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WASHINGTON � In a pair of opinions written by Justice Anthony Kennedy, the U.S. Supreme Court on Monday kept alive the appeals of death row inmates in Florida and Tennessee, adding new fuel to the debate over the death penalty. In the Florida case, Hill v. McDonough, the court ruled unanimously that inmate Clarence Hill is entitled to challenge the state’s lethal injection method as a �1983 federal civil rights action, rather than being limited to the more restricted habeas corpus route. But the court, citing the interest of the state and crime victims in “timely enforcement of a sentence,” cautioned that its ruling should not be read to encourage automatic stays or long delays in executions. In the Tennessee decision, House v. Bell, unusual for its extensive discussion of the trial evidence, a more divided court said that DNA evidence offered by defendant Paul House years after his conviction entitled him to habeas review in federal court. Both rulings were hailed by death penalty critics, and both highlighted Kennedy’s pivotal role in the new Roberts Court. In House the vote was 5-3, with Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas in dissent. Justice Samuel Alito did not participate because the case was argued before he joined the court. Peter Neufeld, co-director of the Innocence Project, said that House “recognizes that scientific advances have transformed our criminal justice system and must be weighed heavily in determining whether innocent people have been wrongly convicted.” The ruling, the first dealing directly with DNA evidence as a factor in reopening a death penalty case, will have a broad impact, Neufeld said. The Hill decision, though not a ruling for or against lethal injections, may hasten the day when the Supreme Court will consider one of a growing number of claims that the combination of drugs used in lethal injections can cause excruciating pain, violating the Eighth Amendment bar against “cruel and unusual punishments.” In May, however, the court denied review in a Tennessee case that would have presented the issue directly. Lethal injections, required in 19 states and available in 37 of 38 death penalty states, came into vogue in the past decade as a more humane method than electrocution. But human rights groups have questioned that premise in recent years, and during oral arguments in the Hill case, Justice John Paul Stevens noted that veterinary groups have deemed the method as too cruel to use in euthanizing pets. In the procedure the inmate is injected with three drugs in sequence that first lead to rapid unconsciousness, then muscle paralysis of the lungs and diaphragm, and, finally, cardiac arrest. Critics say that if the initial anesthetic does not take hold quickly enough, the inmate can suffer extreme pain and a feeling of suffocation. Clarence Hill, convicted of murder in 1983, has challenged his death sentence ever since, with some success � it was vacated twice. But in 1995 the Florida Supreme Court reimposed the death penalty. He kept appealing, and when Florida adopted lethal injections in 2000, Hill filed requests seeking details on the chemicals and the procedure to be used. He finally sued under �1983, but state and federal courts ruled that it was the functional equivalent of a successive habeas petition, which is foreclosed under existing law. Kennedy’s ruling reversed the Eleventh Circuit U.S. Court of Appeals. Because it is a challenge to the specific method of execution, not an attack on the sentence itself, Kennedy said it could proceed under �1983. Noting that other lethal injection methods are possible, Kennedy wrote that “Hill’s action if successful would not necessarily prevent the state from executing him by lethal injection.” Some states have developed different procedures and sequences for administering the drugs. In House v. Bell, the defendant has also been claiming innocence and challenging his conviction for more than 20 years. At his trial, the prosecution used blood and semen evidence to connect House with the rape and murder of Carolyn Muncey. After failing in several post-conviction appeals, House won a hearing in federal court to determine if his case fell into an “actual innocence” exception that allows further appeals that ordinarily would be procedurally barred. Using modern DNA evidence and other testimony, House alleged that the victim’s husband committed the murder. The Sixth Circuit U.S. Court of Appeals returned the case to Tennessee courts for further review. The Tennessee Supreme Court declined, and on further review the Sixth Circuit upheld the denial of habeas relief. Kennedy’s majority opinion said that House’s case fits under the rule announced in the 1995 case Schlup v. Delo, which allows innocence claims to reopen appeals if, in light of new evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty.” After assessing the new evidence, Kennedy concluded that “this is not a case of conclusive exoneration.” But because the new evidence called into question the blood and semen testimony, the Schlup standard was met. But he said House’s case does not rise to the level of another precedent, Herrera v. Collins, which lays out procedures for handling “truly persuasive” innocence claims. Roberts’ dissent agreed with the majority on the Herrera issue but argued that despite the new evidence, “the case against House remains substantially unaltered from the case presented to the jury.” As a result, Roberts said, the Schlup standard is not met because “I do not find it probable that no reasonable juror would vote to convict him.” Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C.

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