House v. Bell – Oral Argument – January 11, 2006

Media for House v. Bell

Audio Transcription for Opinion Announcement – June 12, 2006 in House v. Bell

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John G. Roberts, Jr.:

We’ll hear argument next in House v. Bell.

Mr. Kissinger.

Stephen M. Kissinger:

Mr. Chief Justice, may it please the Court–

The jurors which–

Sandra Day O’Connor:

Why don’t you raise the level of the podium a little so we can hear you?

Stephen M. Kissinger:

–Is that better, Your Honor?

Sandra Day O’Connor:

Not much.

Stephen M. Kissinger:

One more sound check.

Does that–

John G. Roberts, Jr.:

Thank you.

Stephen M. Kissinger:

–Thank you.

The jurors who convicted Mr. House of first degree murder heard that semen stains on the victim’s clothing matched Mr. House.

They didn’t hear the DNA evidence which showed that not to be the case.

The jurors heard–

Sandra Day O’Connor:

Was that because there was no such analysis at the time?

Stephen M. Kissinger:

–That’s correct, Justice O’Connor.

Sandra Day O’Connor:

How many years ago was this trial?

Stephen M. Kissinger:

The trial, Your Honor, was approximately 20 years ago.

The jurors who convicted Mr. House heard that bloodstains on Mr. House’s blue jeans matched the blood belonging to the victim.

They didn’t hear the assistant chief medical examiner for the State of Tennessee testify that the source of those bloodstains was a sample taken during Ms. Muncey’s autopsy, nor did they hear–

Antonin Scalia:

The district court heard that, though, didn’t it?

Stephen M. Kissinger:

–That’s correct, Justice Scalia.

Antonin Scalia:

And didn’t believe it.

Right?

And did not believe it.

Found as a matter of fact that the blood was… was not a result of the spill.

Stephen M. Kissinger:

Justice Scalia, the court made a conclusion that the blood which had spilt from the tube had spilt after… after the blood had been tested.

It did not, however, make a factual finding.

It made a conclusion of law regarding that, Your Honor.

Antonin Scalia:

That… is that a conclusion of law?

Stephen M. Kissinger:

It is, Your Honor.

If the Court were to look at the district court order, the district court order was divided into two distinct parts.

The first part–

Antonin Scalia:

I don’t care what part it put it in.

The district court did not believe that the blood on the trousers was a consequence of the spill and that… and that, therefore, blood was identified on the inside of his trousers that was the blood of the victim.

That’s what the district court believed, having heard the testimony.

Stephen M. Kissinger:

–Your Honor, what the district… what the district court concluded as a matter of law was that it… that notwithstanding Dr. Blake’s testimony regarding the source of the blood found on Mr. House’s jeans, that that did not eliminate the… eliminate the testimony of Agent Scott who said that he saw blood on the jeans when he first… excuse me.

Let me rephrase that because it’s actually a critical matter.

He saw what he thought appeared to be bloodstains on the jeans when he first picked them up.

What the district court did in that instance was exactly the error that Mr. House has brought to the attention of this Court, which is in the face of evidence of innocence, the district court, simply because it found some contrary evidence in the record, found that Mr. House had failed to make his showing.

Antonin Scalia:

On that point… on that one point, do you contend that the district court was clearly erroneous?

Stephen M. Kissinger:

Your Honor–

Antonin Scalia:

On that one point of the blood, of whether, indeed, his blood was on… or the victim’s blood was on the inside of his trousers?

On that one point, do you claim that the district court was clearly erroneous?

Stephen M. Kissinger:

–Justice Scalia, we actually make two claims regarding that.

First, that that was a conclusion of law entitled to… entitled to de novo review.

Second, that–

Antonin Scalia:

What’s your… what’s your second point?

Because I–

Stephen M. Kissinger:

–Second, Justice Scalia, if indeed it was a finding of fact, yes, that finding of fact was clearly erroneous.

Antonin Scalia:

–On the basis solely of the testimony of… of this expert.

Stephen M. Kissinger:

Your Honor, on the basis of the entirety of the record, which is what this Court instructed the district court to examine when it conducts the Schlup inquiry.

Antonin Scalia:

Including the contrary testimony that said if it had been the result of a spill, it would not have been splattered all over, as it was here.

Some of it wouldn’t have been on the inside of the trousers.

Some of it wouldn’t have been mixed with mud.

Despite all of that, you… you can say that the district court’s finding, which I consider a finding of fact, was clearly erroneous.

Stephen M. Kissinger:

Your Honor, including not only that testimony, but the testimony of the same expert who made the statements which the Court just cited, who said that she was unable… that she was excluding merely the direct spillage, the pouring of blood onto the jeans, and conceded in her testimony that the transfer stains which she observed, the type of stains which she observed could, in fact, have been… that she had no opinion as to the cause of those, only that it was the result of one object wiping against another object.

Also, in light of the testimony regarding–

Antonin Scalia:

Excuse me.

I… I agree that all of this stuff would… would have made a better case for the defendant here.

Antonin Scalia:

But once the case has been tried and both sides have put on all the evidence they have, we have a… a much different test, and… and that is whether any reasonable juror could have found him guilty.

That’s a very heavy burden, whether any reasonable jury could have found guilt.

I agree it would have been a much closer case, but… but the burden you… you have before us here is to establish that no reasonable jury could possibly have found him guilty.

Stephen M. Kissinger:

–Justice Scalia–

Antonin Scalia:

And on… just on the blood thing alone, I… I find that a hard burden to bear.

Stephen M. Kissinger:

–Justice Scalia, there… there are two things which come into the… into the Court’s analysis.

First is the Court is correct.

The burden is quite high, and it’s… it’s high for a reason.

It’s justifiably high.

We don’t shrink from that burden, Your Honor.

What we say is that along with that burden, the Court also requires that the entirety of the evidence be reviewed.

If the entirety of the evidence is reviewed and the effect of the entirety of the evidence on a properly instructed, reasonable juror… that’s the nature of the… the determination… what effect will that have?

When we look at the facts in this case, when we look at the blood evidence in this case, yes, we don’t deny that there is evidence which could support conviction.

However, that is not the test in Schlup.

Schlup specifically rejected that inquiry.

Stephen G. Breyer:

What did it rest on?

What… what is the district court’s conclusion?

The court concludes that the spillage occurred after the FBI crime lab received and tested the evidence.

What does that rest on?

Stephen M. Kissinger:

Your Honor, quite frankly, we can’t determine that… that statement rests on anything.

The undisputed evidence in the record consists of a photograph of the blood samples at the time they were received by the defense expert.

The box was opened.

A photograph was taken.

The photograph shows clearly that one entire tube of blood is missing and the second tube of blood has leaked within the packaging.

But the record also contains the testimony of the TBI agent who transported the blood from the FBI to the defense expert who said he observed no blood that leaked other than the… other than what was inside the container.

It also contains the testimony of the FBI agent who tested the blood at the FBI who said two things.

One, I used no… no more than one quarter of a tube of blood and that no blood spilt while the tube was in the possession of the FBI.

