ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

Two major death penalty decisions at the Supreme Court today. First, the Court ruled unanimously that death row inmates may challenge lethal injection as an unnecessarily cruel and thus unconstitutional punishment. And in the second case, the Court expanded the ability of death row inmates to challenge their convictions in federal court based on new DNA evidence.

NPR's Nina Totenberg reports.

NINA TOTENBERG reporting:

Thirty years ago, death by lethal injection was conceived of as a more human way to execute the condemned and 37 states now use that method. But the lethal cocktail that's administered has not changed and critics charge that unnecessary suffering is caused by the drug combination and the lack of training for those who administer it.

The problem is that the anesthesia administered first is short-term, but is followed by a paralytic that prevents the condemned person from indicating that he's still conscious and feeling while the lethal and extremely painful third drug is administered. Indeed, the last drug is considered so painful that it's banned in 12 states for putting down pets.

Today the Supreme Court allowed challenges to lethal injections to go forward in the lower courts even when they're brought at the last minute, as was this one from Florida, where the Supreme Court granted a stay of execution when the condemned man had already been strapped to a gurney and lines put in his arms.

But the Court also said that a stay of execution in such cases should not be automatic. Writing for the Court, Justice Anthony Kennedy said that both the state and the victims of crime have an important interest in the timely enforcement of the sentence. And he said that death row inmates should not be allowed to use the courts to endlessly postpone punishment.

Still, most experts in the field seem to agree today that there will be more stays of execution while the lower courts consider the various methods of lethal injection and whether they needlessly inflict pain. Fordham Law professor Deborah Denno has written extensively about lethal injections.

Ms. DEBORAH DENNO (Fordham University): I think that this indicates that lethal injection will just be done in a different way, that there's going to be ways to improve the method of execution that's going to be satisfactory to an Eighth Amendment standard. I don't see it being abolished entirely.

TOTENBERG: The high court was not unanimous in its second death case today, a case that involved the conviction 20 years ago of Paul Gregory House for the murder of a neighbor. At trial, the prosecution told the jury that the motive for the killing was rape, that the physical evidence, both semen and blood, tied House to the crime. House, who had a previous record of sexual assault, consistently maintained his innocence and years after the crime the new science of DNA produced evidence that directly contradicted evidence presented at trial.

The semen on the victim's body was not House's, but the victim's husband's. Moreover, as Justice Kennedy noted in his majority opinion, a state medical examiner later testified that the bloodstains on House's blue jeans were likely spilled on the jeans from open vials of the victim's blood that was packaged with the blue jeans. This plus other evidence, including testimony of a drunken confession by the victim's husband, does not prove House's innocence said the Court majority.

But it does meet the high standard the Court has required in order to open up a case to federal court review long after the trial and federal and state appeals. This is the rare case, said the Court, where had the jury heard all the conflicting testimony now available, it is more likely than not that no reasonable juror viewing the record as a whole would have been without reasonable doubt as to guilt.

While some experts saw the House ruling as limited to one case, others did not. Peter Neufeld is co-director of the Innocence Project.

Mr. PETER NEUFELD (The Innocence Project): Basically, what the Supreme Court is saying is we've been making it very difficult for individuals to process these habeas corpus claims. But you know what? We've gone far enough. In fact, we may have gone too far.

TOTENBERG: The case will now go back to the lower courts which must examine whether, as House's lawyers claim, for instance, that the prosecution misled the jury.

Mr. NEUFELD: We have learned, for instance, that in fact the way the prosecution put on the case involving the semen evidence involved scientific fraud by an FBI agent who testified as a prosecution witness. So the lower court will hear that for the first time. It has never heard that evidence before.

The lower courts are now going to have to look at it through a different lens than they've been looking at it for the last ten years. And perhaps now lean more in the direction of allowing that claim to be heard by the district court.

TOTENBERG: The vote in the DNA case was 5 to 3, with Justices Scalia, Thomas and Chief Justice Roberts in dissent. And it was an illustration how in death cases, as in other areas, Justice Kennedy has now become the pivotal vote on the Supreme Court. Looking at today's two death cases, Kent Scheidegger of the Criminal Justice Legal Foundation saw nothing to really concern death penalty supporters. The DNA case, he said, was just one case and the lethal injection issue would eventually work itself out.

Mr. KENT SCHEIDEGGER (Criminal Justice Legal Foundation): At some point the issue will be resolved and we will have a lethal injection protocol that is established as valid. And at that point the issue will go away.

TOTENBERG: But ACLU Legal Director Steven Shapiro disagreed.

Mr. STEVEN SHAPIRO (American Civil Liberties Union): I think there are five people more generally on this court who are no longer prepared to simply allow business as usual in the death penalty system that I think now every body concedes is fundamentally flawed.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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