House v. Bell Oral Arguments

I was able to get into the oral arguments in House v. Bell, a capital punishment case out of the Sixth Circuit involving a death-row inmate with at least a colorable claim of actual innocence. Despite new scientific evidence undercutting the prosecution's theory of House's motive, and evidence that the blood evidence presented at trial was badly flawed, and five witnesses willing to testify that the victim's husband has since confessed to the murder . . . House can't get a hearing on a number of constitutional claims because of a little doctrine we like to call procedural default. Ah, but actual innocence is one of the claims that opens a "gateway" around the default . . . without getting too far in the weeds, let me just say that the issue is how much of a showing of actual innocence does one have to make to get a chance at the possibility of relief?

My personal take on the case is that if House doesn't have enough to open the "gateway," then no one ever will. But a district judge and eight of fifteen judges on the Sixth Circuit en banc disagreed with that assessment.

Oral argument was more than a little strange. It was like an episode of "CSI: Supreme Court," with lots of talk about blood spattering, DNA analysis of semen, wounds, scratches caused by dragging a dead body, etc. My favorite exchange was between Justice Ginsburg and the attorney arguing for Tennessee, Ms. Smith, over whether the ground was dry on the day of the murder and, if so, where the mud on House's jeans came from. Although hearing Justice Scalia talk about "scratches on the thighs" as consistent with rape was also quite, er, odd.

I counted how many questions each justice asked the petitioner (House) and respondent (State of Tennessee). One can assume, for argument's sake, that justices ask more questions of the side they are more skeptical of, and that they vote the same way. In other words, if you ask more questions of the petitioner, House, then you vote to affirm. If you ask more questions of the State, then you vote to reverse. If that assumption holds, and that's a big "if," then the vote should be 5-3 to reverse, in House's favor. Here's my count of questions:

Chief Justice Roberts, affirm (5 questions to pet., 3 to resp.)
Justice Stevens, reverse (7 questions to resp., none to pet.)
Justice O'Connor, affirm (3 questions to pet., 1 to resp.), but her vote won't count once Judge Alito is confirmed
Justice Scalia, affirm (16 questions to pet., 5 to resp.)
Justice Kennedy, reverse (5 questions to resp., two to pet., and those two were asked at the same time)
Justice Souter, reverse (seven questions to resp., one to pet.)
Justice Thomas, affirm (although he asked no questions of either side)
Justice Ginsberg, reverse (eleven questions to resp., three to pet.)
Justice Breyer, reverse (eleven questions to resp., four to pet.)

I'm sure about everyone's vote here but Justice Kennedy's. At argument, I was sitting behind Barry Scheck. Yeah, Barry frackin' Scheck, of the O.J. Dream Team and Project Innocence. On the way out, I asked him what he thought. I was somewhat surprised that he was responsive to an inquiry from some random guy sitting in the courtroom. His companion/assistant said, "It's all up to Justice Kennedy." I agreed and pointed out that he asked more questions of the State, and she said something like "that's a good sign." (As this story demonstrates, Barry Scheck really didn't speak to me, in so many words. Although I did shake his hand.)

So it's on Justice Kennedy.

Btw, as the question count indicates, Justice Scalia appears very skeptical of House's claims of actual innocence.

BBtw, on the way to the courthouse, I walked past the Hart Senate Office Building, where the Alito confirmation hearing was going on. There was a demonstration going on--a pro-Alito demonstration. Lots of red signs reading "Confirm Alito" and lots of small children. Tweens and teenage girls holding a banner reading: "We [Heart] Alito." That, too, was a little strange. The effect, to be perfectly honest, was a combination of groupies out of Teen Scream and a "spontaneous demonstration" in support of Chairman Mao.