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CNN Presents

CNN Presents: What's at Stake: The New Supreme Court

Aired October 02, 2005 - 20:00   ET


CAROL LIN, CNN ANCHOR: Good evening, I'm Carol Lin. "Now in the News," a large recovery operation is under way on Lake George in Upstate New York after a tour boat capsized. The county sheriff puts the death toll now at 21. The Ethan Allen overturned apparently after being swamped by the wake from another boat.
And despite stepping down as House majority leader, Congressman Tom DeLay says he will continue to help the Republican Party try to push its agenda through Congress. DeLay was indicted in his home state of Texas last week. He's accused of breaking the state campaign finance laws, a charge he denies.

And in Washington today, President Bush attended a Roman Catholic worship service called the Red Mass which honors the legal community. Chief Justice John Roberts also attended.

And on the eve of the new high court session tomorrow, next at 8:00 p.m., the premiere of a special CNN PRESENTS: "What's at Stake? The New Supreme Court", an in-depth look at the controversial issues facing the high court and how the new chief justice will affect the dynamics of the court.

At 9:00, be sure to check out LARRY KING WEEKEND. Former President Bill Clinton talks about helping hurricane victims.

And, of course, I'll see you again at 10:00 with the latest news. But right now, a very special CNN PRESENTS.

ANNOUNCER: This is a special of CNN PRESENTS. There's a new Supreme Court. It will impact generations of Americans. Tonight, four hot-button cases to be heard by the highest court in the land. How could the rulings affect your life?

A fight over the right to die.

GREG YADEN, TERMINALLY ILL PATIENT: And I expect to die when I take the medication to be prescribed.

DR. KENNETH STEVENS, OPPOSES RIGHT TO DIE: I could not do it. I would become a -- basically an executioner.

ANNOUNCER: A new test for abortion laws.

UNIDENTIFIED FEMALE: I had an unplanned pregnancy when I was a young teenager.

BARBARA HAGAN, NEW HAMPSHIRE STATE REPRESENTATIVE: Kids make funny decisions. They don't always think.

ANNOUNCER: DNA evidence challenges a death sentence.

RANDI KAYE, CNN CORRESPONDENT: If you didn't kill her and you didn't rape her, how did you end up here 20 years ago?

PAUL GREGORY HOUSE, DEATH ROW INMATE: I guess that's the million dollar question.

ANNOUNCER: And a question of gay rights and the First Amendment.

REP. RICHARD POMBO, (R) CA: What we're saying is if you don't allow military recruiters on campus, then you don't qualify for federal money.

UNIDENTIFIED MALE: Now that's what I would call extortion.

ANNOUNCER: Now in this CNN special presentation, the consequences of change, "What's at Stake: The New Supreme Court."

AARON BROWN, CNN ANCHOR: Welcome to CNN PRESENTS. I'm Aaron Brown. For the first time in decades, vacancies are changing the make- up of the U.S. Supreme Court. The new chief justice, John Roberts, has been confirmed and sworn in. And Justice Sandra Day O'Connor will step aside as soon as the president's next nominee is confirmed by the Senate.

Roberts' view is that his legal opinions will be put to the test early on, in a range of highly controversial cases. The Supreme Court has already agreed to hear cases this term which involve abortion and gay rights, the death penalty, and assisted suicide, cases that go well beyond the courtrooms and legal briefs.

So we begin with Gonzales versus the State of Oregon, a fight over the right to die in a state with a unique view of life and death.

From Oregon, here's CNN's Frank Sesno.


FRANK SESNO, CNN CORRESPONDENT (voice-over): It's a good day for Greg Yaden, so he's off to enjoy one of his favorite pastimes. But at 59, he knows he hasn't got much fishing left. You see, about a year ago, Greg collapsed after a business trip. He ended up in the hospital. The diagnosis: acute myeloid leukemia.

Chemotherapy bought some time. But doctors could not find what Greg needed most, a suitable bone marrow donor. The disease is moving fast now, and Greg measures his future in weeks.

GREG YADEN, TERMINALLY ILL PATIENT: As far as dying, yes, I'm scared. But I'm also accepting. I would be terrified if didn't have some say in how this was going to end.

SESNO: Greg is taking charge of his death. He showed me the room where he plans to die. YADEN: All my friends can come up and visit and that sort of thing.

We'll have hospice up here.

There are a series of questions...

SESNO: And read from this form this he signed, requesting a lethal dose of barbiturates.

YADEN: I understand the full import of this request. And I expect to die when I take the medication to be prescribed.

