary party to a controversy, but of a sovereignty.’” United States v. Bagley, 473 U.S. 667, 675 n.6 (1985) (quoting Berger v. United States, 295 U.S. 78, 88 (1935). See also National District Attorneys Association, National Prosecution Standards 9 (2d ed. 1991) (“The primary responsibility of prosecution is to see that justice is accomplished.”); American Bar Association, Standards for Criminal Justice: Prosecution Function and Defense Function § 3-1.2(c) (3d ed. 1993) (“The duty of the prosecutor is to seek justice, not merely to convict.”); id. § 3- 1.2 cmt. (“it is fundamental that the prosecutor’s obligation is to protect the innocent as well as to convict the guilty”).

Then they zero in on the point of it all:

The American people and their Constitution hold the
death penalty to a higher standard of reliability than other
punishment. As the Court has recognized,
the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in
a specific case.

I'm not sure who wrote that opinion (in Woodson v. North Carolina, which stopped the latter state from automatically executing all murder defendants). It's about as understated a way of saying what the gut feels and why the Court keeps trying to construct a gateway that works.

The rest of the world is looking at us, of course, in abject horror. I still remember a French painter in Domremy, Catholic and cheerfully right-wing, shaking his head at me: the one thing he didn't understand about Bush, about the U.S. was "pen de mort." Now that we're no longer executing children and the retarded, maybe we'll at least open the door to people like Gregory, before M.S. renders him mute and quite, quite still.