Court to Decide If New Data Can Stay Executions

After an extraordinary series of middle-of-the-night phone calls, the Supreme Court at the insistence of four justices agreed early last Wednesday to rule on whether the Constitution forbids the execution of a convicted murderer in Texas who may be innocent.

But, at the same time, the high court turned down an appeal for a stay of execution of the man, whose lawyers say can be proved not guilty by new evidence. And, had it not been for the intervention of two state judges, the execution would have been carried out within a short time.

The blunt legal question came before the justices in the hours before Leonel E. Herrera, a Texas Death Row inmate, was scheduled to die for the murder of a police officer in 1981. Little notice was taken Wednesday of the justices’ actions outside of Texas.

In recent weeks, Herrera’s lawyers had compiled strong evidence that his brother, Raul, actually committed the murder. The convicted man’s nephew, Raul Herrera Jr., who was 9 at the time of the crime, says in a court affidavit that he saw his father, not his uncle Leonel, kill the policeman.

But Texas state attorneys described this new evidence as a “ploy” to stop the execution. They insisted that Herrera should have died by lethal injection at dawn last Wednesday.

On Tuesday afternoon, the U.S. 5th Circuit Court of Appeals had lifted a stay of execution granted earlier by a federal judge. Without ruling on the validity of Herrera’s new evidence, the three-judge panel said that it was too late to raise such a claim.

“Herrera’s claim of ‘actual innocence’ presents no substantial claim for relief” under federal law, the appeals court ruled.

When Herrera’s lawyers filed a midnight appeal at the Supreme Court, they found the justices split, 5 to 4, on the issue. Because the high court decides issues of law, not factual disputes, Chief Justice William H. Rehnquist has insisted that the court avoid second-guessing decisions made by juries and state judges. Joined by Justices Antonin Scalia, Byron R. White, Anthony M. Kennedy and Clarence Thomas, Rehnquist refused to block Herrera’s execution.

Under the high court rules, it takes five justices to grant a stay. However, it takes only four justices to grant a “petition for certiorari ,” whereby a case is fully argued and decided by the Supreme Court.

Four justices--Henry A. Blackmun, John Paul Stevens, Sandra Day O’Connor and David H. Souter--said that Herrera’s execution should be blocked. They also noted that his case raised an important legal issue that had not been decided. Does the Constitution require that 11th-hour evidence of “actual innocence” be fully considered before an execution proceeds?

When the court clerk informed Herrera’s lawyers of the justices’ split decision, they quickly typed up a “petition for certiorari “ and faxed it back to the court about 4 a.m. Wednesday.

The court then issued an unusual order. Herrera’s petition was granted a full review by the court. But the five justices reiterated that they would not block Herrera’s execution so that he would be alive when his case is heard in the fall.

About 4:30 a.m., Robert McGlasson, Herrera’s attorney in Austin, Tex., was told that state prison officials wanted to proceed with Herrera’s execution, despite the high court’s willingness to hear his legal case. But two judges on the state court of criminal appeals, when told of the Supreme Court’s action, agreed to issue an order stopping the execution.

Supreme Court spokeswoman Kathleen Arberg confirmed the unusual sequence of events. When the justices were called at home, they continued to split, 5 to 4, on the issues raised by Herrera, she said.

Quite often, the justices are called at home to vote on emergency orders, including requests to block an execution. But rarely does the court officially grant a full review of a case in other than its regular conference session on Friday morning.

Herrera’s lawyers, who recounted their all-night struggle to stop their client’s execution, said that they were shocked and dismayed by actions of the Texas state attorneys and the federal judges involved.

“We were embroiled in a . . . fiasco of litigation unparalleled in our combined experience,” said McGlasson of the Texas Resource Center, which represents murder defendants. “In the view of these life-tenured federal judges, innocence was, the state had argued, irrelevant.”

Attorneys for Texas could not be reached for comment late Friday or Saturday but in court papers, they did not concede that Leonel Herrera was innocent. Indeed, they argued that the evidence against him was overwhelming. He had been seen by eyewitnesses at the time of the murder and had been identified as the killer by the victim before he died, Joan C. Barton, an assistant state attorney general, told the appeals court last Monday.

But she also argued that it was too late for the federal courts to take a new look at the evidence in the case.

U.S. District Judge Ricardo H. Hinojosa of McAllen, Tex., had granted Herrera a stay of execution so that the new evidence could be fully considered.

But Barton persuaded the 5th Circuit Court to lift that order. “The rule is well-established that claims of newly discovered evidence” are not subject to federal review at this late stage in the process, the Texas state lawyers argued, relying on recent Supreme Court rulings narrowing the basis for federal judges to get involved in state death penalty cases.

In one of several cases on the issue, the high court ruled last year that state Death Row inmates should have only one chance to appeal their convictions in the federal court system. Herrera’s case already had been to the Supreme Court once before on a legal issue.

The 5th Circuit Court agreed with the Texas officials Tuesday afternoon, setting the stage for the middle-of-the-night drama.