I'm not going to take it unless I'm really, really, really losing it. And so it's not going to be, oh gosh, I'm committing suicide. It's like, oh God, please release me from this. I just can't take this anymore. You know, give me some help here.

SESNO: Greg's help comes from his fellow Oregonians who twice have voted for the state's Death with Dignity Act, the only such law in the country. It allows a doctor to write a lethal prescription if a patient is certified mentally competent and within six months of death from disease.

Between 1997 and 2004, 208 terminally ill Oregonians took their lives in this way, the vast majority saying they wanted some autonomy at the end, as does Greg.

YADEN: If there was any question I could live, I would be fighting tooth and nail. I would fight tooth and nail to live. But, quirk of fate, whatever, I -- you know, I don't. I don't.

DR. KENNETH STEVENS, OPPOSES RIGHT TO DIE: This is not what we need.

SESNO: Greg's prescription, Oregon's law has triggered a debate as passionate as it is eternal. Who controls life and death?

For 38 years, Dr. Kenneth Stevens has been a radiation oncologist in Oregon. He believes the Death with Dignity Act breaks faith with patients and his profession.

STEVENS: What I see with assisted suicide is that the patient is basically saying, I want to die, breathing is my symptom and the cure for that breathing is to cause my death. And that is not what medicine is about.

SESNO: The United States Justice Department agrees. In 2001 under Attorney General John Ashcroft, it challenged Oregon's law and lost. But the government appealed. So now the Supreme Court will decide.

Greg Yaden doesn't know if he will still be around when the case is argued. But he has a message for everyone involved, especially the justices who will hear the case.

YADEN: I would just ask, what business is it of yours? Do you know what I've gone through? Do you know what I'm going through?

SESNO: Missy, Greg's partner for 12 years, is right there with him.

MISSY HECTOR, GIRLFRIEND: The ferns are doing good.

SESNO: They face the disease and his decision together.

HECTOR: He's terminal. He's not changing what is going to happen to him. He's just hastening it in a manner to give him peace of mind.

DR. NICK GIDEONS, SUPPORTS RIGHT TO DIE: Looking at today's patient list.

SESNO: Dr. Nick Gideons (ph), director of a family health clinic with more than 2,000 patients, is not Greg's doctor, but he has written seven lethal prescriptions, and in present, at five deaths.

GIDEONS: I won't deny that I've cried at times around this. But it has been a tremendous privilege. I feel that I've relieved the suffering in a very palpable, real way for patients. And I think I've also helped families honor their family members' final wishes in the face of terrible illness.

SESNO: The Supreme Court will determine whether doctors like Gideons can continue to write their prescriptions, or whether they're in violation of the Controlled Substances Act.

Gideons is well aware of the legal and moral arguments and the Hippocratic Oath, I noticed, that hangs on his wall.

(on camera): "I will give no deadly medicine to anyone if asked, nor suggest any such counsel."

GIDEONS: I can provide a patient aid in having the good death that they hope for. I don't feel I'm breaking any of the Oath. Our goal is to help patients in any way that we can.

STEVENS: I could not do it. I would become basically an executioner rather than a healer.

SESNO (voice-over): Dr. Stevens' opposition to Oregon's law isn't just professional. It's also very personal. Shortly before his first wife died of cancer in 1982, her doctor suggested an extra large dose of morphine.

STEVENS: As I helped my wife to the car, she said, Ken, he wants me to kill myself. It really devastated her that her doctor -- her trusted doctor -- would basically feel that her life was no longer of value.

SESNO: None of this changes the way Greg Yaden or those close to him, including his brother Dave, see things.

DAVE YADEN, BROTHER OF TERMINALLY ILL PATIENT: For those who say we should be in the business of living, well, my brother is dying, period. He's going to be dead. He ought to have a chance to do that in a way that gives him as much comfort and the rest of us as possible. SESNO: Greg doesn't know if he will swallow the bitter liquid at the end. But he sees it as an insurance policy he will use if he must.

YADEN: I won't call ahead and say, we have an expected death. They won't then send an ambulance with sirens screaming and bells ringing and that sort of thing. And my neighbors all know. We're close. So I just want to go to sleep.

SESNO (on camera): On your terms.

YADEN: On my terms.


BROWN: Throughout the hour, to help us better understand the significance of cases like Gonzales versus Oregon, and how the changes in the court might affect the decisions, we will be joined by our legal analyst, Jeffrey Toobin.

Jeffrey, the Gonzales case is not purely a case about whether you have the right to die.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Not at all. In fact, what makes the case so interesting is that it's really the clash of two principles that conservatives both embrace.

