As a government lawyer, John Roberts Jr. contributed to one of the Supreme Court's most cold-blooded death penalty decisions. As its chief justice, what would he do about it?
Assuming his confirmation, he will have the opportunity. A Tennessee death row appeal the court accepted for argument in the coming term poses the question of whether DNA evidence of a prisoner's innocence should entitle him to a new trial.
Most Americans who aren't lawyers would be shocked that the answer is even in doubt. But to the legal system, rules and deadlines are often more important than simple justice. In a split decision, the 6th U.S. Circuit Court of Appeals ruled against Paul Gregory House because his lawyers had not challenged certain circumstantial evidence when it was timely to do so - that is, during his trial for rape and murder.
The key evidence was a semen sample consistent with House's blood type, which the DNA testing now shows to have come from the victim's husband. Does that prove House innocent? Not necessarily, but a jury should decide.
One of the Supreme Court precedents the 6th Circuit cited was the 1993 case of Leonel Herrera, who was executed for the deaths of two Texas police officers. A decision written by the late Chief Justice William Rehnquist held that it was too late for Herrera to present evidence that his deceased brother was the killer. This was the case in which Justice Harry Blackmun penned his memorable dissent, "The execution of a person who can show that he is innocent comes perilously close to simple murder."
As deputy solicitor general in the first Bush administration, Roberts co-signed a brief urging the court to rule that Hererra's claim came too late. Sens. Richard Durbin and Patrick Leahy reminded him of it during Roberts' confirmation hearing. Although he continued to insist that the issue was about multiple appeals, not actual innocence, Roberts did not appear entirely comfortable with his defense. More important, he acknowledged that it was "quite different from a claim, for example, of the DNA evidence," which is exactly the issue in House's appeal.
DNA testing already has liberated 162 prisoners. But others who might be freed remain trapped in procedural rules that are inconsistent with the ends of justice.
Durbin and Leahy obviously got Roberts' attention. It remains to be seen whether they got to his heart.
