Columns » John Brummett

Judges who kill

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Next time Ralph Nader says there’s no difference in the two parties, somebody ought to introduce him to Paul House. Unless it’s too late. The presidential race can be a life-and-death matter, and I’m not talking about Iraq. I’m talking about imposing the death penalty even when there’s a reasonable doubt about guilt, which would only seem to go against the very foundation of the vaunted American system of justice. Execution in defiance of evidence was recently favored by Republican-nominated judges on the 6th U.S. Circuit Court of Appeals at Cincinnati. It was opposed by Democratic-nominated appeals judges sitting in that circuit. Since the Republican nominees outnumbered the Democratic ones by 8-to-7, a Tennessee Death Row inmate — this Paul House — appears on his way to lethal injection. The appeals court vote to kill him was precisely that, 8-to-7. And it was precisely on party lines. House stands convicted of a murder accompanied by a rape — rape providing the compounding factor by which a jury gave him capital punishment in 1986. The evidence of rape, the supposed covering up of which was the motive of the murder, was semen. DNA evidence impossible then but undisputed now shows the semen to have been that of the victim’s hard-drinking husband, not House. Absent evidence of a rape, there is now the absence of a compounding factor permitting the death penalty. There might still be a case of simple murder, not capital murder. But new witnesses have come forward to say the victim’s husband had a history of drunken abuse of the victim. Two witnesses now say the husband told them he killed his wife when he was drunk. One says the husband asked for help with an alibi. House was seen coming out of the woman’s house cleaning his hands. He was a known drug user. The jury was told the semen matched his blood type. The eight-judge majority nominated by Republican presidents, four by the current one, ruled that the new evidence and allegations were insufficient to change the verdict or even compel a new trial. That the DNA was not House’s does not specifically contradict testimony that House lured the woman from her home, the prevailing Republican jurists said. The new witnesses are suspect in that they are only coming forward now, the Republican judges said. Six of the seven Democratic-nominated judges said the new evidence meant the state had lost its motive, its theory and any aggravating circumstance. These six said the new witnesses were credible. They said House should be freed forthwith. The seventh Democratic nominee, Judge Ronald Lee Gillman, advanced the seemingly most logical course, which was to grant House a new trial. But because Republican presidents had nominated one more appeals court judge than Democratic presidents, and because Republican judges apparently want to stand by law enforcement and oblige the political popularity of the death penalty, a man in Tennessee will die soon unless the U.S. Supreme Court saves him, which is unlikely, or multiple sclerosis gets him first. Eric M. Freedman, a law professor at Hofstra University, put the matter in perspective when he was interviewed by The New York Times. “In any rational legal universe, there is now at least reasonable doubt about the man’s guilt,” Freedman said. So, if you prefer imposing the death penalty in spite of reasonable doubt, there’s a voting option available to you Nov. 2. And there’s another option if you like the idea of not killing a man when there’s a reasonable doubt about his guilt. That sounds oversimplified, unless you look to the 6th U.S. District Court of Appeals in Cincinnati.

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