High Court Asked to Allow Execution Despite Evidence : Death penalty: Texas seeks to carry out the sentence even if new information shows inmate may be innocent.

Texas state prosecutors, joined by lawyers for the Bush Administration, told the Supreme Court on Wednesday that the Constitution does not bar the execution of a Death Row inmate, despite new evidence showing that he may be innocent of the crime.

During the hourlong court session, most of the justices indicated that they agree with that argument, but several sounded troubled by it.

“Let’s say you have a videotape which conclusively shows the suspect is innocent,” said Justice Anthony M. Kennedy, addressing the state’s attorney. “Is it a federal constitutional violation to execute that person?”

“No. It would not be violative of the Constitution,” replied Texas Assistant Atty. Gen. Margaret P. Griffey.

But “assume a mistake was made,” said Justice John Paul Stevens, and an innocent person is about to die for a crime he did not commit. Would not a federal judge have the power to intervene and halt the execution?

“No,” the prosecutor replied, “so long as the trial procedures (years before) were constitutional.”

The remarkable exchanges came Tuesday in the most important capital punishment case (Leonel Herrera vs. Texas, 91-7328) before the high court.

It tests whether the justices are more concerned with the slim chance that an innocent man could be executed or the likelihood that federal judges would face a flood of last-minute appeals from convicted murderers if Herrera prevails.

In recent years, the court led by Chief Justice William H. Rehnquist has limited the grounds on which Death Row inmates can file appeals in federal court. But the justices have always asserted, almost in passing, that they would take a different view if there was a possibility that the defendant was innocent.

Herrera’s case raises just that issue.

Eleven years ago, Herrera, a South Texas drug runner, was accused of murdering two police officers. He was tried and convicted of one killing and pleaded guilty to the other. He was sentenced to die.

But last February, just days before his scheduled execution, new witnesses came forward to say that his brother Raul, who died in 1984, actually committed the murders.

A nephew, Raul Jr., filed an affidavit stating that he saw his father, not his uncle, shoot the officers. Raul Herrera’s lawyer, a former judge, said Raul Herrera told him that he had committed the murders.

State prosecutors, however, believed that the new evidence was fabricated. Texas courts refused to order a new hearing, citing a state law that requires claims of new evidence to be made within 30 days of a trial. And Texas Gov. Ann Richards did not grant clemency.

But based on the new evidence, U.S. District Judge Ricardo Hinojosa stopped the execution and called for a new hearing to re-examine the facts of the case.

State prosecutors then won a ruling from the U.S. 5th Circuit Court of Appeals reversing that decision and stating that new evidence of innocence is not reason enough to stop an execution.

“The ‘actual innocence’ claim” is not by itself sufficient to warrant a federal judicial review of the case, the appeals court said. “We therefore find no legal justification to stay the execution.”

After a series of middle-of-the-night appeals to the Supreme Court, the minimum four justices voted to hear Herrera’s appeal, and his execution was stopped by two Texas state judges.

Bush Administration lawyers joined the case in support of Texas prosecutors. The Constitution “does not guarantee a defendant the right to appeal a trial court judgment of conviction,” even one that may seem wrong today, the Administration told the justices.

In appealing for Herrera on Tuesday, former American Bar Assn. President Talbot D’Alemberte argued that the court should be most concerned with the possibility of turning a blind eye to an innocent man.

“Innocence is the paramount value” protected by the Constitution, said D’Alemberte, a Tallahassee, Fla., lawyer. If an inmate has strong, new evidence showing his innocence, a federal judge should be permitted to re-examine the facts, he said.

But several justices angrily disputed that view.

“One has to consider how much damage we do to the criminal justice system,” Justice Antonin Scalia snapped. “The burden this would put on a system of justice would be enormous.”

Rehnquist noted that federal judges are usually called upon to consider whether procedural mistakes were made during an arrest, trial or sentencing hearing, not to decide whether the defendant was guilty.

“You are now asking for something quite different,” the chief justice told D’Alemberte.

Justices Sandra Day O’Connor, David H. Souter, Byron R. White and Kennedy joined in disputing whether federal courts should re-examine evidence years after a defendant has been tried and convicted.

But D’Alemberte insisted that federal courts should provide a “safety value” for ensuring that an innocent person is not put to death. “Many times we don’t learn until many years later of (a defendant’s) actual innocence,” he said.

A ruling in the case is due in several months.