On the one hand you've got tough regulation of drugs, which is something conservatives like. And the other, you have states rights, don't let Washington tell you what to do. Here they are in conflict.

BROWN: Is there -- can we look at Judge Roberts' record in this case, or can we look at previous Supreme Court rulings as well, and say the court has a way of seeing these issues thusly?

TOOBIN: I think you can, especially since there is such a recent precedent that is really related closely to this case. Last term the court ruled to 6-3 in the medical marijuana case that federal law regulating drugs trumped a state law that made medical marijuana legal.

Here you have a very similar idea. The federal government is trying to trump a state law regulating drugs. And I expect you may see a similar result.

BROWN: And do you think it matters in any sense that in the one -- in the Oregon case you have terminally ill patients? We're in a time when the court, even when it upheld the Washington law some years back, which made assisted suicide illegal, worried about people being kept alive beyond a reasonable point.

TOOBIN: You know, there are very sympathetic people, as the piece showed. You know, they are even more sympathetic than the medical marijuana plaintiffs. But this is a court that's tough on drug regulation, wants drugs regulated. And I think that's going to be tough for the Oregon forces, in this case, to overcome. BROWN: Jeffrey, thank you.

The abortion debate dominates whenever there is an opening on the high court. And for the first time in five years, the new Supreme Court will hear a case centered on abortion. When we come back, the people involved.



BETH BRINKMANN, ARGUED 20 CASES BEFORE U.S. SUPREME COURT: The arguments at the Supreme Court nowadays are very interactive, very different than, say, 20 years ago. Back then an advocate could stand up and make a presentation, and every once in a while a justice might ask a question. Many of the justices would ask only one question at that.

Today it's a whole different ball game. In at least one case, a justice started asking questions before I even got to the podium. Generally they let you get out two or three sentences, but after that, most of the time it is questions.


BROWN: Ever since Roe versus Wade, abortion has been at the center of the debate over any vacancy in the U.S. Supreme Court, perhaps more so this time around because the high court has agreed to hear a case involving abortion for the first time in five years.

The case will likely determine the constitutionality of a law in the state of New Hampshire which requires minors to get written approval from a parent or a guardian before obtaining an abortion.

The Supreme Court's decision could impact everything from the state's right to limit abortion to the protection and the future direction of women's health care issues in the country.

Here's CNN's John King.


JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT (voice-over): Laughter as Amanda playfully orders her brothers around the kitchen. Precious family time at home in New Hampshire before she heads back to college at 20, ready to begin to her senior year, and to reveal a secret.

AMANDA: I had an unplanned pregnancy when I was a young teenager.

KING: For the past six years, a secret known only among a tiny circle of family and friends.

AMANDA: I decided that it was best for me to have an abortion because I did not want to be a parent at that point in my life. KING: Sharing her story now, Amanda says, because of the looming Supreme Court test of a New Hampshire law requiring parental notification before a minor can receive an abortion.

AMANDA: These laws are only about eroding access to abortion, that they're not about helping parents, and they're not about helping young women.

BARBARA HAGAN, NEW HAMPSHIRE STATE REPRESENTATIVE: I would prefer that we define human life at the beginning.

KING: State Representative Barbara Hagan is on the other side of the abortion divide. She helped write the law that now hangs as a proud trophy at the New Hampshire Right to Life headquarters.

HAGAN: It's a step forward for us. And it's a crack in the glass. And that makes us very, very hopeful, even though it's a small -- it's a very small, incremental step.

KING: But the state's parental notification law has never been enforced because of lower federal court rulings blocking its implementation, decisions the Supreme Court agreed to review in this fall's term.

(on camera): The state's argument, that the law passed here in June 2003 is constitutional, is being watched well beyond New Hampshire's borders. More than 30 states require either parental notification or parental consent before a minor can receive an abortion.

And so the court's decision in this case, its first abortion case in more than five years, will have immediate national ramifications.

(voice-over): The case is by no means a direct challenge to the landmark Roe v. Wade decision establishing abortion rights. But it is a fresh test in the major political and legal debate in post-Roe abortion battles -- how much leeway do states have in restricting abortion access?

A brief filed by anti-abortion legislators who back the New Hampshire law asserts that if the Supreme Court invalidates it, it would in effect overturn every state statute requiring parental notification prior to performing an abortion on a minor.

KAREN PEARL, PLANNED PARENTHOOD: Legislating family closeness doesn't usually work. And instead, what we really need to do is make sure that there's protections for young people, for women of all ages.

KING: Planned Parenthood and the ACLU challenged the New Hampshire law on grounds it does not exempt minors with significant health problems from the 48-hour parental notification requirement.

