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Supreme Court Limits Death-Penalty Appeals

The justices refuse to allow a lower court to hear evidence that an inmate might be on Texas's death row for a crime committed by his brother

EIGHT years after Leonel Torres Herrera was convicted of killing two Texas police officers one night in 1981, new evidence surfaced that strongly suggested he was the wrong man.

In strictly legal terms, the United States Supreme Court's Jan. 25 decision to uphold his death sentence was no surprise. His case did not raise the typical constitutional complaints over trial procedure or rules of evidence.

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It raised a starker question: Is it constitutional to execute an innocent person?

The court's answer was mixed, but its judgment on Mr. Herrera was clear. The Supreme Court will not block Herrera's execution, and his other avenues of appeal are now exhausted, barring an act of clemency from the Texas governor.

The Herrera decision was 1 of 3 the court made on Jan. 25 in capital cases, each a further step in its long march toward swifter and more certain death penalties. The court has steadily reduced the opportunities to bring years of death-sentence appeals through the federal court system.

At least 6 of the 9 justices signed opinions on Jan. 25 asserting that executing Herrera would indeed be unconstitutional if he were persuasively innocent.

But only three of them - Justices Harry Blackmun,David Souter, and John Paul Stevens - thought the new evidence should be heard and evaluated in a district court. Justice Blackmun wrote in his strong dissent: "The execution of a person who can show that he is innocent comes perilously close to murder."

The other six justices averred that the evidence was not credible enough on balance to force a new trial. Justice Sandra Day O'Connor wrote most plainly: "Petitioner is not innocent, in any sense of the word."

No appeals court ever found fault with the trial that convicted Herrera. He was identified by two eyewitnesses at one murder. The car driven by the killer was registered to Herrera's girlfriend, and the keys were found in his pocket. Blood splatters of one victim's type were found on the car, Herrera's blue jeans, and his wallet. Herrera's Social Security card was found at the roadside site of the first murder.

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When he was arrested, police found a letter in Herrera's pocket in which he strongly implied he had committed the first murder. After the first conviction, he pleaded guilty to the second.

But 10 years and many failed appeals later, Herrera's attorneys brought forward new evidence suggesting the murderer was Herrera's brother, Raul, who died in prison in 1984. Raul Herrera's former attorney and a former cellmate each signed affidavits vouching that Raul had told them that he had killed the police officers. In addition, Raul's son claimed to have witnessed his father committing the crimes.

The problem was that Texas law allows only 30 days after trial to introduce new evidence. The majority opinion in the Supreme Court decision upheld that limit, rebutting Herrera's claim that he was denied due process. It also held that in a case like this, a pardon from the Texas governor is the most appropriate option for Herrera.

Further, the court did not buy the credibility of the new evidence. One factor arousing suspicion: Raul can neither defend himself against the allegations nor be punished for the crime.

In another Texas death-penalty decision Jan. 25, the court ruled that the death sentence on Gary Graham could stand even though a now-defunct law had limited jury consideration of his youth and troubled family background. Although such limits probably no longer pass constitutional muster, the court ruled that Mr. Graham's attorneys did not raise the issue early enough in the appeals process.

In still another death-penalty decision, the court ruled that an Arkansas murderer could not have his death sentence reversed by arguing that he had inadequate legal counsel at his sentencing trial.

In interviews, lawyers, academics, and advocates on both sides of the death-penalty issue describe a clear effort by the high court to cut off an endless stream of federal appeals by those on death row.

The Supreme Court tries to weed out appeals by being a stickler for rules. Last year, for instance, the court turned away an appeal by a Virginia murderer because his attorney had missed a state filing deadline by one day.

"The court is not troubled by the death penalty," says law professor and death-penalty expert Victor Streib of Cleveland State University.

Questions of guilt or innocence rarely arise in capital cases, although a 1987 study found 23 cases this century of executions of the clearly innocent and another 22 close-call reprieves. Between 80 and 90 percent of death sentences are later reversed, Mr. Streib says.

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