What will four more years of Bush-appointed judges do to the federal courts? Here's a preview, from a cultural historian and long-time prison-reform advocate: Ralph Nader and the Progressive Agenda by H. Bruce Franklin, Truthout.org 10/17/04.
To get some sense of what a packed right-wing federal judiciary can mean, consider just this one case. In 1985, Paul House was convicted of raping and murdering a neighbor. The only significant evidence against him was that the semen in the body of the victim, Carolyn Muncey, matched his blood type. House was sentenced to die. Subsequently, thanks to the development of DNA science, it was proven that the semen from the rape of Mrs. Muncey was that of her husband. In an appeal brought before the United States Court of Appeals for the Sixth Circuit in Cincinnati, six witnesses destroyed the rest of the prosecution case and brought forth persuasive evidence that Mr. Muncey was the murderer. Mr. Muncey, they testified, was an alcoholic who frequently beat his wife. Two witnesses said he had confessed to killing his wife while drunk. A third witness testified that Mr. Muncey had asked her to supply him with an alibi for the murder. Of the fifteen judges, seven had been appointed by Democrats. Six of those decided that the new evidence clearly established that Mr. House was innocent, and the seventh came out for a new trial. All eight judges appointed by Republicans upheld not only the conviction but also the death sentence. Four of these judges were appointed by George W. Bush. Mr. House is now scheduled to die.
You can read the decision and the dissents at Findlaw.com, Paul Gregory House v. Ricky Bell, US Court of Appeals 6th Circuit 03/10/04 File Name: 04a0345p.06 (*.pdf file). This document has a lot of detail about the case.
The six-judge dissent says in part:
This is that rare and extraordinary case where petitioner has provided "a truly persuasive demonstration of ‘actual innocence’" that should free the prisoner immediately. ... Through extremely persuasive and affirmative evidence that Mr. Muncey killed his wife, House has shown that it is highly probable that he is completely innocent of any wrongdoing whatever. There is no reasonable basis for disbelieving the six witnesses who now incriminate Mr. Muncey as the perpetrator of the crime. The most compelling part of this new testimony involves his confession to the murder in front of two witnesses who have no connection to House and no bias against Mr. Muncey. Furthermore, before his wife’s body was even located, he solicited a neighbor to fabricate an alibi on his behalf. ... In contrast, there is no evidence of a motive for House. All of the state’s physical evidence, both blood and semen, allegedly tying House to the murder, has been effectively rebutted. The new body of evidence as a whole so completely undermines the case against House and establishes a persuasive case against Muncey that, had it been presented at trial, no rational juror could have found evidence sufficient for conviction. The new evidence so completely turns the case around that the proof is no longer constitutionally sufficient to warrant a conviction or imposition of the death penalty. Thus House should be immediately released.
Justice Scalia has referred to the question before us of actual innocence as death penalty’s most embarrassing question," a question he hoped "with any luck we [the Supreme Court] shall avoid ever having to face" in a "convincing" case. Herrera v. Collins, 506 U.S. at 428. Justice O’Connor has referred to this "embarrassing question" as a serious current problem: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Speech to Women Lawyers in Minnesota, July 2, 2001.
This case and the few empirical studies that we have reinforce Justice O’Connor’s view that the system is allowing some innocent defendants to be executed.
The single-judge dissent calling for new trial says:
The proper disposition of this case, in my opinion, is to issue a conditional writ that would free House unless he is provided a new trial by the state of Tennessee. ... A new trial would allow the jury to assess House’s guilt or innocence free from the erroneous introduction of the semen evidence, with full knowledge of the controversy surrounding the blood evidence, and with the benefit of the testimony implicating Hubert Muncey. Under circumstances where we face the execution of a man who might well be innocent, I believe that our system of justice demands no less.
But by the Bush standard of justice, one that his appointees tend to apply, the guy will just be executed.