PEARL: It is a case that really does put to question whether women's health and safety will be the law of the land, whether any case that has restrictions on abortion will always have an exception to preserve women's health and safety along with women's life. KING: On the state's appeal, Attorney General Kelly Ayotte argues the lack of a health exemption is not at odds with the 1992 Supreme Court ruling that states must not create an undue burden or substantial obstacle to abortion access.

The law permits immediate abortions if the life of the mother is at stake, and allows doctors to seek an emergency judicial waiver of the notification requirement when there are non-life-threatening health issues.

KELLY AYOTTE, NEW HAMPSHIRE ATTORNEY GENERAL: This judicial bypass provision allows the physician an out. And so it's a safety valve in the statute if this case arises.

KING: If the high court sets a new standard on the question of health exemptions and abortion laws, it could influence the future not only of parental notification and consent laws, but also the contentious legal battle over banning late-term abortions.

President Bush signed a federal ban in November 2003, but it has not taken effect because of legal challenges. The federal law contains no health exemption. And a similar Nebraska state law was declared unconstitutional in a 5-4 Supreme Court decision in 2000.

AYOTTE: It is an opportunity, I think, for the court to provide clarity in this area and hopefully to reduce the number of legal challenges that are brought in this area.

HAGAN: There will be a significant domino effect if New Hampshire's law is struck down, and there is a new court. I think in that instance we will see new challenges to all of the laws that the Supreme Court has already upheld.

KING: With the legal debate, of course, comes an emotional political struggle, not only over abortion, but the line between individual privacy and parents' rights.

HAGAN: I happen to have four children that are minors, in that age frame. And kids make funny decisions. They don't always think. They're still very immature. And I think by giving parents notice, you give them an opportunity to maybe reach out.

AMANDA: I'm really happy and I believe that I will have a family some day and it will be in a context that's right for me with a man who loves me. I would like to tell that person who told me that I would regret -- that if I had an abortion I would regret it for the rest of my life. I absolutely don't. It absolutely was the right decision for me.

If you want to talk to your parents, then you can do that. But that the state steps in and tells you that you have to do that in order to control your reproduction is very disempowering.


BROWN: Back with our legal analyst, Jeffrey Toobin. Courts in the past have ruled that abortion is legal and has to be available. There can't be undue restriction on it. They have ruled that parental notification is OK as long as there is an option, a judicial option. So what makes New Hampshire such a critical moment in the abortion debate?

TOOBIN: Well, it's a critical moment, first of all, because -- just, the court hasn't dealt with abortion in five years. And the subtle fact at issue in this case is, can a woman -- a young woman, get an abortion if there is a risk simply to her health? Not life and death, but if her health is in jeopardy, can she go around the parental notification?

That's the subtle issue. But most of all, what everybody is interested in is what does Chief Justice Roberts think about abortion? We really don't know that after those hearings.

BROWN: Will the -- not will, might the decision tell us where the court would ultimately rest if somehow abortion in total came back before it, if they were asked to re-hear Roe versus Wade?

TOOBIN: You know, we'll get a clue. I don't think you will know for sure. One of the things John Roberts said in his confirmation hearings over and over again was, you know, he wants to work small. He doesn't want to, you know, make grand pronouncements. So if he writes the opinion in this case, I think it's likely he will address only the New Hampshire law.

He will not make grand pronouncements about abortion. But if he upholds these restrictions, you can be sure that the right to life forces will be pleased, and the right to choose forces will be very disappointed.

BROWN: Jeffrey, thank you.

Up next, can DNA evidence save a Tennessee man from death row? The U.S. Supreme Court will weigh in soon.



COURTLAND REICHMAN, APPEARED ONCE BEFORE THE SUPREME COURT: Every piece of correspondence that we receive from the court while you're getting ready has a reminder in it that what you're supposed to say when you get there is, Mr. Chief Justice, and may it please the court.

Every book that you read reminds you, when you get there, they go through a 15-minute pre-jump sequence. And they are sure to remind you at least twice to say, Mr. Chief Justice, and may it please the court.

And as if that's not enough, on the podium when you get up, Mr. Chief Justice, and may it please the court. So they are very particular about that. And if there's anything you don't want to do wrong, it's that.


BROWN: Back in 1985, Paul House was convicted of raping and murdering a woman in Tennessee. He has been on death row there ever since. House has always maintained his innocence. And now new DNA evidence has emerged. The Supreme Court has agreed to hear House versus Bell (ph), and the outcome could determine when prisoners can use DNA science to obtain a new trial.

