Best Answer

Herrera v. Collins, 506 US 390 (1993)

The question represents a misinterpretation of the Supreme Court's decision. See Related Links for another question about the Court's decision in Herrera, and for the most recent Supreme Court order, In re Troy Anthony Davis, No 08-1443, (August 17, 2009), in which a death-row petitioner was granted a writ of habeas corpus for an evidentiary hearing on the grounds of "actual innocence" based on new evidence. Brief update at the bottom of this page.


Around 11:00 pm on September 29, 1981, Officer David Rucker apparently stopped Leonel Herrera's car on the highway between Brownsville and Los Fresnos, Texas. A passing motorist found Rucker dead beside his patrol car, with a single bullet hole in his head.

Shortly after the killing, a Highway Patrol Officer, Enrique Carrisalez, and his partner, Enrique Hernandez, saw a car speeding away from the area of the crime scene, turned their car around, and gave pursuit. The driver pulled over. Officer Carrisalez approached the car with his flashlight shining on the driver, while his partner watched from the car. Carrisalez and Herrera exchanged words (which the other officer could not understand), then Herrera opened his car door, stepped out, and shot Carrisalez in the chest. The driver sped off. Carrisalez died nine days later.

Herrera was arrested a few days later and was later charged with the capital murder of both Rucker and Carrisalez. The evidence against Herrera was as follows:

  1. Officer Hernandez, Carrisalez's partner and a witness to the second shooting, identified Herrera.
  2. Officer Carrisalez, before he died, also identified Herrera from a photograph and said he was the shooter.
  3. Officer Hernandez identified the defendant's car.
  4. The license number taken at the scene of Carrisalez's murder was registered to Herrera's live-in girlfriend. Herrera was known to drive the car, and had a set of keys to the car in his pocket when arrested.
  5. Officer Hernandez said Herrera was the only person in the car that night.
  6. Herrera's Social Security card had been found laying on the ground beside Officer Rucker's gun at the first murder scene.
  7. Herrera's pants, wallet, and girlfriend's car were all splattered with type A blood. Officer Rucker had type A blood; Herrera had type O (there was no DNA testing at this time).
  8. Strands of Officer Rucker's hair were found in Herrera's car.
  9. When Herrera was arrested, police found a signed note in Herrera's handwriting in his pocket. The note read:

"To whom it may concern:

"I am terribly sorry for those I have brought grief to their lives. Who knows why? We cannot change the future's problems with problems from the past. What I did was for a cause and purpose. One law runs others, and in the world we live in, that's the way it is.

"I'm not a tormented person...I believe in the law. What would it be without this [sic] men that risk their lives for others, and that's what they should be doing - protecting life, property, and the pursuit of happiness. Sometimes the law gets too involved with other things that profit them. The most laws that they make for people to break them, in other words, to encourage crime.

"What happened to Rucker was for a certain reason. I knew him as Mike Tatum. He was in my business, and he violated some of its laws and suffered the penalty, like the one you have for me when the time comes.

"My personal life, which has been a conspiracy since my high school days, has nothing to do with what has happened. The other officer that became part of our lives, me and Rucker's (Tatum), that night had not to do in this [sic]. He was out to do what he had to do, protect, but that's life. There's a lot of us that wear different faces in lives every day, and that is what causes problems for all. [unintelligible word]

"You have wrote all you want of my life, but think about yours, also.

[Signed Leonel Herrera]

"I have tapes and pictures to prove what I have said. I will prove my side if you accept to listen. You [unintelligible word] freedom of speech, even a criminal has that right. I will present myself if this is read word for word over the media, I will turn myself in; if not, don't have millions of men out there working just on me while others - robbers, rapists, or burglars - are taking advantage of the law's time. Excuse my spelling and writing. It's hard at times like this."

Herrera was subsequently convicted at trial and sentenced to death.

Herrera appealed his conviction and sentence, arguing, among other things, that Hernandez' and Carrisalez' identifications were unreliable and improperly admitted. The Texas Court of Criminal Appeals affirmed the lower court ruling. In 1985, Herrera petitioned the US Supreme Court for a writ of certiorari and was denied (Herrera v. State of Texas, 471 US 1131 (1985).

Herrera next petitioned the State of Texas for a writ of habeas corpus, still on the grounds of the identification, and was denied. He applied to the federal courts for habeas, as well, and again petitioned the US Supreme Court, and again, was denied (498 US 925 (1990)).

Herrera changed his strategy at that point, and filed a second habeas petition, this time alleging, among other things, "actual innocence" based on "newly discovered evidence."

