Turning a blind eye to innocence: the legacy of Herrera v. Collins.
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"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)I. INTRODUCTION 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. II. HERRERA V. COLLINS 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 innocent of the crime for which he was convicted." (18) A. The Court Rejects Herrera's Eighth and Fourteenth Amendment Arguments In a five to four decision, the Supreme Court rejected Herrera's petition for habeas corpus relief, declaring, "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." (19) In particular, the Court relied on a similar statement by Chief Justice Warren in Townsend v. Sain. (20) Herrera offered no such independent constitutional violation, claiming instead that the execution of an innocent person was in and of itself a constitutional violation. (21) The Supreme Court disagreed. "A claim of 'actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." (22) Despite the Court's ruling that bare-innocence claims cannot be considered for relief in federal courts, the Court was adamant that its "habeas jurisprudence [does not cast] a blind eye toward innocence." (23) The Court then added that "[p]etitioner is simply not entitled to habeas relief." (24) In dissent, Justice Blackmun dismissed the majority's reliance on Townsend for the principle that claims of actual innocence have never been held to create grounds for federal habeas relief, calling the case "distant dictum," noting that Townsend did not address the issue before the Court in Herrera. (25) Blackmun focused on the irony of the Court's holding in Herrera given its prior case law: Having adopted an "actual-innocence" requirement for review of abusive, successive, or defaulted claims, [in Kuhlman v. Wilson, (26) Murray v. Carrier, (27) Smith v. Murray, (28) and McClesky v. Zant (29)] ... the majority would now take the position that "a claim of 'actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits."... The only principle that would appear to reconcile these two positions is the principle that habeas relief should be denied whenever possible. (30) Justice Blackmun's statement is one of several prophetic insights in his eloquent dissent. For Herrera's legacy is, as Justice Blackmun intuited, the unjust denial of federal habeas relief to petitioners who are actually innocent. B. The Majority Construes Herrera's Due Process Claim as "Procedural" Rather than "Substantive" After denying Herrera's petition on the grounds that the petition exceeded the scope of federal habeas review, the majority turned to Herrera's argument that the execution of an innocent person violates the Due Process Clause of the Fourteenth Amendment. The Court analyzed Herrera's claim as a "procedural" rather than a "substantive" due process violation because Herrera did "not come before this Court as an innocent man, but rather as one who has been convicted by due process of law of two capital murders." (31) Therefore, the criminal process afforded Herrera would only be constitutionally insufficient where it "'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" (32) The majority's logic is unabashedly circular: even if a prisoner's compelling exculpatory evidence could not have been offered in his original trial, that evidence cannot now be considered because the prisoner has already been convicted, even though the prisoner is claiming the evidence that convicted him was materially defective in the original trial. Explaining that "[h]istorical practice is probative of whether a procedural rule can be characterized as fundamental," the Court went on to examine federal and state law regulating new trials and the common law tradition of affording new trials. (33) Based on this review, the Court concluded that, "we cannot say that Texas' refusal to entertain petitioner's newly discovered evidence ... transgresses a principle of fundamental fairness 'rooted in the traditions and conscience of our people.'" (34) Justice Blackmun blasted the majority's rationale: "Nothing could be more contrary to contemporary standards of decency ... or more shocking to the conscience ... than to execute a person who is actually innocent." (35) Blackmun also argued that if the Eighth Amendment is violated when the death penalty is imposed to punish rape or the participation in a robbery involving a murder, "then it plainly is violative of the Eighth Amendment to execute a person who is actually innocent. Executing an innocent person epitomizes 'the purposeless and needless imposition of pain and suffering.'" (36) Blackmun also wrote that the "[e]xecution of the innocent is equally offensive to the Due Process Clause of the Fourteenth Amendment." (37) "The lethal injection that petitioner...
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