For House, the high court's ruling could literally mean the difference between a new trial and possible freedom, between life and death.

Here's CNN's Randi Kaye.


RANDI KAYE, CNN CORRESPONDENT (voice-over): Riverbend Maximum Security Prison in Nashville, Tennessee, is what Paul Gregory House calls home.

For 20 years he has lived here, on Death Row. House has multiple sclerosis and is confined to a wheelchair.

(on camera): Did you kill Carolyn Muncey?


KAYE: Did you rape Carolyn Muncey?


KAYE: But if you didn't kill her and you didn't rape her, how did you end up here 20 years ago?

P. HOUSE: I guess that's the million dollar question.

KAYE (voice-over): It was July 13, 1985, when Paul House's life took a giant leap toward death. That day his neighbor, Carolyn Muncey, disappeared from this tiny shack she and her family called home.

Her body was found the next day less than 100 yards from her home in Luttrell, Tennessee. The mother of two had been badly beaten. There were signs of a vicious struggle.

Paul House was a friend of Muncey's husband. He was also a convicted rapist out on parole.

PAUL PHILLIPS, DISTRICT ATTORNEY GENERAL: I think that he knew that he could trick her to leave the house and get her down by that creek. And I think his intentions were a sexual assault. The reason she was killed is because she fought back.

KAYE: When police questioned House about the murder, he told them he had been home all evening. But his live-in girlfriend admitted House had gone out for about an hour.

(on camera): Not telling them that you had left the house that night turned into a fatal mistake for you.

P. HOUSE: Pretty much.

KAYE (voice-over): House had no idea how bad things were going to get. He told police he was jumped while out walking. He escaped through the woods, arrived home with cuts and bruises.

PHILLIPS: I don't buy it at all, no. That would be called hogwash in Luttrell, Tennessee.

KAYE (on camera): House says he left home the night of the murder about 10:45, and returned an hour later. That would give him about 60 minutes to find, rape, and kill Carolyn Muncey, then drag her body about 100 yards and hide it.

In order to do all of that in such a short time, the defense figures House had to run there and back, four seven-minute miles, leaving just a half hour for everything else.

P. HOUSE: I've been smoking since I was like 12 or 13, a long, long time.

KAYE: So were you capable of running four miles that night?

P. HOUSE: Hell, no!

KAYE: House also raised eyebrows when someone said they spotted him at the crime scene, just hours before the body was discovered.

But House's biggest problem, forensic evidence. His jeans, transferred to the FBI lab for analysis, had Carolyn Muncey's blood on them. The chief medical examiner for the state of Tennessee testified the blood found on House's jeans did not come directly from Carolyn Muncey's veins, but likely spilled from the samples en route to the lab.

PHILLIPS: I actually saw the evidence being prepared to be transported to the FBI laboratory. It was packaged properly.

KAYE: In the end, the jury convicted House of first degree murder and sentenced him to die.

You're angry.

P. HOUSE: Yes, you could say that.

KAYE: Bitter?

P. HOUSE: Yes. But I believe they're going to take care of that in the end. Stick a needle in me.

KAYE (on camera): Inmates on Death Row in Tennessee who committed their crimes after 1999 can only die by lethal injection, but if the crime was committed before that, as is the case with Paul House, the inmate has a choice. Lethal injection or the electric chair. House says if it comes down to it, he will choose lethal injection. (voice-over): But House may not have to make any decision at all because of DNA. House pushed his new lawyer, Stephen Kissinger, to order state-of-the-art DNA testing on fluids from the scene, something not available during his trial 20 years ago.

Persistence paid off. The semen discovered on her nightgown belonged to her husband, so there is no proof House raped Carolyn Muncey.

(on camera): What does that mean, then, for the prosecution's case?

STEPHEN KISSINGER, DEFENSE ATTORNEY: What it means is, they have no case. And what it means is that any case that they try to make at this point is simply absurd. I think at the very least, Mr. House deserves a new trial.

BROWN: When we come back, is DNA evidence enough to get Paul Gregory House a new trial? That is the question before the Supreme Court.

JOYCE HOUSE, PAUL'S MOTHER: He called me and said, mom, have you heard about DNA? And I said, no.



LIN: Good evening, I am Carol Lin. Happening right "Now in the News".

Tragedy on Lake George in Upstate New York after a tour boat capsizes. The county sheriff puts the death toll right now at 21. The Ethan Allen tour boat overturned apparently after being swamped by the wake from another boat.

An amateur videotape shows a suspected suicide bomber walking through a Bali restaurant wearing a backpack right before an explosion occurred. Blasts on the Indonesian resort island yesterday killed 19 people plus three suicide bombers.