The new evidence consisted of two affidavits. Hector Villarreal, an attorney who represented Herrera's late brother Raul in a criminal case, claimed that Raul, who died in 1984, had told Villarreal that he, not Leonel, had killed Rucker and Carrisalez. Juan Franco Palacious, who had been one of Raul's cellmates, filed an affidavit making the same allegation.

It is important to note here that the affidavits were dated December 10 and 11, 1990, respectively, almost immediately following the Supreme Court's 1990 denial of cert.

The State District Court again denied his application, stating "no evidence at trial remotely suggest[ed] that anyone other than Leonel Herrera committed the offense." The Texas Court of Criminal Appeals affirmed the District Court ruling. Herrera petitioned the Supreme Court for a writ of certiorari for the third time (502 US 1085 (1992)), which they denied.

In February 1992, Herrera filed yet another motion for habeas corpus in the federal courts, claiming he was innocent of Rucker's and Carrisalez' murders, and stating his execution would be a violation of the 8th Amendment prohibition against cruel and unusual punishment.

He offered two additional pieces of "new evidence," in the form of affadavits from Rual Herrera, Jr. (Raul's son, Leonel's nephew) and from José Ybarra, Jr., who had gone to school with the two brothers.

Raul Herrera, Jr.'s affidavit was signed January 29, 1992, just days before the new motion was filed.

Raul, Jr., attested he had been in the car with his father and had witnessed his father kill both men. Raul, Jr., would have been 9 years old at the time of the murders; both Highway Patrol Officers, Hernandez and the late Carrisalez, stated Herrera had been alone in the car.

Ybarra alleged that Raul, Sr., told him in 1983 that he'd killed both officers.

Leonel Herrera said law enforcement personnel investigating the crimes had been aware of the last two pieces of evidence, but had withheld it from the court.

Herrera did not present the evidence until ten years after his trial, however.

The District Court dismissed most of these latest claims as an abuse of writ, meaning they believed Herrera was making dishonest use of the appeals process in order to prevent or delay his execution. On reconsideration, the District Court granted an evidentiary hearing, and concluded the evidence was not credible. The Court of Appeals affirmed the District Court ruling, adding that "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on a federal habeas corpus."

On Herrera's fourth petition to the Supreme Court (which was initially a motion for a stay of execution that failed to receive the necessary five votes, the four justices voting in favor of the stay then decided to grant certiorari), the Court granted certiorari (502 US 1085 (1992)), and the Texas Court of Criminal Appeals stayed the execution pending the Court's ruling.

Supreme Court Decision

The decision was split 6-3, with Chief Justice Rehnquist delivering the Opinion of the Court. He was joined in the full opinion by Justices O'Connor (wrote concurring opinion, joined by Justice Kennedy), Scalia (wrote concurring opinion, joined by Justice Thomas), Kennedy and Thomas. Justice White wrote a separate opinion concurring with the decision, but disagreeing with the reasoning. Justice Blackmun filed a dissenting opinion which was joined by Justices Stevens and Souter (except for the final paragraph).

In general, the conservative faction, which carried the majority (lead by Rehnquist), based their reasoning on rule of law and established standards. They concluded the criminal justice system grants a reasonable assurance of fairness, with an implied "acceptable" margin of error.

The progressive faction (lead by Blackmun) argued in terms of ethics, and believed each case should be determined on an individual basis, rather than by strict order of the law (for example, Texas law disallows rehearings on new evidence once 30 days has elapsed from the time of conviction). They believed the case should be remanded to District Court for a hearing on the veracity of the new evidence (not for a new trial).

I think it's fair commentary to suggest the majority decision in this case rested heavily on their disbelief of the affidavits' veracity, and that most of the justices expressed opinions indicating they would be more likely to rule in favor of an appellant whose evidence is credible. This tends to undermine the popular notion that the Court believes, as one person stated, "actual innocence in no bar to execution."

Leonel Herrera was executed on May 12, 1993, by lethal injection. He proclaimed innocence to the end, telling those gathered to witness his execution:

"I am innocent, innocent, innocent. Make no mistake about this; I owe society nothing. Continue the struggle for human rights, helping those who are innocent, especially Mr. Graham. I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready."

