It was a gritty argument with an unusually intense focus on the evidence that a Tennessee jury considered in convicting Paul G. House of the murder of a neighbor, Carolyn Muncey. Justices Antonin Scalia and Stephen G. Breyer were particularly steeped in the details and were deeply engaged on opposite sides of the case, debating it back and forth almost to the exclusion of the lawyers standing before them.
Mr. House has always maintained his innocence, and in 2004 came within one vote of persuading a federal appeals court to reopen his case. The debate on the appeals court was over whether recently developed scientific evidence has cast doubt on the basis of his conviction sufficient to overcome the very high bar that the Supreme Court has set for federal courts to hear new claims that were not presented in the initial round of appeals.
The vote against Mr. House in the United States Court of Appeals for the Sixth Circuit was 8 to 7; all eight judges in the majority were appointed to the Cincinnati-based appeals court by Republican presidents, and all seven dissenters were named by Democrats. Six of the dissenters concluded that Mr. House had proven his innocence, while the seventh said that he was at least entitled to a new trial.
Addressing Mr. House's lawyer today, 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 pointed out, "a very heavy burden" for the defense to meet.
"It is a high burden and we don't shrink from it," Mr. House's lawyer, Stephen M. Kissinger, replied. He said the court's focus should now be on "the effect of the entirety of the evidence on a reasonable juror" rather than on dissecting each disputed piece of evidence.
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."
Underlying this argument was the question of whether the courts should adjust their rules to take account of the recent string of exonerations based on DNA evidence. Briefs filed by the Innocence Project, a legal clinic in New York, and by the American Bar Association point out that the Supreme Court decided Schlup v. Delo and other cases limiting inmates' appeal rights before DNA testing had revealed flaws in a disturbing proportion of criminal convictions. Those revelations call for new flexibility, the briefs argue.
In this case, House v. Bell, No. 04-8990, the new DNA evidence alone did not produce a clear exoneration. Rather, it substantially undermined the prosecution's theory of the case, which was that sex was the motivation for the crime and that Mr. House had killed the victim in the course of raping her. 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 state maintains that this new evidence does not disprove that Mr. House was guilty of the murder.
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 heard Mr. Muncey make a drunken confession, but the federal district court discounted this evidence in rejecting his petition in 1997.
Mr. Kissinger, Mr. House's lawyer, said that if the case passed through the gateway, he would argue that Mr. House was deprived of the effective assistance of counsel at his trial and that the state withheld favorable evidence that it was constitutionally obliged to produce.
Representing Tennessee at today's argument, Jennifer Smith, an associate deputy state attorney general, said that all of Mr. House's new evidence "fails to raise sufficient doubt" about the original verdict to get past the gateway into federal court on these or any other claims.
Now it was Justice Breyer's turn. He challenged the state's lawyer on a long list of evidentiary issues, leading Justice Scalia to interject at one point: "We could call on these witnesses ourselves and hear them all over again."
"My goodness, I don't know who committed this crime," Justice Breyer said.
"Justice Breyer has not heard these witnesses," Justice Scalia said, only nominally addressing Ms. Smith. "The district court did."
Along with Justice Breyer, Justice David H. Souter also expressed strong doubts about the state's case. Justice Anthony M. Kennedy said that "at a minimum," he had questions about the death sentence if not the conviction. Justices Ruth Bader Ginsburg and John Paul Stevens said little, but if they follow Justice Breyer's lead, as is likely, there would be five votes to reopen the case even assuming that Justice Sandra Day O'Connor, who was uncharacteristically quiet, is no longer on the court by the time a decision is issued.
Her vote proved essential in a decision the court issued in another death penalty case today, the first 5-to-4 decision since John G. Roberts Jr. became chief justice. In Brown v. Sanders, No. 04-980, the court reinstated the death sentence of a California inmate whose habeas corpus petition had been granted by the federal appeals court in San Francisco.
The appeals court had overturned the sentence because two of the four factors the jury cited in making the defendant, Ronald L. Sanders, eligible for the death penalty were later found by the California Supreme Court to be invalid. Writing for the majority today, Justice Scalia said there was no constitutional error in the sentence because the jury was able to give proper consideration to the same facts and circumstances through the remaining, valid factors.
Chief Justice Roberts and Justices O'Connor, Kennedy, and Clarence Thomas joined the majority opinion. Justices Stevens, Breyer, Souter and Ginsburg dissented.