And a disaster has been declared in northeast Kansas, where people have been stranded by rising water and flash floods. Heavy rain dumped about a foot of rain on the area overnight. At least one nursing home had to be evacuated.

And be sure to check out LARRY KING WEEKEND at 9:00. Former President Bill Clinton talks about helping hurricane victims.

And I'll be back at 10:00 Eastern for CNN SUNDAY NIGHT.

After the break, back to a special CNN PRESENTS about the new Supreme Court.



BROWN (on camera): Welcome back to CNN PRESENTS. Paul House, a convicted murderer, a sex offender, has been on Death Row in Tennessee since 1985. But new DNA evidence may establish his innocence if he can get a new trial. And that decision will soon rest with the new Supreme Court.

So here again is CNN's Randi Kaye.

JOYCE HOUSE, PAUL'S MOTHER: As soon as I heard the Supreme Court was going to hear it, I just said thank God. He's coming home now. And I truly believe that.

KAYE (voice-over): Joyce House began to get her hopes up years ago when her son called from Death Row with news of a new technology.

J. HOUSE: He called and he said, mom, have you heard about DNA? And I said, no. And he said, OK. Read about it because that's going to get me out of here. That will prove that I didn't do it.

KAYE: New state-of-the-art DNA testing did prove that he never raped Carolyn Muncey. The semen found on her nightgown belonged to her husband. But even with this new evidence, he remains on Death Row.

(on camera): If this same DNA technology had been around 20 years ago when Paul House was on trial, would he have been in prison sitting on Death Row?

PHILLIPS: In my opinion he would, yes.

KAYE (voice-over): District Attorney General Paul Phillips prosecuted House back then. He says even though DNA evidence shows House didn't rape Carolyn Muncey, other evidence proves he attempted to, like bruises on her thighs.

And because her death occurred during a sexual assault, Phillips says death is the proper punishment. During our interview on Death Row, House's frustration with the system was obvious.

P. HOUSE: I don't think it will make any difference because I am still here like I have been for the first decade, the second decade.

KAYE: House's most recent attempt at freedom failed when a sharply divided United States Court of Appeals for the Sixth Circuit denied his request by a vote of 8-7.

(on camera): Here on Death Row, the Supreme Court's decision could have a major impact. While the court won't decide Paul House's guilt or innocence, it will determine whether he gets another chance to prove his case.

According to the Innocence Project, there are more than 100 inmates hoping to get that chance through DNA. And for some, like House, the clock is ticking.

NINA MORRISON, INNOCENCE PROJECT: For Paul it is literally life and death. He will almost certainly be executed if the Supreme Court doesn't grant him release.

KAYE (voice-over): Nina Morrison is a lawyer with the Innocence Project. The project has helped free half of the 162 people exonerated based on post-conviction DNA testing.

MORRISON: A huge amount of new evidence has emerged that clearly proves Paul was wrongfully convicted.

KAYE: New evidence doesn't mean much to Matthew Muncey. He was just five when his mom was murdered. This is the first time he agreed to an interview.

(on camera): What do you think about Paul House being on death row?

MATTHEW MUNCEY, SON OF MURDER VICTIM: I wish they had dang killed him.

KAYE: You wish they had killed him?


KAYE: You don't think they have the wrong man sitting in prison?


KAYE: In January, both sides will have just 30 minutes to argue their case before the court. Thirty minutes that could erase the last 20 years of this man's life.

KISSINGER: The only justice in this case is Mr. House walking out of prison a free man.


BROWN: Back with Jeff Toobin. And this time, in this case, the DNA case, what's interesting to me about this is that the Rehnquist Court changed in some respects as it looked at death penalty cases. In the last years it was very hard on the Fifth Circuit, very hard on the Criminal Appeals Court in the State of Texas for not being rigorous enough.

Does that tell us anything about how it might view this DNA case.

TOOBIN: This is such a fascinating issue because it deals with a question you'd think would be settled but isn't, which is, is it unconstitutional to execute an innocent person? The Supreme Court has never explicitly said that. They've dealt with a lot of procedures about how trials can be, but if there is simply a chance that this guy is innocent, can the court sanction his execution?

If you look at the recent Rehnquist Court, they have been much more suspicious of executions than they were, say, in the '90s. So the Roberts Court, we'll see if they continue that sort of pro-defendant direction or pro-government. BROWN: And in the tea leaf reading of all of Judge Roberts, Chief Justice Roberts' writings, do we have any clue as to how he feels about A, this clock that sort of ticks down in death penalty cases -- when you can introduce new evidence, at what point, and how states have to respond to that?