Excerpts from Opinions

Opinion of the Court (Chief Justice William Rehnquist)

"Petitioner asserts 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. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. See United States v. Nobles, 422 US 255 (1975). But the evidence upon which petitioner's claim of innocence rests was not produced at his trial, but rather eight years later. In any system of criminal justice, 'innocence' or 'guilt' must be determined in some sort of a judicial proceeding. Petitioner's showing of innocence, and indeed his constitutional claim for relief based upon that showing, must be evaluated in the light of the previous proceedings in this case, which have stretched over a span of 10 years."

"Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears....Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is 'innocent,' but, on the contrary, as one who has been convicted by due process of the law of two brutal murders."

"Claims of actual innocence based on a 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."

"This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution-not to correct errors of fact....('What we have to deal with [on habeas review] is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved.') Hyde v. Shine, 199 US 62 (1905)....("As the writ of habeas corpus does not perform the office of a writ of error or an appeal, [the facts establishing guilt] cannot be re-examined or reviewed in this collateral proceeding.')"

"Federal courts are not forums in which to relitigate state trials." Barefoot v. Estelle, 463 US 880 (1983).

"This is not to say that our habeas jurisprudence casts a blind eye toward innocence....we have held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence....But this body of our habeas jurisprudence makes clear 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."

"In light of the historical availability of new trials, our own amendments to the Rule 33, and the contemporary practice in the States, we cannot say that Texas' refusal to entertain petitioner's newly discovered evidence eight years after his conviction transgresses a principle of fundamental fairness..."

"This is not to say, however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency....Today, all 36 states that authorize capital punishment have constitutional or statutory provisions for clemency. Executive clemency has provided the "fail safe" in our criminal justice system."

"In this case, petitioner has apparently sought a 30-day reprieve from the Governor, but has yet to apply for a pardon, or even a commutation, on the ground of innocence or otherwise."

"Petitioner's newly discovered evidence consists of affidavits. In the new trial context, motions based solely upon affidavits are disfavored because the affiant's statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations. Petitioner's affidavits are particularly suspect in this regard because, with the exception of Raul Herrera, Jr.'s affidavit, they consist of hearsay. Likewise, in reviewing the petitioner's new evidence, we are mindful that defendants often abuse new trial motions 'as a method of delaying enforcement of just sentences.'" United States v. Johnson,327 US 106 (1946)."

"The affidavits filed in this habeas proceeding were given over eight years after petitioner's trial. No satisfactory explanation has been given as to why the affiants waited until the 11th hour-and, indeed, until after the alleged perpetrator of the murders himself was dead-to make their statements....Equally troubling, no explanation has been offered as to why petitioner, by hypothesis an innocent man, pleaded guilty to the murder of Rucker."

"Moreover, the affidavits themselves contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night Officers Rucker and Carrisalez were killed."

"Finally, the affidavits must be considered in light of the proof of petitioner's guilt at trial-proof which included two eyewitness identifications, numerous pieces of circumstantial evidence, and a handwritten letter in which petitioner apologized for killing the officers and offered to turn himself in under certain conditions. That proof, even when considered alongside petitioner's belated affidavits, points strongly to the petitioner's guilt."

"But coming 10 years after petitioner's trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist."

Concurring (Justice O'Connor, with whom Justice Kennedy joins)

"I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution."

"...the execution of a legally and factually innocent person would be a constitutionally intolerable event. Dispositive to this case, however, is an equally fundamental fact: Petitioner is not innocent, in any sense of the word."

"Petitioner therefore does not appear before us as an innocent man on the verge of execution. He is instead a legally guilty one who, refusing to accept the jury's verdict, demands a hearing in which to have his culpability determined once again."

"(We assume, 'for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim.')"

"The record overwhelmingly demonstrates that petitioner deliberately shot and killed Officers Rucker and Carrisalez the night of September 29, 1981; petitioner's new evidence is bereft of credibility."

"Worse, they conveniently blame a dead man-someone who will neither contest the allegations nor suffer punishment as a result of them. Moreover, they contradict each other on numerous points, including the number of people in the murderer's car and the direction it was heading when Officer Carrisalez stopped it. They do not even agree on when Officer Rucker was killed."

"Ultimately, two things about this case are clear. First is what the Court does not hold. 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. Second is what petitioner has not demonstrated. Petitioner has failed to make a persuasive showing of actual innocence."

Concurring (Justice Scalia, with whom Justice Thomas joins)

"A number of Courts of Appeals have hitherto held, largely in reliance on our unelaborated statement in Townsend v. Sain,372 US 293 (1963), that newly discovered evidence relevant only to a state prisoner's guilt or innocence is not a basis for federal habeas relief."

