Evidence could aid death row prisoner
By ROB JOHNSON Tennessean Staff Writer
The U.S. 6th Circuit Court of Appeals, citing DNA evidence that raises the possibility that an innocent man might be on Tennessee's death row, has asked the state Supreme Court to review Paul Gregory House's case to determine whether there is a basis for giving him a new hearing.
The recently discovered DNA evidence proves that House did not rape Carolyn Muncey immediately before she was killed in 1985 in Union County, north of Knoxville, according to the court opinion. Other evidence has surfaced that might show that House did not rape or kill Muncey.
The federal appellate court has instructed the state Supreme Court to decide how to proceed under Tennessee law. The state attorney general's office, meanwhile, will ask the U.S. Supreme Court to step in and review the case. While House's attorney is pleased with the majority's recognition of evidence that might exonerate his client, he lamented yesterday that House remained in prison.
House's conviction arose from Muncey's bludgeoning death in a rural corner of Union County.
The woman's body was found by friends who were searching for her the day after she vanished from her home. Still clothed in her nightgown and house coat, the dead woman was beneath a pile of brush within 100 yards of her doorstep — and near the spot where two witnesses testified that they had seen House, wiping his hands with a dark cloth.
The woman was killed by a blow to the head, and investigators quickly zeroed in on House, who had a prior sexual assault conviction in Utah.
At trial, the state's strongly circumstantial case — the witnesses who saw him wiping his hands, the evidence that Muncey had been raped by someone with a blood type that matched House's, the victim's blood on House's jeans and bruises on his arms — added up to a guilty verdict with enough aggravating circumstances for the jury to send the defendant to death row.
Now, the DNA evidence from the semen found on her underclothes has proved that House was not a rapist; rather, it came from her husband. The victim's blood, it has since been shown, was not spattered on House's jeans during the homicide, but later in the crime lab.
Furthermore, two witnesses say the victim's husband, Hubert ''Little Hube'' Muncey, confessed to killing his wife accidentally after he had been out at the local community center, drinking and dancing. That testimony was never heard by the jury.
A three-judge panel in March upheld the death sentence. House asked for the full court to review that decision, and in yesterday's opinion the 11-member court referred the case to the Tennessee Supreme Court by a 6-5 decision.
The majority opinion, written by Senior Judge Gilbert S. Merritt of Nashville, holds that the state Supreme Court must determine what to do now:
Some questions the court may consider:
• Simple murder is not enough to warrant a death penalty; aggravating circumstances ratchet a murder conviction up to a capital case. So if the aggravating factors — such as rape or kidnapping — are proved false, does a defendant's eligibility for the death penalty evaporate under state law?
• Does the state Supreme Court's review process permit it ''to remedy any error in the weighing process by the jury in light of newly discovered evidence?''
• Does Tennessee law require a new trial when evidence — particularly DNA evidence that was not available in 1985 — ''creates a serious question or doubt that the defendant is guilty of first-degree murder?''
Writing for the minority, Judge Daniel Boggs criticized the majority's opinion as ''a fishing expedition, undertaken in the hope that the Tennessee Supreme Court will take us off the hook by reassuming control of the case, under the majority's gentle guidance, or in the hope that we will, at a minimum, inject a significant additional amount of delay.''
He wrote that Merritt's ''argument might convince some, or even most, reasonable jurors that Paul House is actually innocent or should not be convicted. It would not, however, be so compelling that it is more likely than not that no reasonable juror would convict and thus, under established law, it should not avail Mr. House.''
He cited a case known as Schlup vs. Delo as a guideline for how judges should consider evidence of actual innocence, after a jury has reached its verdict. He tendered a statistical argument about a pool of 100 jurors, each with a 10% likelihood of voting to convict, concluding that ''it is almost certain that one out of the 100 jurors would convict.''
The Schlup standard, Boggs wrote, ''means that a prisoner can meet it only if a judge can conscientiously assert that every reasonable juror is almost certain to acquit. This case does not meet that standard.''
When a federal court is reviewing a state court's determination and attempting to consider what a juror would do, Boggs wrote, ''we are inevitably making hypothetical judgments. That statement is as true of the majority and special dissenting opinions as it is of mine. But we must do that in order to be faithful to Schlup. Otherwise we are simply doing what some observers may think is regularly done in such cases — substituting our own judgment of what the evidence shows for the opinion of the jury, and all jurors.''
In a separate dissent, Judge Ronald Lee Gilman agreed with the majority that House presented a strong claim for relief, ''at least at the sentencing phase of the case,'' but that he did not think that referring the case to the state Supreme Court was the proper route.
Gilman wrote ''that this court can and should decide the case on the merits as it is currently before us.''
But he did not agree with Boggs about affirming the District Court's upholding of the conviction. ''I find particularly disturbing the notion that the defendant's entitlement to relief hinges on a hypothetical statistical analysis that attempts to find mathematical precision in an endeavor that in the end requires a judgment call based on a sound understanding of human nature.''
Meanwhile, House sits on death row, 17 years after Carolyn Muncey's body was found at the bottom of an embankment.
His Knoxville attorney, Stephen Kissinger, was heartened but not celebrating. ''It's clear that a majority of the judges on the 6th Circuit are extremely disturbed by the fact that an apparently innocent man hasn't been given an opportunity in the state courts of Tennessee to present his case and that they're giving the Tennessee courts a chance to do the right thing ... to enforce their own criminal law and to do that in a correct and fair manner.
''But I think there's convincing evidence of his total innocence and substantial evidence that another person who we were able to identify committed it. And the man's been sitting on death row for over a decade.''
Court officials were uncertain yesterday when the next step — be it at the U.S. Supreme Court or the state Supreme Court — would take place.