TOOBIN: It's one area where Roberts personally has almost no experience. The D.C. Circuit, where he was a judge, they never deal with death penalty issues. He seems to be the kind of judge who will basically let states use their own procedure, and like Chief Justice Rehnquist let executions proceed.

But in recent years, when forced to deal with really uncomfortable issues like executing the retarded or executing juvenile offenders, the Rehnquist Court, although not Rehnquist himself, has said oh, that's too much, we can't do that.

BROWN: Jeffrey, thank you. A little more from Jeff in a moment.

Well, mix together gay rights, the military and law schools, throw in millions of dollars of tax money and you have our next U.S. Supreme Court case. An explanation right after the break.


UNIDENTIFIED MALE: Justice Thomas, who maybe prepares more for an argument than anybody else, doesn't ask any questions or almost never does. Justices Scalia and Souter and Ginsburg really are the most tenacious, where they will ask you question after question after question. And they'll drill down until they get a firm answer from you. And if you don't have the right answer or if your position is wrong, they will just force you to admit.

BROWN: It started with a law professor who said the Defense Department's policy of banning gays and lesbians from serving openly in the military was discrimination. Many law schools around the country agreed and banned military recruiters from their campuses. Congress shot back, passing a law that said no recruiter, no federal funding, simple as that.

That battle has now reached the U.S. Supreme Court, which has agreed to consider Rumsfeld versus Faire (ph). It is not only a case involving national defense and free speech, but also billions of dollars of federal spending.

So, here again, our legal analyst, Jeffrey Toobin.

TOOBIN (voice-over): Call it a clash of cultures. The gay community and issues of equal rights, equal opportunity, pitted against the American military with its mantra, don't ask don't tell -- meaning if you're out of the closet, you can't be in the military.

It's a battle being fought, of all places, inside the nation's law schools, a number of whom want to ban military recruiters from their campuses because of such discrimination. People should be judged by the content of their character and not judged on the color of their skin or their religion or their sexual orientation.

TOOBIN: Richard McEwan (ph) is gay. He went to New York University's law school. Back in the '70s, NYU told law firms they couldn't conduct job interviews on campus unless their doors were open to everyone. The law firms changed. Then NYU and other schools took on the military on gay rights. The military didn't budge. Instead Congress changed the law and said, no recruiters, no federal money.

RICHARD MCEWAN, NYU LAW SCHOOL GRADUATE: That's what I would call extortion.

TOOBIN: Not so for California rancher Richard Pombo, the congressman who helped write the law.

REP. RICHARD POMBO, (R) CA: I don't think you can have it both ways. I don't think you can take all the money but not allow the recruiters to come on campus.

TOOBIN: Sylvia Law is a professor of law at NYU and an architect of the anti-discrimination policy.

(on camera): Is this anti-military?

SYLVIA LAW, NYU LAW PROFESSOR: Completely not anti-military.

TOOBIN: Why not?

LAW: It's all about free expression. It's all about we have an expressive message, which is we don't discriminate.

TOOBIN (voice-over): In the mid '90s, Congress voted to cut off much of the federal aid to schools which barred military recruiters from campus.

(on camera): So it's your view that they're not being penalized for an opinion, they are being penalized for an action?

POMBO: Congress always uses the power of the purse to influence what people do and what their behaviors are. We tell states you don't get any highway money unless you adopt a seatbelt law or unless you adopt the alcohol standard that we want. And in this case, what we're saying is if you don't allow military recruiters on campus, then you don't qualify for federal money.

TOOBIN (voice-over): No question the Supreme Court has approved strings on federal funding in the past, but an appellate court has ruled this particular law goes too far.

LAW: What's wrong with that is the string it attaches is taking away First Amendment rights.

TOOBIN: The military gets 80 percent of its officers each year off the nation's college campuses, not West Point or Annapolis. But this case doesn't involve those fighting and dying on the front lines in Iraq. This is only about military lawyers. Officers like these in the Abu Ghraib court martial cases are recruited from the law schools for a price. The military will pay off student loans for many who sign up for a four-year hitch.

Pentagon official Bill Carr says military recruiters deserve and need access inside the law schools.

BILL CARR, DEPUTY UNDERSECRETARY OF DEFENSE: The military is a terrific employer and should have a chance, as with any other lawyer, to be treated as any other employer is.

LAW: The military is not asking to be treated equally. Every other employer understands that to take advantage of our career service, they have to abide by our rules, including the non- discrimination rule. The military has asked to be treated specially -- to be given all this help even though they don't abide by our core principles.