Antonin Scalia:

It also contained the testimony of an expert who said that if the tube spilled in that way, it would not have created the kind of spatterings that… that were incriminating in this case.

Even if there was some spill, it would not have produced the kind of spattering.

So, you know, I call that a draw.

Stephen M. Kissinger:

Your Honor, two… two things to… two things to point out there.

First is that that eliminates only one possible hypothesis and that is the hypothesis that blood was directly spilt onto… onto the… onto the jeans.

I think the example that the expert gave was these are not stains, for example, the pouring of a… like coffee… pouring coffee onto the lap of your jeans or something like that.

These are simply transfers, one bloody object wiped against another.

So while she gave a hypothesis of guilt… and again, Your Honor, it comes to the could and would distinction.

If it… that could be considered evidence of guilt, what would a… but, however, that’s not the inquiry.

The inquiry is what would a reasonable juror who heard that on one side, that it didn’t spill directly, but on the other side, heard the evidence that we began… that I began to discuss with Justice Breyer, which is the evidence of the TBI agent, the photographic evidence, the evidence of the FBI agent, the evidence that the styrofoam box was opened during transit to the FBI and that objects were removed from it during transit.

Anthony M. Kennedy:

I have two questions on the blood, and there’s a lot you want to cover here, so I won’t take too much of your time.

One, is it significant for your case that this was a very small sample?

Two, was the evidence about the enzymatic degradation… was that available?

Was the science about that fully available to the defense at the time of trial?

I had those two questions.

Stephen M. Kissinger:

Justice Kennedy, in terms of the… the size of… of the bloodstains, it was significant to the extent that it bears upon the probative value of the testimony of Charles Scott when he says… when he said he saw what he thought might be stains.

As a simple matter of fact, this… the jeans were stained with a number of substances, not just blood, and a number of witnesses, including the trial prosecutor himself, described the bloodstains as actually so small that they were difficult to detect by the human eye.

The second part of your question, Justice Kennedy, yes.

That evidence was available.

And our position is that it… that goes actually to the substance of our constitutional ineffective assistance of counsel claim.

Trial counsel had in his possession… or his expert certainly had in his possession the photograph that showed an entire tube of blood missing.

Therefore, he had evidence that there was something wrong with the blood.

Trial counsel was actually concerned about this blood.

He filed a pretrial motion to suppress this blood evidence.

Here’s trial counsel with evidence that blood is missing.

He knows it’s a critical issue in the case and he failed to go out and hire someone like the assistant chief medical examiner for the State of Tennessee who came into Federal court and testified as to the… that the source of this blood was, in fact, that empty tube.

Antonin Scalia:

That… that would be an important point if, in fact, it conclusively established that the blood was not the blood of the victim, but I don’t think it does conclusively establish that, and if it doesn’t, the… the less than perfect performance of counsel is… is no basis for setting aside the conviction.

Stephen M. Kissinger:

Your Honor, two matters on that.

Again, the proof of innocence does not have to be absolute.

This Court stated in Schlup that the fact that there is still some evidence of guilt or that there still exists even substantial evidence of guilt does not prevent a defendant from passing through the Schlup gateway.

The second matter and one which I think is important is that as a matter of Tennessee law, a circumstantial evidence case requires not only that the prosecution prove its case beyond a reasonable doubt, but that it eliminate all reasonable hypotheses of innocence.

So even if a jury could conclude that the blood came during… that the blood got on the jeans during the course of the crime, it would also have to be able… it would also have to be probable that the same jury would also conclude that it was an impossibility for Mr. Blake… Dr. Blake’s testimony to be correct.

So, in fact, it’s Dr. Blake’s testimony which has to be impossible to… to accept in order for a jury to find… a reasonable juror to find–

Ruth Bader Ginsburg:

Justice Scalia said blood of the victim.

You don’t contest that this was the blood of the victim.

The question is at what point did it get transferred to the jeans.

Stephen M. Kissinger:

–That’s correct, Justice Ginsburg.

Ruth Bader Ginsburg:

There’s no question about it being someone else’s blood.

Stephen M. Kissinger:

That’s correct, Justice Ginsburg.

The question has been, from the beginning of this case, when the blood came to get on Mr. House’s jeans.

Antonin Scalia:

Right.

And… and the point of controversy is whether a spill of… of the… of the blood in… in the course of transport could have produced this… this kind of… of spattering, including a spattering on the inside of… of the trousers near the button.

It… it seems to me unlikely, and… and I am unable to say that no reasonable jury… juror could not think it unlikely.

Stephen M. Kissinger:

Justice Scalia, I… I would disagree with… with the Court’s analysis there.

I… I think what… what the issue here is more whether, given the testimony of Dr. Blake, given the corroborating evidence that supports Dr. Blake’s testimony, would a reasonable juror have doubts or would any reasonable juror have a… retain a reasonable… excuse me–

Antonin Scalia:

It’s much more than that.

Stephen M. Kissinger:

–Let me rephrase that, Justice Scalia.

The question is, given the Tennessee jury instruction–

Stephen G. Breyer:

Any reasonable juror would have had to have a reasonable doubt.

Stephen M. Kissinger:

–Yes, thank you, Justice Breyer.

Stephen G. Breyer:

All right.

And you’re saying yes, any reasonable juror would have had to have a reasonable doubt irrespective of what the trial judge found.

Stephen M. Kissinger:

That’s correct, Justice Breyer.

John G. Roberts, Jr.:

So the… so the… we would have to be finding in this case, if we ruled in your favor, that we think the trial judge is unreasonable.

Stephen M. Kissinger:

Your Honor, that’s actually not correct either.

Schlup specifically says that the function of the district judge in a Schlup hearing is not to make an independent judgment on the evidence in front of him, but to make a probabilistic determination of the effect of the evidence on a reasonable juror.

Antonin Scalia:

Oh, but surely he’s supposed to make factual determinations.

We… I… I don’t want to make factual determinations on all these questions.

That’s… that’s not our system of law.

Those factual determinations are made by the trial judge.

And here, I agree with you that we don’t have to accept his judgment as to what a reasonable juror would have done, but I do think that we have to accept his factual findings as accurate unless they’re clearly erroneous.

And here, he made the factual finding that that blood was there before the transport.

And I… I think I’m bound by that unless you can show that it is clearly erroneous, which I don’t think you can.

Stephen M. Kissinger:

Your Honor, first, we… we believe we have… have shown that it’s clearly erroneous.

Second, even viewing the blood evidence separately, even saying, well, Mr. House has put up some evidence of… some evidence of innocence regarding this blood evidence, but not enough to really sway me regarding that, that evidence itself has to be viewed in light of the entire record.

And in light of the entire record, that blood evidence, standing alone in its even somewhat compromised state, no reasonable juror would be able to come to the conclusion that Mr. House was guilty because the remaining evidence of his innocence is also very substantial.

Sandra Day O’Connor:

Are you going to mention any of the other, or are we going to just deal with the blood today?

