The Sixth Circuit has resolved a long-standing conflict by allowing death row inmates with claims of factual innocence to pursue them, even though they have been determined to be procedurally barred from doing so. The opinion doesn't free the defendant, Paul House, but it stops his execution while the case goes back to the state court in Tennessee to determine whether other avenues may exist to review the claim.

We know, it sounds awfully technical, and it is, but some of the language in the opinion, particularly that criticizing the dissent point of view, is instructive, hopeful and worth a read through:

The opinion is written by Judge Gilbert Merritt (no relation) and available here.

From the opinion:

"In this death penalty case from Tennessee, the habeas petitioner presents a strong claim of "actual innocence" or "miscarriage of justice".... The Supreme Court has assumed that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant habeas relief if there were no state avenue open to process such a claim."....Justice O'Connor has referred to such an execution as a "constitutionally intolerable event." 506 U.S. 417. As a matter of traditional comity and respect for our colleagues on the Supreme Court of Tennessee, we therefore certify certain questions to that Court in order to ascertain whether there remains a "state avenue open to process such a claim" in this case."

" The petitioner, Paul House, has been sentenced to death on the basis of a set of facts that now turns out to be false in significant respects...."

"The question is not, as our dissenting colleagues seem to believe, whether the trial evidence with the new information remains sufficient for a juror to vote to convict but rather "if they [the new statements] . . . are true," whether "a juror, conscientiously following the judge's instruction requiring proof beyond a reasonable doubt, would vote to convict." 513 U.S. at 331. This is far different from the test used by our dissenting colleagues -- the sufficiency of the evidence in the trial record. The dissent looks to whether there is evidence that could have supported a jury's decision to convict, regardless of the new evidence. But Schlup looks instead to the "likely behavior of the trier of fact" -- what a conscientious juror would do given all the evidence. Justice Stevens specifically holds, in reversing the Eighth Circuit, that "petitioner's showing of innocence is not insufficient solely because the trial record contained sufficient evidence to support the jury's verdict." Id.(4)"

" With respect to the question of "delay," it is better to be safe than sorry, as we learned after Lloyd Schlup's case was reversed. We must remember, as members of the Supreme Court have advised us, that "death is different -- that "[t]he taking of life is irrevocable," so that "[i]t is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights," Reid v. Covert, 354 U.S. 1, 45-46 (1957), (Frankfurter, J. concurring), and that "[i]n death cases doubts . . . should be resolved in favor of the accused," Andres v. United States, 333 U.S. 740, 752 (1948), and that "[t]he Court . . . has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S. 992, 998-99 & n.9 (1983)."

"We must take seriously the Supreme Court's admonition in Schlup, quoted above, that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant habeas relief if there were no state avenue open to process such a claim," 513 U.S. 298, 314 n. 28. In such cases as this one, it is not obvious what avenues of relief are open, and we are not inclined to agree with our dissenting colleagues that the door should be closed and the man executed without asking any questions."

Howard Bashman of How Appealing discusses one of the dissenting opinions.