TOOBIN: Law schools started knuckling under, though, when the government threatened to chop off aid to other parts of the university, such as medical school.

(on camera): How much money is now at stake for NYU?

LAW: I understand it's $130 million and it's used for everything from astrophysics to zoology -- A to Z.

TOOBIN: Is that fair?

POMBO: Yeah. It gets their attention. If you take away $10 from them, they'll see we don't need that $10. If you take away tens of millions from them, all of the sudden, yeah, they pay attention to that.

TOOBIN (voice-over): Two sides, two opposite views of freedom of speech.

(on camera): One argument you hear from Congress Pombo is, fine. If you want to be idealistic and ban the military, just don't expect any money from Uncle Sam.

LAW: But it's a basic tenet of the First Amendment that you can't penalize "starry-eyed idealism."

TOOBIN (voice-over): Pombo's view? You can say whatever you want, but ...

POMBO: There's no guarantee in the Constitution that the taxpayer will subsidize that speech.

TOOBIN: As for Richard McEwan, the gay activist at NYU, he became a clerk for a federal judge. He's in Washington now with a federal regulatory agency.

MCEWAN: I'm now working for the federal government. They knew that when they hired me and it hasn't impeded in any way my career.

TOOBIN: He remains welcome almost anywhere as a government lawyer, except, of course, in the military.

BROWN: Back with Jeffrey Toobin. At its heart, is this a case about the degree to which the federal government exercises control over the money it chooses to spend?

TOOBIN: I think it is and I think it's one case where John Roberts' vote can be predicted with pretty good certainty because he even dealt with an issue like this when he was on the D.C. Circuit Court. And his entire judicial philosophy that we've been able to see suggests that he's going to rule for the government and not for the law schools in this case.

BROWN: Do you think that looking at this specific case, the other cases we've talked about today, or any one year will tell us a lot about what the Roberts Court is going to be?

TOOBIN: You know, he's going to be on the court for so long, and justices change that one year won't mean probably that much. David Souter's first year on the court he was actually quite conservative. He's actually turned out to be a moderate liberal justice.

Justices don't change a lot usually but they do change somewhat. So especially for a young man like Roberts is -- and by chief justice standards he's very young -- he's going to have a long way to develop.

BROWN: Jeffrey, thank you. Jeffrey Toobin.

When we come back, some final thoughts on the future of what is now the Roberts Court.


CHARLES ROTHFELD, ARGUED 20 CASES BEFORE U.S. SUPREME COURT: Each of the justices has a microphone in front of their place at the bench and when I said this case concerns the no interest rule, Justice Rehnquist, not yet the chief justice, leaned over to Justice O'Connor and said, the no interest rule means that I have no interest in this case.

And the microphone picked this up and it broadcast throughout the courtroom and there were these snickers in the back. And I thought briefly about trying to come back with some snappy comeback and I decided one-upping the justice was probably not a good idea.

BROWN: Just some final thoughts now with Jeffrey Toobin. Jeffrey, on the one hand we're dealing with vacancies on the court for the first time in a long time and that always leads to conversations about how the court has changed.

On another level I'm wondering if in fact we're looking at a very changed court, because it's not as if some great liberal justice stepped down -- William Douglas (ph). And a conservative president made a conservative appointment so when all is said and done do you think we're talking about an incremental change in the court?

TOOBIN: Certainly the replacement of Chief Justice Rehnquist by Chief Justice Roberts will not affect the results of the decisions very much. They are both conservative. How conservative we don't know, but that's not a very big change.

The reason so many people are concerned about the O'Connor seat is that really has the potential to change the court. Affirmative action survives in this country because Sandra Day O'Connor ruled in a 5-4 decision that it should decide.

The last partial birth abortion case in 2000, that law, a Nebraska law was struck down, that was a 5-4 decision with her in the majority. Her seat is the one that really could change the court.

BROWN: Because on some of the most difficult and contentious issues she was a legitimate swing vote. We really weren't so sure -- some of these people in truth I think we know exactly where they were going to be at the end of the day, but she would surprise.

TOOBIN: When you sat there in the Supreme Court courtroom you could often see lawyers looking at Sandra Day O'Connor because they knew her vote was going to decide the case.

You didn't have to worry about Scalia and Thomas in one end and Breyer and Ginsburg on the other. O'Connor was going to decide how the case was going to come out and everyone in the courtroom knew it.

BROWN: Jeffrey, thank you. It will be fascinating this year to watch all of this unfold.

And that's it for this edition of CNN PRESENTS. I'm Aaron Brown. Thanks for joining us and we'll see you next week.