Wednesday Writs: Actual Innocence In Herrera v Collins

The Innocence Museum, Istanbul, Turkey. Photo by Svklimkin, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

WW1: Appeals, overturned verdicts, wrongful convictions, mistrials, habeas corpus, technicalities… Convictions are reversed all the time in our system. It’s supposed to work that way. Our standard of proof is supposed to be stringent and anything less than that should fall short. Sometimes, it seems terrible criminals are released on procedural flaws (Hi, Mr. Cosby) or the condemned get some sort of reprieve and everyone is up in arms.

Sometimes just the opposite occurs. Sometimes people with strong appeals, who may actually be innocent, find themselves at the end of the road with all avenues of relief closed off. Consider death row inmates. The passage of time can shut down the consideration of a legitimate claim, and the result is their death. It’s a stomach-churning thought. The argument is that without these limits a person can keep their case in the system forever — or in extreme cases, stave off their execution dates indefinitely.

I’m not a fan of the death penalty for several reasons, so I find that last concern unconvincing. There are most certainly factually innocent people on death row, and even more serving life in prison without the possibility of parole. Imagine you are one of these people, and years after your conviction new technology develops, such as a DNA technique, which could prove your factual innocence. Now, imagine being told your appeal won’t be considered, because too many years have passed since you were convicted. It’s not your fault, but that doesn’t matter.

The Supreme Court has grappled with post-conviction claims of actual innocence several times. Recent jurisprudence begins in 1993 in the case of Herrera v. Collins, our case of the week. Leonel Herrera was convicted of murdering David Rucker and Enrique Carrisalez, both police officers, in Texas in 1981. Rucker was found dead on the side of the road at around the same time Carrisalez pulled over a speeding car nearby. The driver of the car shot him. Carrisalez pointed out Herrera in a photo lineup before he passed away; Herrera was also identified by a civilian passenger in Carrisalez’s vehicle who witnessed the murder. The license plate number called in by Carrisalez prior to his death was registered to Herrera’s girlfriend, a car he was known to drive.

When Herrera was arrested, he had the keys to his car in his pocket. His blue jeans had blood on them that was the same type as Rucker’s (a different type than Herrera’s blood), as did the vehicle. He also had a letter in his pocket which was an apparent confession¹:

I am terribly sorry for those [to whom] I have brought grief … What happened to Rucker was for a certain reason … [H]e violated some of [the] laws [of my drug business] and suffered the penalty, like the one you have for me when the time comes …. The other officer [Carrisalez] … had nothing] to do [with] this. He was out to do what he had to do, protect, but that’s life …. [i]f this is read word for word over the media, I will turn myself in…

With this damning evidence, prosecutors easily obtained a conviction on the Carrisalez murder and Herrera was sentenced to death. He later pleaded guilty to Rucker’s murder, as well, and was suspected in yet another murder of a police officer from 1979.

Several post-conviction appeals and petitions, challenging the identifications by Carrisalez and the passenger among other things. Each of these was denied, including a federal habeas corpus petition, which was denied cert by the Supreme Court.

Herrera’s second habeas petition raised as an issue his “actual innocence”, based on newly discovered evidence. The evidence consisted of two affidavits: one from a lawyer who had represented Herrera’s late brother, Raul, and one from Raul’s former cellmate. Both affidavits were dated in December 1990 and claimed that Raul confessed to them that he, not Leonel, had committed the murders of Rucker and Carrisalez. In addition, the petition included two other affidavits, one from Raul’s son and another from Herrera’s friend. Raul’s son claimed to be present at the murders and witnessing Raul kill Rucker and Carrisalez. The family friend claimed Raul confessed to him in 1983. Herrera claimed prosecutors were aware of the affidavits and failed to produce them, in violation of Brady v. Maryland.

The Texas District Court, and the Texas Court of Criminal Appeals both denied the petition, based on the strength of evidence presented at trial. Herrera next filed another federal habeas, which would become the subject of the opinion we are discussing today. The federal District Court dismissed most of his claims as lacking evidentiary support, but granted a stay of execution to allow Herrera to proceed on his “actual innocence” claim in state court. After reconsideration, the Court also allowed his Brady claim to proceed.

The State of Texas appealed, and the Fifth Circuit Court of Appeals lifted the stay of execution. The Fifth Circuit agreed with the lower court’s initial opinion that there was no legitimate Brady violation claim. The Court then held that without an “accompanying constitutional violation,” such as the Brady claim, the issue of actual innocence could not be considered.

To repeat that holding, so that you have a minute to absorb it: if there is no constitutional error at trial, then a claim of actual innocence will not be considered, even with new evidence.

This is the holding that made its way through the doors of the Supreme Court. Herrera asserted that execution of an innocent person violates the 8th Amendment. The majority opinion was written by Chief Justice Rehnquist, joined by all but Justices Blackmun, Stevens, and Souter. The Court conceded that the idea that it was a constitutional violation to execute an innocent person “has an elemental appeal”. However, the Court found that as long as the person has been found guilty beyond a reasonable doubt at a fair trial and sentenced within the constraints of the applicable law, the sentence is constitutional.

The Court pointed out that a claim of new evidence must be brought within 3o days after sentencing. Herrera argued that he did not know of the existence of the evidence until the better part of a decade later (indeed, he could not have; the alleged confessions by Raul occurred several years after Leonel’s conviction, and the affidavits were not created until after 1990.) The Court did not find this to be a compelling reason to grant relief; just because new evidence might be presented at a new trial does not mean the result would be different. The Court laid out its fears that to allow claims of actual innocence, without a constitutional violation claim, would send the justice system into chaos and put appeals courts in a position of fact-finding, which is not its purview.

