Turning a blind eye to innocence: the legacy of Herrera v. Collins.

American Criminal Law ReviewVol. 42 Nbr. 1, January 2005

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Turning a blind eye to innocence: the legacy of Herrera v. Collins.

"Herrera ranks as one of those infamous Supreme Court opinions, like Lochner and Plessy, that is utterly repugnant to any basic sense of fairness." (1)


In 1993, the U.S. Supreme Court ruled in Herrera v. Collins that a prisoner facing execution with newly discovered evidence of innocence could not obtain review from federal courts without an additional underlying constitutional violation. (2) Moreover, the Herrera Court found that executing such a prisoner who can show he is probably innocent is constitutional. (3) Since Herrera, seventy wrongly convicted prisoners have been released from death row and the amount of public information regarding the execution of innocent people has exploded. (4) As one commentator noted,

We now know that we convict innocent people of crimes, including murder, and we know that we sometimes sentence innocent people to death. The American public now believes that we execute innocent people, and the unease about the specter of this happening has reached the chambers of the Supreme Court, including those of Justice O'Connor. (5) Despite the growing concern of the public and the courts, there has been no effort to evaluate whether Herrera added to the ranks of the wrongfully executed by denying relief to petitioners asserting "bare-innocence" claims based on newly discovered evidence. A bare-innocence claim is premised on an assertion of actual, as opposed to legal, innocence. In the criminal context, legal innocence means that not enough proof of guilt was introduced at trial to establish that a defendant is guilty beyond a reasonable doubt. In contrast, actual innocence means simply that the defendant did not commit the offense in question. A defendant who has, in fact, committed murder may be found legally innocent, i.e. there is not enough evidence to convict him, but he is not actually innocent. A bare-innocence claim occurs when a petitioner, like Leon Torres Herrera, seeks federal habeas relief by simply asserting that he is actually innocent of the crime for which he has been convicted based on evidence that was discovered after his trial, without attaching his claim to a constitutional violation that occurred at that trial. (6)

This Note posits that Herrera v. Collins deserves a place next to the Supreme Court's most infamous cases, Plessy v. Ferguson (7) and Korematsu v. United States. (8) The Herrera Court turned a blind eye to the execution of innocent people by refusing to consider an innocent death row petitioner's last plea for justice, a decision that in all likelihood resulted in the loss of an innocent life. Part II of this Note will summarize and examine the legal rationale underlying Herrera v. Collins itself. Part III will turn to lower federal courts' application of Herrera to bare-innocence claims. Part IV will critique the Court's reliance in Herrera on executive clemency as a "fail safe" mechanism to prevent innocent prisoners from being executed. Finally, Part V will explore the ramifications of Herrera on the execution of innocent people.


In January 1982, Leon Torres Herrera was convicted under controversial circumstances of the murder of two Texas police officers and was sentenced to death. (9) Herrera appealed the verdict and began to navigate the long and complicated maze of possible state and federal avenues of relief. (10) In 1992, the U.S. Supreme Court granted Herrera's petition for certiorari based on Herrera's claim that newly discovered evidence proved he was actually innocent of the murders of the two police officers notwithstanding the Texas trial court's verdict. (11) Texas courts refused to hear Herrera's appeal, as under state law at the time, a motion for a new trial based on new evidence could only be brought within thirty days of the trial verdict. (12) Based on the Supreme Court's decision to grant Herrera's petition, the Texas Court of Criminal Appeals approved a stay just hours before Herrera's scheduled execution. (13)

Herrera's new evidence came in the form of affidavits which Herrera offered as proof that his deceased brother Raul Herrera, Sr. was the perpetrator of the crimes for which he was convicted. (14) Leon Herrera offered four affidavits from four separate affiants, three of whom claimed that Raul, Sr. had confessed to them that Raul, Sr. and not Leon, murdered the two police officers. (15) The three affiants who swore that Raul, Sr. confessed were: a former cellmate of Raul, Sr.; a high school classmate of the Herrera brothers; and Hector Villareal, a former state court judge and Raul, Sr.'s attorney. (16) The other affiant, Raul, Sr.'s son, Raul, Jr. swore that he witnessed his father murder the police officers and that Leon Herrera was not present at the shootings. (17) Based on the affidavits, Herrera claimed that he was innocent, and asserted that "the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is inn...

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