Stephen M. Kissinger:

Justice O’Connor, we… we would like to move on to… to some of the other evidence because it… it is substantial.

And we’ve set… we’ve set out a lot of that evidence beginning at page 6 of our reply brief.

Ruth Bader Ginsburg:

Will you also cover, because your time is short, if you get through the gateway on your actual innocence contention, what are your constitutional claims that lie behind it?

Because I don’t think much was said about in the briefs.

What is it that you would… you would say if you got through the gate?

Stephen M. Kissinger:

Justice Ginsburg, as… as I mentioned earlier, we believe that we have numerous instances of ineffective assistance of counsel.

First, counsel’s failure to… upon knowing of the importance of the blood evidence, which he clearly did because he raised… raised the issue himself, upon knowing of the photograph showing the missing blood, he failed to go forward and basically do what we did in Federal court, which was hire an expert to look at the results of the FBI testing and to determine whether there was a viable defense… a viable defense strategy available there, which he did not.

Also, if we look at the record in this case, we have a situation where trial counsel also pointed toward Hubert Muncey, Jr. as the actual perpetrator of this crime.

He actually called the sister of the victim to say that his sister was afraid of Mr. Muncey and that she had plans to leave him.

When we look at what was available to trial counsel there, we see five witnesses, many of whom were friends of Mr. Muncey, who presented evidence that showed that on the night of Ms. Muncey’s murder, Mr. Muncey and Ms. Muncey had a fight at the C&C Recreation Center, that Ms. Muncey went home, that Mr. Muncey followed her there, that he confessed that when he returned home, he was angry and drunk, that they began to argue again, that he struck her in the head, that she fell, that he checked her lifeless body and found she was dead, and that he hid her body in the bushes.

Antonin Scalia:

But… but the… the injuries on the body are simply not consonant with… with that manner of her… of her death.

A police officer testified not only to a head injury, but to blood coming out of the nose and ears, scratches and bruises on her throat and legs, scratches on her face.

That simply is not consonant with one whack on the head.

Stephen M. Kissinger:

Justice Scalia, there… there are two issues there.

In fact, the… the pathologist’s testimony and… and the law enforcement officer’s testimony is consistent to the extent that the injuries which Mr. Muncey described inflicting were, in fact, inflicted upon the victim.

There were those injuries.

The point… the fact that there were additional injuries to the victim… to the victim assumes that somehow Mr. Muncey’s independent, short confession, because, remember, when he started to confess… after he makes this confession, he’s rushed out of the home and told that they don’t want to hear anything.

This isn’t a situation of like a law enforcement… a confession made to law enforcement where once obtaining evidence of guilt, law enforcement pursues and tries to get as many of the details out of it.

I don’t believe that it would be… it’s significant or it would be significant to any reasonable juror that Mr. Muncey did not describe every single injury that he inflicted on Ms. Muncey that night.

Stephen G. Breyer:

You’ve mentioned… in response to Justice Ginsburg, you didn’t mention… and perhaps it was inadvertent.

If not, I want to know why not.

I thought if you get through the gate, what you’re going to say is the State should have given us evidence that they had that showed that Mr. Muncey had sexual relations with his wife the morning of the killing, and therefore, the semen that they found didn’t necessarily belong to your client, but rather belonged to him.

As it turned out, it didn’t.

Stephen M. Kissinger:

That’s correct, Justice Breyer.

Stephen G. Breyer:

So you’re going to make that Brady claim.

Stephen M. Kissinger:

We… we are going to also make the Brady claim.

Stephen M. Kissinger:

In addition, Your Honor, if indeed that evidence was available to trial counsel, who did talk to Mr. Muncey, who was able to interview Mr. Muncey, and failed to ask Mr. Muncey whether he had had sexual relationships with his wife, even though trial counsel attempted ineffectively at trial to… to show that… that that semen belonged to Mr. Muncey.

So it’s one of those situations, Justice Breyer, where there is either Brady for the State’s failure to turn it over, or if it was available, it’s another instance of ineffective assistance of counsel.

John G. Roberts, Jr.:

Counsel, could I step… step back a little bit to get… to get back to the standard of review?

Because I think it’s an unusual one.

You started out by talking about what the first jury knew and didn’t know, but we are in no sense reviewing that jury determination.

Correct?

Stephen M. Kissinger:

That is correct, Justice Roberts.

John G. Roberts, Jr.:

We are supposed to look at all of the evidence, the new evidence and the old evidence, and determine simply whether or not it would be unreasonable for any juror to vote to convict on the basis of all of that evidence.

Is that right?

Stephen M. Kissinger:

Your Honor, what Schlup says is that we are to step back and see whether it is more likely than not that no… that any reasonable juror would vote to convict.

Stephen G. Breyer:

Any reasonable juror would have to have a reasonable doubt.

Stephen M. Kissinger:

Would have… would have… that’s correct, Justice Breyer.

John G. Roberts, Jr.:

So, in other words, no reasonable juror… no… no juror could reasonably vote to convict.

In other words, if we look at this evidence and think that… and again, we’re not reviewing the prior jury’s evidence.

If we look at this and say, maybe a jury would come out 10 to 2 in favor of acquittal, if we think that would be reasonable, then you lose.

Right?

Stephen M. Kissinger:

Chief Justice Roberts, I–

John G. Roberts, Jr.:

Under my hypothetical there are two reasonable jurors who vote to convict.

Stephen M. Kissinger:

–Chief Justice Roberts, the danger in that hypothetical is that we are approaching an area where the definition of the reasonable juror becomes something subjective.

The definition of a reasonable juror is not a subjective inquiry.

In fact, it’s a… it’s an objective inquiry.

So to that extent, I would have to disagree with… with your analysis or your… or your hypothetical, which is that maybe there might be two jurors out there who would listen to this evidence and vote to convict Mr. House.

I don’t think that’s a correct statement–

Antonin Scalia:

Well, Schlup shouldn’t… shouldn’t have expressed it that way then.

Schlup must have… must have made a big mistake when it said no reasonable juror could.

It should have expressed it differently and said a reasonable juror would not… would not have found, but they didn’t say that.

It said no reasonable juror.

Stephen M. Kissinger:

–Your Honor, I believe the Court in… I believe the Court in Schlup took the word reasonable to encompass the point which I have just made.

David H. Souter:

Well, didn’t… you… you have accepted Justice Scalia’s formulation, but my understanding is that Schlup did not say no reasonable juror could.

Schlup said no reasonable juror would have.

David H. Souter:

Isn’t that correct?

Stephen M. Kissinger:

And that’s correct, Justice Souter.

David H. Souter:

But I mean, it’s would, not could.

Stephen M. Kissinger:

It… it is would.

David H. Souter:

Could would imply a sufficiency of evidence possibility of analyzing it, but the would language excludes a sufficiency of evidence.

The… the would formulation says, in effect, what would the reasonable juror actually have done.

Is that your understanding?

I mean, is that your point?

Stephen M. Kissinger:

That is, Justice Souter.

