Dead Wrong

“This is the first time in our history, so far as I know, that it has ever happened that the Supreme Court has made such a ruling and the state has gone forward to prosecute the guy anyways,” U.S. Circuit Judge Gilbert S. Merritt tells the Scene. The Nashville-based judge sits on the 6th U.S. Circuit Court of Appeals, which has reviewed the convoluted case several times over the years, as recently as last week. “Why, after all this evidence has poured in that House is innocent of the crime, does the state continue to so zealously defend the situation? The reason is because state prosecutors typically never admit error.”

Frustrated by this “sad situation,” Judge Merritt says, “I do not think the state should be able to retry this guy who has been on death row for 22 years and has multiple sclerosis and probably not too many years left to live.”

For three decades, Assistant District Attorney Paul Phillips has had the final say on who should and should not be tried in the five rural counties he oversees. The entrenched prosecutor is a native of East Tennessee, and comes from a family with an impressive legal pedigree—his brother is U.S. District Judge Thomas W. Phillips from the Eastern District of Tennessee.

Over the last six months, Phillips has sat beside lawyers with the state attorney general’s office as they argued that House does not deserve a new trial. Typically decked out in dark three-piece suits, the husky, white-haired prosecutor has appeared stern and unwavering during most proceedings, but on a few occasions has become visibly flustered by remarks from House’s lawyer Stephen Kissinger. At one point, when Kissinger argued that Phillips had previously announced he intended to seek the death penalty again, the prosecutor jumped from his seat, holding his finger in the air and shouting, “I did not. I did not say that.”

But the transcript from the hearing on Feb. 28, 2008, doesn’t lie. Phillips most certainly did make that statement: “We will retry Mr. House.… I would expect that we would seek capital punishment.”

Although the prosecutor later stated in court that he would not seek the death penalty because of House’s chronic illness, some have speculated the decision instead stems from having a weak case, suggesting that the state might even offer a plea deal.

Having personally prosecuted hundreds upon hundreds of criminal cases, Phillips, a Vanderbilt Law School graduate, has established a reputation as an aggressive lawyer with a knack for persuading juries. Colleagues say he’s a tough yet fair-minded attorney, and even the defense lawyers he opposes in the courtroom have described him as reasonable. Which is why his decision to retry Paul House is so befuddling.

“I’m puzzled at why Paul Phillips is proceeding in this manner,” says Randall Reagan, a Knoxville-based defense lawyer. Having known Phillips for at least 30 years, Reagan calls him a hard-nosed prosecutor, but one who has always been willing to listen.

So what explains Phillips’ deaf ear when the highest court in the land has essentially telegraphed the message to back off?

“Phillips personally prosecuted this case back then, so I’m sure he’s heavily invested in it emotionally, intellectually, professionally,” Reagan says. “And sometimes prosecutors hate to admit mistakes.”

If Phillips simply conceded that House might have spent half his life on death row for a crime he didn’t commit, it would trigger renewed attacks on Tennessee’s already controversial capital justice system. In fact, if some death penalty advocates had their way, House would have been executed years ago. It would also be demoralizing for Phillips (or any prosecutor) to admit that one of the biggest cases he ever tried—one that had a tiny East Tennessee town buzzing over 20 years ago—turned out to be built on a fundamental misreading of the evidence.