Lawyer asks court to stop client’s retrial after delay

CINCINNATI (AP) — A lawyer for a man who spent 22 years on Tennessee’s death row for murder asked a federal appeals court on Thursday to stop the state from trying to prosecute his client.

Paul House is scheduled to be retried in June, the third date set since a new trial was ordered two years ago.

His lawyer told a panel of the 6th U.S. Circuit Court of Appeals that prosecutors have dragged out proceedings and have no new evidence to use against House.

“What we’ve seen in this case is a pattern of delay through this very day,” defense attorney Stephen Kissinger told the panel.

House was convicted in the July 1985 slaying of a woman whose body was found near her rural home northeast of Knoxville. The Tennessee Supreme Court affirmed the verdict and death sentence.

In 2006, the U.S. Supreme Court ruled that modern DNA evidence might have raised questions of guilt if sophisticated tests had been available when House was arrested.

The next year, a federal judge ordered that House get a new trial or be set free. The appeals court in Cincinnati agreed.

Kissinger said Tennessee prosecutors have “behaved in an abusive manner” in a number of ways, including delaying a retrial while test after test showed the same DNA results that the Supreme Court said would have failed to win a conviction against House.

Judge Gilbert Merritt repeatedly questioned the attorney representing the state about the delays.

“Is it clear and certain this case is going to be retried in June?” Merritt asked. “Can you answer that yes or no?”

Attorney James Gaylord told Merritt that he could only speak to what is in the record and suggested that the question was not germane.

“It’s germane when the object of the appeal is to prevent the retrial,” said Merritt, who appeared to grow frustrated as he continued to press his questions about the state’s intent.

“So the state doesn’t know if the case is going to be retried?” he asked. “So we’ve got it on the record, the state of Tennessee’s counsel here today declined to answer the question?”

Gaylord said he could refer only to the court record.

“The fact of the matter is the state has acted with alacrity,” Gaylord said. “There’s simply no foot-dragging here on the part of the state.”

Merritt, being more candid that usual for an appeals court judge, said there appeared to be “pure stubbornness and vindictiveness on the part of the state” in wanting to continue to prosecute House when the Supreme Court has said that no reasonable person would convict him on the evidence that was presented at trial.

“All the circumstances in the case add up to vindictive prosecution,” Merritt said.

The panel took the case under consideration without saying when it would rule.