Antonin Scalia:

Or more precisely, what would all reasonable jurors have done.

Stephen M. Kissinger:

What would any reasonable juror, Justice Scalia.

Antonin Scalia:

All reasonable jurors.

Stephen M. Kissinger:

I believe the language is any.

Well, if there are no more questions, I’d like to reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, Mr. Kissinger.

Ms. Smith, we’ll hear now from you.

Jennifer L. Smith:

Mr. Chief Justice, and may it please the Court–

The evidence presented in the district court fails to raise sufficient doubt about Mr. House’s guilt to justify review of his procedurally defaulted claims because reasonable jurors would not ignore the fact that Mr. House’s jeans were stained with the blood of Carolyn Muncey.

That is a fact that has not been undermined by any of the evidence presented in the Federal habeas proceeding.

The enzymatic degradation theory of Dr. Blake was so thoroughly discredited in the Federal evidentiary hearing that it is highly unlikely that any reasonable juror, viewing all the evidence, would be convinced by it, let alone that everyone would vote to acquit in light of it.

In fact, the petitioner’s evidence of innocence was disputed in nearly every respect and sorely–

Stephen G. Breyer:

How was… how was that?

I thought you’d go on to say how that… how was it?

I… I read that Dr. Blake said this.

He said, look, I… there… there are tiny little specks of blood on the jeans and we test them.

They were tested.

And they show that a certain enzyme deteriorated to degree X, and that’s true of the test tube blood as well.

Both deteriorated to degree X.

But if you take fresh blood and splatter it, there will be no deterioration.

So conclusion, the blood on the jeans came from the test tube.

Stephen G. Breyer:

Now, you say that was discredited, but I didn’t read anywhere anything that discredited it.

What was the discrediting of that?

Jennifer L. Smith:

–That was specifically discredited by the… by the testimony of Agent Bigbee.

Stephen G. Breyer:

Who said?

Jennifer L. Smith:

Dr. Blake’s specific opinion was that his interpretation of the enzyme marker study, specifically the GLO1 enzyme on the jeans and on the vial–

Stephen G. Breyer:

Right.

Jennifer L. Smith:

–showed inc… inc–

Stephen G. Breyer:

Yes.

Jennifer L. Smith:

–which he took to mean incomplete penetrance.

Stephen G. Breyer:

Yes.

Jennifer L. Smith:

Agent Bigbee specifically disputed not only the literal interpretation of that, in that it doesn’t mean incomplete penetrance.

In fact, Agent Bigbee did not know what that even meant in the area of serology, but he… he disagreed with the meaning that Dr. Blake ascribed to that… to that definition… to that notation.

Stephen G. Breyer:

Which meant what?

Jennifer L. Smith:

Which Dr. Blake concluded that–

Stephen G. Breyer:

Was incomplete, and what did the FBI man say it was?

Jennifer L. Smith:

–Agent Bigbee testified… or Dr. Blake testified that the inc meant that the enzyme was not present, that it had dropped out.

Stephen G. Breyer:

He… he says it meant incomplete.

And what do you… what did… what did Dr. Bigbee say it–

Jennifer L. Smith:

Dr. Blake said it was not present.

It had dropped out.

Agent–

Stephen G. Breyer:

–Now… I… Dr. Blake, you just said, said that the word inc meant incomplete.

Jennifer L. Smith:

–That’s correct.

Stephen G. Breyer:

And you say Dr. Bigbee discredited that by saying, no, it didn’t mean that.

Antonin Scalia:

It’s Agent Bigbee.

I’m getting confused.

Stephen G. Breyer:

It meant something else.

What is the something else?

Jennifer L. Smith:

Agent Bigbee testified that inc means–

Stephen G. Breyer:

Means.

Jennifer L. Smith:

–inclusive–

Stephen G. Breyer:

Fine.

Now, all right–

Jennifer L. Smith:

–which means that the enzyme is present–

Stephen G. Breyer:

–Fine, okay.

Jennifer L. Smith:

–but that he could not subtype it.

Stephen G. Breyer:

They don’t know how much.

Now, I have on page 119, which they cite, of the transcript Mr. Pruden is talking to Mr…. Dr. Blake.

Would your opinion change, doctor, if the, quote, inc notation meant inconclusive rather than incomplete penetration?

Answer, same difference.

Question, so your opinion would not change?

Answer, that is correct.

Jennifer L. Smith:

But the… the dispute goes beyond the literal interpretation of the inc.

It goes to the meaning ascribed to it.

And Agent Bigbee disagreed that Dr. Blake… with Dr. Blake’s conclusion that the inc indicated that the enzyme had dropped out of the sample.

He said it was present.

It could not be typed.

Agent Bigbee also disagreed with Dr. Blake’s overarching theory that there was equal deterioration in the vials… in the blood in the vials and the blood on the pants.

In fact, Agent Bigbee went through step by step–

Stephen G. Breyer:

But it would have been the easiest thing in the world for you if, in fact, you think that this is not true that enzyme GL706BX, contrary to what Dr. Blake said, had not deteriorated in the blood spot, do a test.

Find out if it’s deteriorated or not.

Can’t… can’t that be done?

I mean, Dr. Blake in this part is reading his own report.

His own report says the enzyme deteriorated in the spots on the jeans, and I see nothing here that says to the contrary.

But if that weren’t true, the blood is right there, and if it weren’t true that it had deteriorated, I would have expected testimony, at the least, saying no, Dr. Blake, you are wrong.

Jennifer L. Smith:

–Your Honor, that–

Stephen G. Breyer:

The blood did not deteriorate.

The enzyme did not deteriorate.

But there is no such testimony.

Instead, you seem to be relying on the difference between the word incomplete and inclusive, a difference that Dr. Blake says is inclusive or incomplete.

Jennifer L. Smith:

–Dr. Blake was not reading his own report.

Dr. Blake performed no independent analysis.

Dr. Blake was reading Agent Bigbee’s report.

Agent Bigbee was explaining to the district court the meaning of the notations that he included in his report.

But the… but the dispute goes beyond just experts.

John G. Roberts, Jr.:

So Bigbee… Bigbee was explaining what he meant when he wrote inc.

Jennifer L. Smith:

That’s correct, Your Honor.

John G. Roberts, Jr.:

And it was different than what Dr. Blake said it meant.

Jennifer L. Smith:

That’s correct, Your Honor.

The report at issue was a report prepared pretrial by Agent Bigbee when he did the… the initial enzyme analysis.

Antonin Scalia:

The district court heard all of this, didn’t it, all this evidence, and… and didn’t the district court make a factual finding?

Jennifer L. Smith:

That’s correct, Your Honor.

Not only did the district court note–

Antonin Scalia:

I mean, we… we can call in these witnesses ourselves, I suppose, and hear them all again, but we usually accept the factual findings of the trier of fact.

Jennifer L. Smith:

–That’s correct, Your Honor.

And the district court specifically found as a fact that the blood spill–

John Paul Stevens:

But does that finding rest on the conclusion that Dr. Blake was not credible and Agent Bigbee was credible?