Petitioner in this case is simply not entitled to habeas relief… For he does not seek excusal of a procedural error so that he may bring an independent constitutional claim challenging his conviction or sentence, but rather argues that he is entitled to habeas relief because newly discovered evidence shows that his conviction is factually incorrect.

Lest you be concerned that the Court’s decision left a person in Herrera’s shoes without recourse, take heart. The Court suggests one could apply for clemency.

Herrera’s case is, admittedly, not the best for challenging the difficulty of raising actual innocence. The evidence against him is very strong, especially in comparison to the newly proffered evidence which consisted mostly of hearsay (though of the potentially admissible variety). And the Herrera case predates the forensic revolution that is DNA, when new evidence can be nearly dispositive of guilt, so the question of actual innocence was more speculative than it might be in some cases now.

Justice O’Connor added a concurrence, joined by Justice Kennedy, in which she states that she cannot accept the premise that the execution of an innocent person could be constitutional. “Dispositive to this case, however, is an equally fundamental fact: Petitioner is not innocent, in any sense of the word,” writes O’Connor. He is not legally innocent, she explains, because he has been found guilty after a fair trial, and neither is he factually innocent, based upon the record which “overwhelmingly demonstrates” his guilt. Justice O’Connor deems the new evidence “bereft of credibility”.

O’Connor did not interpret the majority opinion to condone the execution of the actually innocent:

Nowhere does the Court state that the Constitution permits the execution of an actually innocent person. Instead, the Court assumes for the sake of argument that a truly persuasive demonstration of actual innocence would render any such execution unconstitutional, and that federal habeas relief would be warranted if no state avenue were open to process the claim.

A second concurrence was written by Justice Scalia, joined by Justice Thomas. Scalia wrote for the opposite reason of Justice O’Connor: to express his opinion that executing an actually innocent man is not unconstitutional at all:

There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

Thought out to its logical extension, Scalia is saying that even if a person had irrefutable evidence of his innocence – be it DNA or even a video of someone else committing a crime – a convicted person has no right to have that evidence considered. Scalia concedes that this is a hard pill to swallow, but shrugs it off as an example of our constitution’s imperfections.²

The dissent by Justice Blackmun, criticized sharply by Scalia,³ begins by declaring ‘[N]othing could be more contrary to contemporary standards of decency… or more shocking to the conscience… than to execute a person who is actually innocent.”(Citations omitted.) Blackmun would have remanded the case to the District Court for a hearing on Herrera’s claims to determine what, if any, relief was warranted.

He explains his rationale for finding the death penalty a violation of the 8th amendment prohibition against “cruel and unusual punishment” for an innocent person, an analysis the majority dismissed because Herrera is challenging his guilt, not his sentence. Justice Blackmun explains that by challenging guilt, Herrera challenges the state’s right to punish him, triggering 8th amendment considerations.

Actual innocence has been debated by the Court several times since 1993, but there remains no constitutional right to raise a free-standing (meaning not in conjunction with other constitutional error) post-conviction claim of actual innocence based on new evidence. States have enacted laws permitting certain claims, however, when the basis is newly discovered DNA evidence. The breadth and strength of these laws vary by state.

WW 2: A recent case germane to our case of the week came out of Missouri this week, where a request for a hearing on a convicted murderer’s innocence comes from an unlikely source: the Jackson County Prosecutor Jean Peters Baker. Baker says Kevin Strickland, imprisoned since 1978 for his alleged role in a home invasion, is innocent. Until recently, the prosecutor had no right to request the reversal of a conviction, but a new Missouri law has changed that. A hearing will take place this week, but the 62 year old Strickland remains in prison for now. AG Eric Schmidt has tried to intervene, insisting Strickland is guilty, but a judge this week declined to permit his participation.

WW 3: There is likely to be new developments by the time this edition of Writs is published, but as of 8:45 AM on September 1, 2021, the State of Texas has enacted a law banning pretty much all abortions – and allowing any random person to sue the woman receiving one and anyone who helps her for $10,000(standing? what’s standing?) – and SCOTUS has so far not intervened. Justice Alito, assigned to consider the acceptance of appeals and emergency petitions for Texas, asked for briefing on a request for a stay of the law, but did not act prior to the law taking effect at 12:01 a.m. today.

WW 4: A family court judge in Illinois revoked a mother’s custody of her young child last week because she had not been vaccinated for Covid, even though no one asked him to. When I read the headline, I would have bet there was more to it than that, but I would have been wrong. The outcry by the public apparently prompted the judge to change course.

WW 5: Oklahoma continues to stick its fingers in its ears and pretend McGirt v Oklahoma didn’t happen. The state’s Supreme Court held this week that the McGirt case, in which SCOTUS ruled that state courts had no jurisdiction in large swaths of the state because the land still belongs to Native American tribes, did not apply retroactively, and reinstated convictions that had been reversed because of McGirt. All four were murder trials in which the defendants were sentenced to death, and federal prosecutors have already picked up the cases and filed charges.

1. This is a truncated version. The full version is contained within the opinion and leaves no room for doubt of its meaning.
2. Also writing separately was Justice White, who opined that, to get relief, a person in Herrera’s position must “show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, ‘no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.'”
3. Wrote Scalia: “[I]f the system that has been in place for 200 years (and remains widely approved) “shock” the dissenters’ consciences, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of “conscience shocking” as a legal test.