Concurring in the Judgment (Justice White)

"In voting to affirm, I assume that a persuasive showing of "actual innocence" made after trial, even though made after the expiration of the time provided by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would at the very least be required to 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.'" Jackson v. Virginia, 443 US 307 (1979).

Dissenting (Justice Blackmun, with whom Justice Stevens and Justice Souter join)

"Nothing could be more contrary to contemporary standards of decency, see Ford v. Wainwright, 477 US 399 (1986), or more shocking to the conscience, see Rochin v. California, 342 US 165 (1952), than to execute a person who is actually innocent."

"Because I believe that in the first instance the District Court should decide whether petitioner is entitled to a hearing and whether he is entitled to relief on the merits of his claim, I would reverse the order of the Court of Appeals and remand this case for further proceedings in the District Court."

"I think it is crystal clear that the execution of an innocent person is 'at odds with contemporary standards of fairness and decency.' Spaziano v. Florida, 468 US 447 (1984). Indeed, it is at odds with any standard of decency that I can imagine."

"The protection of the Eighth Amendment does not end once a defendant has been validly convicted and sentenced. (It may also violate the Eighth Amendment to imprison someone who is actually innocent.)"

"Execution of the innocent is equally offensive to the Due Process Clause of the Fourteenth Amendment. The majority's discussion misinterprets petitioner's Fourteenth Amendment claim as raising a procedural, rather than a substantive, due process challenge."

"Given my conclusion that it violates the Eighth and Fourteenth Amendments to execute a person who is actually innocent, I find no bar in Townsend v. Sain, 372 US 293 (1963), to consideration of an actual-innocence claim. Newly discovered evidence of petitioner's innocence does bear on the constitutionality of his execution."

"The Eighth and Fourteenth Amendments, of course, are binding on the States, and one would normally expect the States to adopt procedures to consider claims of actual innocence based on newly discovered evidence. See Ford v. Wainwright, 477 US 411 (plurality opinion) (minimum requirements for state-court proceedings to determine competency to be executed). The majority's disposition of this case, however, leaves the States uncertain of their constitutional obligations."

"Whatever procedures a State might adopt to hear actual innocence claims, on thing is certain: The possibility of executive clemency is not sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments."

"Like other constitutional claims, Eighth and Fourteenth Amendment claims of actual innocence advanced on behalf of a state prisoner can and should be heard in state court. If a State provides a judicial procedure for raising such claims, the prisoner may be required to exhaust that procedure before taking his claim of actual innocence to federal court. See 28 USC §§ 2254(b) and (c)."

"Because placing the burden on the prisoner to prove innocence creates a presumption that the conviction is valid, it is not necessary or appropriate to make further presumptions about the reliability of newly discovered evidence generally. Rather, the court charged with deciding such a claim should make a case-by-case determination about the reliability of the newly discovered evidence under the circumstances. The court then should weigh the evidence in favor of the prisoner against the evidence of his guilt."

Dissenting (Blackmun, final paragraph not joined by Justices Stevens and Souter)

"Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder."


On August 17, 2009, the US Supreme Court granted a writ of habeas corpus ordering the District Court to conduct a hearing on the new evidence of "actual innocence" in the case of death row prisoner Troy Anthony Davis, In re Troy Anthony Davis, 557 US ___ (2009) No. 08-1443 (the docket number).

The motion was decided by five Justices: Justice Stevens authored the order in which Justice Ginsberg and Justice Breyer joined (Justice Stevens earlier dissented in the Herrera case). Justice Sotomayor took no part in the decision.

In his written Opinion, Justice Stevens said:

"The motion of NAACP, et al. for leave to file a brief as amici curiae is granted. The motion of Bob Barr, et al. for leave to file a brief as amici curiae is granted. The petition for a writ of habeas corpus is transferred to the United States District Court for the Southern District of Georgia for hearing and determination. The District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence."

and in response to Justice Scalia's (joined by Justice Thomas) dissent, Justice Stevens wrote:

"JUSTICE SCALIA's dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State's key witnesses have recanted their trial testimony; several individuals have implicated the State's principal witness as the shooter; and "no court," state or federal, "has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence," 565 F. 3d 810, 827 (CA11 2009) (Barkett, J., dissenting) (internal quotation marks omitted). The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."

To read the full opinion in Herrera v. Collins, and the order for Davis' evidentiary hearing, see Related Links, below.

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Q: What US Supreme Court case held that new evidence of innocence is no reason to order a new state trial when constitutional grounds are lacking?
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