Jennifer L. Smith:

–I think that that conclusion implicitly includes a finding that Agent Bigbee was… was credible and Dr. Blake was not credible.

John Paul Stevens:

And that Dr. Blake was not credible.

Jennifer L. Smith:

There were additional–

John Paul Stevens:

And who… what was Dr. Blake’s background?

Jennifer L. Smith:

–Dr. Blake’s background is… is that he was a forensic pathologist.

John Paul Stevens:

Employed often by the State?

Jennifer L. Smith:

He was often employed by the State.

He had a history of… of being employed by the State.

At this time, he was not a State agent, Your Honor.

He was not… had not worked in any way, shape, or form on this case.

He did not perform the autopsy.

He did not view the body.

He did not perform the enzyme marker study in this case.

Jennifer L. Smith:

He simply came in and reviewed results and photographs that had been conducted and taken by… by individuals previously.

He had no direct responsibility in this case aside from–

John Paul Stevens:

So you’re… you’re basically arguing he was not a credible witness.

Jennifer L. Smith:

–He was not a credible witness, Your Honor.

Stephen G. Breyer:

What… what is the answer to my question?

Because I do think it turns on this.

A lot does.

The trial judge sat there and said this is very important.

Dr. Blake is quoting from something called part 5, which I thought was his report.

And then the trial judge says, where did you get that idea?

Where did you get that idea, that the… that the enzyme wasn’t there in… in the jeans’ blood?

Where did you get it?

And he says I got it from the FBI report, I think.

He’s not certain because he’s remembering his own conclusion.

He isn’t quite sure where he got it from.

And now it turns out that the inc when they… it said inc, which he thought meant there isn’t much enzyme there.

And then they say, well, maybe it meant inclusive.

And he says, that wouldn’t matter because I guess I took it to mean that too would show there wasn’t much enzyme there.

Both would come to the same thing.

And now, if I’m sitting there and thinking, I’m thinking, well, either there is or there isn’t this enzyme in the… in the blood that’s right there.

Easiest thing in the world to prove.

And if somebody is going to dispute it, the State will come back and say, no, no, the enzyme is there.

But they didn’t.

So I read the testimony and I read the fact that you didn’t dispute it with any evidence that’s saying, yes, the enzyme is not there.

Jennifer L. Smith:

Your Honor, Agent Bigbee specifically testified that the enzyme was there.

Stephen G. Breyer:

He did?

Where is that?

Jennifer L. Smith:

He specifically testified on page 282 of the joint appendix.

He specifically said, that doesn’t mean it wasn’t present.

He also pointed out GLO should have been present–

Stephen G. Breyer:

Let’s–

Jennifer L. Smith:

–and said it wasn’t.

Stephen G. Breyer:

–It doesn’t mean it isn’t present isn’t quite the same thing, is it?

Jennifer L. Smith:

Agent Bigbee specifically testified that the enzyme was present.

It could not be typed to any degree of certainty.

So he simply called it inconclusive but that it was present.

If it had not been present, he would have marked N/A, meaning no activity, which was also included in the report in a separate location.

But I think it goes beyond–

Ruth Bader Ginsburg:

Ms. Smith, would… could you focusing on this, what’s called a finding, although the district judge himself puts it under conclusions of law, just… the court concludes that the spillage occurred after the FBI crime laboratory received and tested the evidence.

What is the basis, the specific basis, for that conclusion, that it occurred after the FBI tested the evidence?

Jennifer L. Smith:

–The specific basis identified explicitly in the opinion was that Special Agent Scott, when he removed the… the blue jeans from the hamper in Donna Turner’s trailer, saw what appeared to be bloodstains on the jeans.

That blood ultimately ended up testing as… as positive for blood and, in fact, Carolyn Muncey’s blood so that… so that the stains were observed when they were removed from the hamper.

He also noted that Agent Bigbee testified when he received the blood at the… the FBI laboratory, there was no evidence of contamination.

Agent Bigbee testified to the FBI protocols and said that if there had been any evidence of contamination or spillage, the evidence would have been returned without testing.

So he looked specifically at that.

He also looked and specifically pointed out a significant… the testimony of Paulette Sutton, who indicated… who was the blood spatter expert.

She indicated that some of the bloodstains were mixed with mud, and to her that indicated that there had not been some accidental spillage in… in an evidence container, that the mud and the blood would have… were… were combined to the extent that they would have to get on the jeans at or near the same time.

So those… those things–

Ruth Bader Ginsburg:

Yes, but then there was also the evidence that was not disputed, that it was a dry day and that there was no mud at all at the scene of the crime.

Jennifer L. Smith:

–Your Honor, I’m not sure that the evidence is undisputed that it was a dry day.

If you look at the autopsy report that’s in… that’s in evidence in… in the trial record, it specifically says that it was drizzling that day, that the temperature was between 80 and 90 degrees and it was drizzling.

Mr. House showed up with blood all over his jeans.

He got the blood somewhere.

I don’t… nothing is… I don’t think it’s entirely clear that… that the conditions were dry.

His… his jeans were clearly muddy–

Ruth Bader Ginsburg:

I thought that was–

Jennifer L. Smith:

–and it showed up.

Ruth Bader Ginsburg:

–that it was agreed that there… that the site where the body was found, that that was dry, that that was dry ground.

I thought there was no dispute about that.

Jennifer L. Smith:

I’m not sure that… that it’s clear where Mr. House got the mud on his jeans.

Jennifer L. Smith:

He was… he traveled some distance from the site of the body and… and to his home.

He could have gotten muddy en route.

I… I can’t explain how he got the blood on his jeans.

I know he showed up with muddy jeans.

He got mud on his jeans at some point, and those… and the mud and the blood were… were intermingled.

I’m not sure that they got on there at the same time.

I’m also not sure that the mud that Paulette Sutton saw was… was created by a combination of mud and water.

It could have been perspiration.

It could have been any other type of… of fluid.

It could have been blood creating the mud.

So it’s… that is… that’s very ambiguous, and… and I think that the fact… the significance of the testimony is that it… it did not indicate an accidental spillage after the fact of the blood onto the jeans.

And I think that was… that was the point that the district court took from that.

He wasn’t trying to… to recreate the exact sequence of events in the crime.

He was simply trying to pinpoint at what point the blood spilled because there’s no question the blood spilled.

The… the photograph shows it spilled.

The photograph shows that the… that the tops had come off.

But the… the photograph also shows–

Anthony M. Kennedy:

But… but isn’t there also evidence that the spillage in the styrofoam container seemed to be inadequate to account for all of the blood that was missing from the vial?

Jennifer L. Smith:

–I think there was testimony that… that the appearance of it seemed to be inadequate.

There was no specific quantification of the blood, and… and no one… no one attempted to do that.

It’s not clear whether some of the blood leaked out of the container and maybe wasn’t contained within it.

There were… there were pieces of gauze that had blood soaked in it.

There was also a dispute about the size of the vials.

Anthony M. Kennedy:

Well, but that’s important for this whole question.

