The Supreme Court heard arguments in a death penalty case yesterday that were highly technical in nature. Charles Lane of the Washington Post does a good job of explaining the issue in Arguing 60(b): a Rule of Life or Death?"

"Abdur'Rahman is a death-row inmate in Tennessee, convicted of murder and sentenced to death in 1987. He says he was the victim of a dishonest prosecutor who hid exculpatory evidence. No Tennessee nor federal court has ruled on the merits of that claim."

"If Abdur'Rahman's filing in federal court was a Rule 60(b) motion, as his lawyers insist, then he could be entitled to such a hearing, which might lead to a reversal of his sentence. But if, as lower federal courts have ruled, it was a second or successive petition for habeas corpus -- that is, one that raises an issue another court has dealt with -- it would be forbidden under a 1996 federal law designed to streamline death-row litigation. The way to execution would be clear."

The arguments started out rough for the defense, but Justice Stevens later "all but took over" the hearing, and some of the other justices seemed to come over to his side.

"He noted that the key point in Abdur'Rahman's argument is that the District Court that rebuffed his request for a new hearing on his claim of prosecutorial misconduct was unaware of an obscure Tennessee law that permitted Abdur'Rahman's request. Abdur'Rahman's attorneys and the state's were also in the dark, he said."

"Since the Tennessee Supreme Court clarified the law in a subsequent regulation, Stevens asked, why shouldn't Rule 60(b), a catchall provision designed to let courts correct serious mistakes, apply? He's not asking for a second consideration of a claim; he's asking for consideration of a claim that's never been litigated," Stevens said.

"Other members of the court picked up on Stevens's theme. "You're saying he's just out of luck," Justice Stephen G. Breyer said to Paul Summers, the Tennessee prosecutor arguing the case. Yes, sir," Summers conceded. "That seems terribly unfair," Breyer observed."

Stevens and Breyer make a good point. If the man asserts he is innocent, or was convicted unfairly due to prosecutorial misconduct, he deserves at least one hearing on the issue. No artificial procedural rule, even if it was enacted by Congress, should be allowed to deny a hearing when death is at issue. If the state courts and the lower federal courts refused to consider his claim, we think the Supreme Court ought to--or at least issue an order remanding the case back to the lower courts to do so.