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June 13, 2006

Some insider perspective on House

Professor Rory Little, whose helped drafted the amicus brief filed by the American Bar Association on the defendant's behalf in House v. Bell, shared with me some of his personal (and initial) reflections on the Supreme Court's House ruling.  With his posting permission, here are highlights:

House is an extremely important decision, in the larger context of the nationwide march toward fully appreciating "actual innocence" claims, and for habeas law in particular....  House importantly makes it clear that DNA claims can get through the Schlup v. Delo "gateway" for "procedurally defaulted" habeas claims.

Of course, Justice Kennedy's decision is not a clear bell-ringer for DNA alone, but rather the sort of fact-intensive incremental case he and Justice O'Connor (whose spirit is felt here, by extensive references in Justice Kennedy's majority, if not her presence) are known for....  Still, it appears to end the extremely stringent (practically impossible) interpretations of Schlup that some lower courts have used....

The result here is also a bit like avoiding a car crash: if it had gone the other way, then DNA-based actual innocence claims around the U.S. would have been dealt a body blow.  And thank goodness Justice Kennedy avoided the "trap" of limiting the decision to just capital cases: "Actual innocence" claims, particularly those involving DNA evidence, should be treated equally, regardless of the penalty....

Finally, it is a shame that the majority felt it necessary to opine that the alternative "free-standing" innocence standard of Hererra v. Collins is "higher" than the Schlup gateway standard.  As the ABA Amicus explained, that such a difference was intended is actually not at all clear from a careful parsing of the precedents leading to Hererra and Schlup.  Nor was this necessary to the decision....

Thus why the Court felt it necessary to opine seems unclear at best.  It is not likely that this was the "price" necessary to get a majority for House; instead, it seems to be Justice Kennedy's own price for staying with the majority.  But without him, the case goes 4-4, gets reargued with Justice Alito participating and likely goes the other way.... 

I imagine habeas scholars and lower courts will have a fun and laborious time picking apart the niceties between the majority and dissenting opinions.  But on the global scale, this was a good, and absolutely necessary, decision for the "actual innocence" movements across the country.  Three cheers for the "Stevens Court"!

June 13, 2006 at 01:56 AM | Permalink


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One wrinkle in House that I have not seen touched upon is the "newness" of the evidence that Schlup requires. There is a split in the circuits over whether the evidence need merely be "newly presented" -- i.e., not presented at trial -- or "newly available" -- i.e., not available at trial or discoverable through due diligence.

Although the SCOTUS did not address this issue, much of the evidence it relied on appears to have been available to House at trial, but just not presented. Although this is speculation, perhaps the reason the court was willing to consider this evidence is because House was raising a claim of ineffective assistance of trial counsel?

Posted by: Kevin Smith | Jun 14, 2006 4:19:13 PM

I'm about to head into my 3L year, and am clerking this summer at an organization that works on death penalty habeas corpus cases. One of our clients is claiming actual innocence, and I'm trying to use House v. Bell in a couple of different ways, but I have a big question. While the DNA facet of House is obviously important, it seems like no one's really touching on the fact that the SC has now said in House that two of the strictest AEDPA provisions regarding habeas petitions--sections 2244(b)(2)(B)(ii) and 2254(e)(2)--do not apply to first petition actual innocence claims. This seems like a pretty important development--am I wrong on that? I am new to the field, and not very well versed in habeas/death penalty jurisprudence, so I could very well be missing something. Any thoughts?

Posted by: Morgen Daniels | Jul 19, 2006 1:58:03 PM

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