Quantity relates to chain of custody.

Jennifer L. Smith:

Your Honor, I think what’s important is the point of the spillage.

If… if the blood spilled after it left the FBI lab… and that was a specific finding made by the district court, and that finding is clearly supported by the record.

What happened to the blood, where it spilled after the fact… and we know that it did spill… really is… is beside the point because–

Stephen G. Breyer:

Another blood question because I… the… you make a point of the… the sheriff having said, well, I… I saw blood on the jeans.

So I looked at the pictures and the pictures seem to have little tiny bits of blood, while a lot of mud.

Stephen G. Breyer:

So I came to the conclusion that no reasonable person could think that that testimony really shows that the… that there was… there was blood from the… from the victim on his jeans.

Now, am I right about that?

You’re going to think I’m wrong, and I want to hear why.

Jennifer L. Smith:

–Well, I do think you’re wrong, Your Honor, because I… I think that if you look in the record, there are at least four witnesses who indicated that they saw the blood.

One was Special Agent Scott.

Stephen G. Breyer:

How could you have?

It’s so tiny.

Jennifer L. Smith:

Well, Your Honor, the… the photographs that you have are photographs that are taken after portions of the jeans have been cut out and sent for testing.

You’re not seeing everything that… that the agent saw.

Special Agent Scott saw what he believed to be blood.

He couldn’t… he didn’t know it was blood, but… but he suspected it was blood.

He identified in… in the habeas proceeding the areas that he believed it to be blood, and it turned out to be blood.

Jerry Morissey, who was the defense serologist and… and, incidentally, just to… that reminds me of… of a comment made by my colleague in his argument about defense counsel’s deficiency in not… in not hiring a serologic expert.

He had a serologic expert.

Jerry Morissey testified, was a serologist, and testified that he received the jeans after the FBI tested it.

He was unable to duplicate the result, but as part of his testimony, he said that he observed some bloodstains, what he thought to be bloodstains, around the FBI cuttings, and he attempted to do additional testing on those bloodstains.

So he saw the stains.

Agent Bigbee testified that he observed the stains.

He didn’t say that some were big or some were small.

He said that he observed them.

As well, Paulette Sutton in the Federal habeas proceeding said that she saw the stains.

She said she couldn’t tell upon observation that it was blood, but it was dark and she suspected it was blood.

It was suspicious.

So we have at least four witnesses who say they saw this blood.

This wasn’t microscopic.

This was something that… that witnesses… and incidentally, Paulette Sutton’s observation was borne out because she did presumptive testing.

So the things that… the spots that she suspected were blood in fact turned out to be blood.

Antonin Scalia:

Ms. Smith, could… could you go on to some of the other elements that are contested here?

In particular, I’m interested in… in Mr. Muncey’s confession.

What… what do you… what do you say about that?

Jennifer L. Smith:

Your Honor, I… I think of all the evidence presented below, I think that the confession evidence is… is perhaps the least reliable in terms of… of the Schlup analysis.

Sandra Day O’Connor:

What did the jury hear about Muncey’s confession?

Jennifer L. Smith:

The jury was never informed of Muncey’s confession because the–

Sandra Day O’Connor:

I thought not.

Jennifer L. Smith:

–the fact of Muncey’s confession didn’t come up until 13-14 years after the trial had already been concluded.

And… and that’s one of the things that the district court, in… in examining their testimony, found what was significant in his–

David H. Souter:

But wasn’t the district court incorrect in that?

Because as I understand it, there was evidence from one of the two witnesses who put in the confession evidence that she had gone to the sheriff’s department to… to tell them about the confession and had simply gotten a runaround and finally left.

So as I understand it, the… the record would not support the finding that… that the… the sources of evidence simply kept silent for over a decade.

Jennifer L. Smith:

–Well, that’s what the witness testified to, Your Honor.

David H. Souter:

Well, is there any reason not… did the… did the district court explain that it was rejecting that element of the witnesses’ testimonies?

Jennifer L. Smith:

The district court did not specifically address that element of the witnesses’ testimony.

The court found that it… specifically that it was not impressed with the testimony of a witness who waits.

And… and this Court has said on many occasions that–

David H. Souter:

I know, but without getting to that point, it sounds as though the district court simply made a mistake, just forgot I suppose, the evidence that the witness didn’t wait at all.

Jennifer L. Smith:

–Your Honor, regardless of whether the witness waited or not, the Court examined the credibility of the testimony and found that it wasn’t credible.

David H. Souter:

Well, but one of the reasons for the finding of… of incredibility was the decade or more of silence.

Jennifer L. Smith:

That was one of the reasons, but the primary reason that the… that the confession itself was inconsistent with the other evidence, and that was what the court specifically pointed to in his opinion.

David H. Souter:

Well, the… tell… help me out here.

As… as has been explored earlier, the confession referred to… to some of the injuries on the body, but not to all of them.

Were there… were there other disparities between the confession and… and the… and other evidence?

Jennifer L. Smith:

There were several disparities, Your Honor.

The confession indicates that there was apparently an extensive argument at home.

The testimony of the daughter both at trial and in the habeas corpus proceeding was that there was no such argument.

She heard no argument.

And the court, incidentally, found her testimony to be very credible.

He observed her demeanor and… and found her testimony to be credible.

So that’s inconsistent.

Ruth Bader Ginsburg:

Well, as far as that’s concerned, she did testify that there was a car out there.

Jennifer L. Smith:

That’s correct.

Ruth Bader Ginsburg:

And the rest of the story doesn’t… doesn’t put the defendant House at the time of the crime in a car.

He’s walking.

Jennifer L. Smith:

Your Honor, the… the testimony at trial was ambiguous about the… about the car.

The witness identified two separate incidents.

She heard a car and she heard someone inquire as to Mr. Muncey’s whereabouts, and then she also heard an individual come and tell her… her mother that her father had been in a wreck down by the creek and heard her mother leave sobbing.

Those are two distinct incidents.

And Lora Muncey testified that she did not know whether she had gone back to sleep.

She never could identify or… or define the specific length of time between the two.

But logically those are two separate incidents.

It doesn’t make sense for someone to come and ask where Mr. Muncey is and then to say, well, he’s down by the creek.

He just had a wreck.

So it… it seems that just logically those are two separate incidents, and there’s nothing in the… in the testimony to indicate that… that they’re same.

Ruth Bader Ginsburg:

But they happened at the same time, didn’t they?

The–

Jennifer L. Smith:

No, Your Honor.

The–

Ruth Bader Ginsburg:

–the child testified to what she heard, and I thought she heard a car and someone in a low voice, and then her mother left with that someone.

Jennifer L. Smith:

–No, Your Honor.

She heard a car and someone inquire as to the whereabouts of her father, and she heard her mother answer.

And then there was a period of time where she said she wasn’t sure whether she went back to sleep or not, and then she heard a person with a low voice come in and inform her mother that she… that… that her father, Hubert Muncey, Jr., had been in a wreck down by the creek.

She heard her mother sob and leave with the individual who had relayed that information.

Those are two distinct incidents.

But beyond that… the… the court, incidentally, found her testimony to be very credible, found that her testimony did not support this… this theory of some sort of confrontation in the house.

In addition, the court also heard the live testimony of Hubert Muncey, Jr. himself, explaining his whereabouts, explaining… and actually denying ever having made the statement.

And… and the court balanced that.

As well, Dennis Wallace, who testified at the evidentiary hearing… he investigated a missing person’s report.

He was in the home.

He saw no evidence of any sort of struggle in the home.

So all of these things balanced against this… this confession, which has absolutely no corroborative support in the record, the court found that the testimony simply wasn’t credible.

John Paul Stevens:

Well, it did have corroboration.

John Paul Stevens:

Wasn’t there a… a wound on the victim that was consistent with… with the confession?

Jennifer L. Smith:

There was a… a wound to the victim’s left forehead.

John Paul Stevens:

Was that not consistent with the confession?

Jennifer L. Smith:

The confession was that Mr. Muncey hit her and she fell and hit her head.

John Paul Stevens:

You tell me yes or no.

Was it… was it consistent with the confession?

Jennifer L. Smith:

It… it could be consistent with the confession.

It was… it was very sketchy.

There… there was a dispute between the two pathologists in the habeas as to whether or not that… that wound could have been sustained by… by falling and hitting her head on the table and actually could have created the… the damage in… in the brain.

Stephen G. Breyer:

So overall, if… looking at this… and that’s why I think the question about the weight to give to the fact finding is important.

You think… you have a theory under which he could have done it, and it’s certainly possible in my opinion.

But also you think, my goodness, if he did it, going and this luring of the woman to the creek… you know, there’s nothing else in the record that suggests he would plot in that way to do this.

Nothing.

The husband is away at the time from the dance.

He could have done it.

They are fighting.

They could have done it.

And if the luring theory correct, the motive was sexual, but the sexual physical evidence is from the husband, not from him.

So the jury is brought into this on a theory that there is a sexual attack and the one… by the defendant, and the one thing that seems disproved pretty much is that.

And now we have two experts, Dr. Blake and Dr. Bigbee.

And reading a page, which I hadn’t read thoroughly until you pointed it out, I’d say they might disagree.

They might disagree.

And it’s just not conclusive.

So if you’re sitting there, do you have to have a reasonable doubt when there’s such strong evidence for both people?

And… and the part that’s bothering me… I… I see what that district judge said on that one point, which he may have thought was peripheral but it turns out to be quite important about when the blood spilled.

But if you look to the underlying thing and I think, well, maybe you’re right, but maybe you’re not right.

And so how do… how do I… how do I do this?

What’s the… what’s the weighing?

I sit there and think, my goodness, I don’t know who committed this crime if I’d been on that jury.

And could… could a person sitting there reasonably come to a conclusion, my goodness, I know?

Jennifer L. Smith:

Well, Your Honor, to answer your question is if you are at that mental state where you are saying maybe this evidence is right, maybe that… that evidence is right, maybe I can go one way or another, then I think the respondent prevails in this case–

David H. Souter:

Well, but that… that says if the… it seems to me you’re simply saying there would be sufficient evidence to go the one way rather than the other.

And… and you may well be right about that, but that certainly is not the reasonable doubt standard.

Jennifer L. Smith:

–I think it goes beyond just having sufficient evidence to convict, Your Honor.

I think you also look at these credibility determinations and you look at the probabilistic result of a reasonable juror.

Antonin Scalia:

Justice Breyer has not heard these witnesses and hasn’t had the opportunity to know whether… whether, for example, these… this testimony about the confession was credible or not.

Jennifer L. Smith:

That’s correct, Your Honor.

Antonin Scalia:

And the hearer of… at the trial did have that opportunity.

Jennifer L. Smith:

The district court heard both of the… both of the sisters regarding the confession.

The district court heard Hubert Muncey, Jr. regarding the alleged confession.

David H. Souter:

But… but may I interrupt you?

What… what about… I want to just follow up on something that Justice Breyer alluded to and that is the significance of the DNA evidence.

And I have tended to… to think that a reasonable juror would look at it this way, but if I’m wrong, I… I want you to comment on it.

One of the… I… I assume, to begin with, that any reasonable juror would have found this evidence, the evidence of the semen stains, extremely significant because not only did the State argue rape as a… as a motive, possible motive, but there was a specific finding of an aggravated circumstance that the murder occurred in the course of kidnapping and rape.

I don’t know of any evidence that would suggest an… an independent kidnapping crime without the rape element under, you know, the circumstances of… of this crime.

So I’m… I… I assume that the reasonable juror, having come to the conclusion that that aggravating circumstance is true, found that a rape was being committed.

If that juror had heard the DNA evidence, that juror would have said the only positive evidence that a rape was committed here would be evidence that pointed to the husband, not in fact to… to the defendant House.

And if… if a juror had heard that evidence, it seems to me it is highly unlikely that any reasonable juror would have concluded that that aggravating circumstance was found, and I suppose that would play a… a significant role in… in the ultimate conclusion.

Now, you have argued that the fact that the DNA evidence shows that it was the husband’s fluids, not House’s, doesn’t conclusively prove that House didn’t rape her, and of course, you’re right.

But my understanding is that there is no evidence from which one would reasonably infer that House did this.

Now, what is… what is your comment on that–

Jennifer L. Smith:

My comment… sorry.

David H. Souter:

–analysis?

Jennifer L. Smith:

My comment on the DNA evidence is that the DNA evidence did nothing more than confirm what the jury was… already knew was very likely, which was that the donor of the semen was the husband.

The jury at trial was informed that the husband… and it went through several pages.

In the joint appendix, it goes all the way from page 56 to 66 where we’re exploring that the semen could have been deposited by the husband or by Mr. House.

Anthony M. Kennedy:

But there was a finding that it was in the course of the rape.

Jennifer L. Smith:

There was–

Anthony M. Kennedy:

That was part of that.

That was… that was one of the… was it one of three aggravating circumstances?

Jennifer L. Smith:

–One of three, and… and that was–

Anthony M. Kennedy:

It was found at the guilt phase or the trial phase, the aggravating circumstance?

Jennifer L. Smith:

–It was at… it was an aggravating circumstance of sentencing, that… that the murder was perpetrated in the… in the attempt… in… in the perpetration or attempt to perpetrate kidnapping or rape or attempted rape.

Anthony M. Kennedy:

Well, then at… at a minimum, it seems to me that the sentencing phase is… is in question by that.

But also, it seems to me if I were a juror and was faced with these conflicting things, I always look for motive.

Jennifer L. Smith:

Your Honor, the motive is… is well supported by the circumstances.

And in fact, if you look at the prosecutor’s argument–

Antonin Scalia:

There is evidence of rape besides… besides the semen.

The semen wasn’t the only evidence of rape, was it?

Jennifer L. Smith:

–No, sir, it wasn’t.

Antonin Scalia:

There were scratches on the thighs.

Jennifer L. Smith:

There was–

Anthony M. Kennedy:

But… but the semen was used to… to connect it to the… to the defendant, and we now know that that’s wrong.

Jennifer L. Smith:

–The prosecutor argued at trial on the motive question, why else would someone lure a woman out of her home with a lie in the middle of the night in her night clothes and take her out into the woods, if not to have some sort of–

John Paul Stevens:

Who put in the evidence… who put in the semen evidence?

Jennifer L. Smith:

–The State put in the semen evidence, Your Honor.

John Paul Stevens:

It didn’t have to prove that she had sex with her husband?

Is that the reason?

[Laughter]

Jennifer L. Smith:

The State put in the semen evidence because it was… it was not inconsistent with Mr. House and that there was other evidence in the record that was not… all of the… all this… this physical evidence was consistent with Mr. House, just as the semen was.

Ruth Bader Ginsburg:

Isn’t it–

John G. Roberts, Jr.:

Can I get back to this… the standard of review question?

Because it goes directly to this point.

Even if you think that the argument based on the semen is not harmless error, in other words, that the prior jury may well have convicted based on that, we’re not reviewing that jury’s determination.

Correct?

Jennifer L. Smith:

That’s correct, Your Honor.

You’re looking at how… how a reasonable juror would view the case if it knew–

John G. Roberts, Jr.:

So we should be looking at the case with the semen evidence showing what we know it to show, regardless of whether we think the prior jury was misled by the admission of that evidence.

Jennifer L. Smith:

–That’s absolutely correct, Your Honor.

If… if the… if a reasonable jury knew that the semen belonged to Mr…. belonged to Mr. Muncey and not Mr. House, the result would be exactly the same because Carolyn Muncey’s blood was all over Mr. House’s pants.

Jennifer L. Smith:

That is an indisputable fact.

And all of this–

Ruth Bader Ginsburg:

–What about at the sentencing stage?

Justice Kennedy brought it up.

The… the prosecutor didn’t emphasize unduly the semen at the… at the guilt stage but, boy, made a big deal out of it at the sentencing stage.

Jennifer L. Smith:

–Your Honor, I disagree that… that they made a big deal.

They made a big deal of the kidnapping at the sentencing phase.

That was… that was of significance.

The… what the prosecutor did–

Ruth Bader Ginsburg:

Where was it in the… in the joint appendix?

I thought it was more than kidnapping.

Jennifer L. Smith:

–Your Honor, the… the sentencing phase argument is not contained in… in the joint appendix.

The closing argument from the guilt phase is contained in… in the joint appendix, but it’s certainly in the… in the transcripts before the Court.

What… what the prosecutor focused on at sentencing was… was the kidnapping and also was the malice and… and I’m sorry… the… specifically the kidnapping–

Ruth Bader Ginsburg:

Said nothing about the semen–

Jennifer L. Smith:

–The–

Ruth Bader Ginsburg:

–at the… at the sentencing stage?

Jennifer L. Smith:

–At the sentencing phase, the prosecutor said that the evidence would have been consistent with sexual molestation, I think was the word that he used.

John G. Roberts, Jr.:

Thank you, Ms. Smith.

Jennifer L. Smith:

Thank you, Your Honor.

John G. Roberts, Jr.:

Mr. Kissinger, you have 4 minutes remaining.

Stephen M. Kissinger:

Very quickly.

Dr. Blake’s testimony was not, in fact, discredited.

Counsel for respondent says that… places great significance on… on Dr. Blake’s interpretation of the initials inc as standing for incomplete penetration, and that… correctly that should have been construed as inconclusive.

Counsel fails to acknowledge the record… record 4 of the district court, volume 6, page 906.

Agent Bigbee himself uses the term inc to mean… or incomplete, just as Dr. Blake did.

So in addition to Dr. Blake saying, yes, I meant the same thing as Justice Breyer observed, Justice Bigbee himself uses the term inc to mean incomplete.

John G. Roberts, Jr.:

Page 282 of the joint appendix, he says inconclusive is what the inc stands for.

Dr. Blake testified it is incomplete penetration, which I haven’t the foggiest idea what that means.

Stephen M. Kissinger:

And that’s correct, Your Honor.

Stephen M. Kissinger:

In trial, he used… he said that inc stands for incomplete, and then Agent Bigbee at trial proceeded to use incomplete and inconclusive interchangeably just as Dr. Blake did.

In addition, when… concerning Dr. Blake’s testimony, we have to remember that we still have the missing tube of blood, and the blood on the jeans is more consistent with blood coming from the degraded blood sample than it is from blood which came… got on the jeans during the time of the offense.

The other thing, which I think is an important matter to… to keep in… keep in mind regarding Dr. Blake’s testimony and Dr. Bigbee’s, is that Dr. Blake and Agent Bigbee both agree on the basic science that blood enzymes deteriorate according the various environmental factors and that as they deteriorate, they become less detectable.

In terms of the… the implicit credibility findings, which respondent relies upon, the district court during its opinion demonstrated that it know… it knew how to make credibility findings.

In fact, it made two specific credibility findings in this case when it found Mr. House’s testimony to be incredible and the testimony of Lora Muncey to be credible.

As far as the… the suggestion that, yes, there was… the crime scene was wet, that that… that there was water at… or there’s a possibility of mud at the crime scene, not only is this contradicted by the absence of the mud… of mud on the victim’s clothing, but also the drizzling which counsel described occurred on the day following the murder, not before it happened, not at the time the murder was occurring, but on the day following the murder.

So, in fact, there was… the murder scene was dry, just as petitioner has informed the Court.

As far as the daughter not hearing any sign of a struggle, the daughter’s testimony was that she did not hear any sign of a struggle when she got up immediately after her mother left the home.

The testimony at the evidentiary hearing, unrebutted and unimpeached, was that at that point in time when she was hearing nothing, her mother was, in fact, at the C&C Recreation Center involved in a fight with Hubert Muncey, Jr. In fact, that testimony goes to Mr. House’s innocence because at the time she hears nothing, she hears no sign of a struggle, is the very time that the State of Tennessee contended that Mr. House was out murdering Carolyn Muncey, and yet the daughter who was outside of the home within 50 yards of where this murder occurred heard absolutely nothing.

Justice Scalia asked was there, in fact, other evidence of… of rape.

Wasn’t there, in fact, bruises found on her thighs?

On cross examination, the pathologist testified, admitted on cross examination, that the scratches on Ms. Muncey’s thighs were more likely attributable to her being dragged through the brush and her body being hidden which, incidentally, is an act which Mr. Muncey confessed to doing.

In addition, as I stated before, the evidence has to be viewed in light of the entirety of the evidence of the record.

It isn’t just the blood evidence.

It isn’t just the semen evidence.

It isn’t even just the confession.

It’s also the fact that the same witness who puts Mr. Muncey… or who Mr. House even leaving the Donna Turner home on the night of the murder puts Mr. House leaving the home at a… thank you, Your Honor.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.