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He says he's innocent; does he get to prove it?

Suppose a videotape shows a man convicted of murder by a jury is really innocent. Would it violate the Constitution to allow the man to be executed?

Justice Anthony M. Kennedy posed the hypothetical question during arguments at the Supreme Court on Wednesday. The answer from Texas Assistant Attorney General Margaret P. Griffey was that it would not violate the Constitution, provided the inmate had received a fair trial in state court.

On one level, the case of Herrera v. Collins involves the highly technical habeas corpus process. Habeas corpus is a writ or form of petition filed with a court, seeking the prompt release of someone in custody. It asks those who detain a person to show proof why they should continue to hold that person.

In the case of Leonel Torres Herrera, he is challenging the constitutionality of his imprisonment in federal court after being convicted of murder in state court in Texas. At issue is what standard should be used for an inmate who, after earlier being denied federal court review, files a second habeas corpus petition.

The case also presents the compelling question of whether the Constitution bars the execution of an innocent man.

Herrera came within hours of execution last February. Now he asserts he has evidence that his brother really committed the 1981 murders that landed him on Texas' death row. Turned down by state courts, Herrera wants a federal court to review the new evidence.

Although the legal argument has been cast with a theoretical presumption of innocence, Justice Sandra Day O'Connor noted that Herrera had been convicted of murder. "He comes to us guilty, doesn't he?" she said Wednesday.

The Supreme Court in recent years has actively cut back on the federal avenues for state prisoners' appeals. Led by Chief Justice William H. Rehnquist, a majority has been trying to bring finality to state convictions. Rehnquist _ like President Bush, some members of Congress and state prosecutors all over the country _ asserts that condemned inmates are eluding the death penalty by dragging out state and federal appeals processes.

But prisoners' rights advocates counter that the elimination of thorough federal court review could lead to the execution of innocent people.

Herrera was convicted in 1982 of murdering a Texas police officer. He later pleaded guilty to the related killing of a second officer.

Herrera now argues he has evidence that his brother, Raul, actually killed the officers. He claims that one of the officers was involved in a drug trafficking deal with members of the Herrera family. According to affidavits, Raul Herrera, who is now dead, admitted the slayings.

Because Texas law requires claims of new evidence to be made within 30 days of trial, state courts refused to give Herrera a hearing.

A federal district court ordered an evidentiary hearing in the matter and blocked Herrera's execution. But after the state appealed, the 5th U.S. Circuit Court of Appeals reversed.

It said a claim of innocence based on newly discovered evidence does not on its own require a federal habeas corpus hearing, provided the prisoner had a fair trial. The appeals court said innocence at this stage of an appeal is irrelevant as a matter of law.

Herrera's lawyer, Talbot "Sandy" D'Alemberte, told the justices that a constitutional guarantee of due process of law and protection against cruel and unusual punishment forbid the execution of a person who has a valid claim of innocence.

He said a federal court reviewing the claim should assess whether a jury would have found the defendant guilty, if it had had the benefit of the new evidence. If the federal judge decides that a jury probably would not have found him guilty, a federal hearing should be held.

Justice Antonin Scalia said that would open the floodgates of prisoner appeals. "The burden this would put on our system of justice is enormous," Scalia said.

D'Alemberte, a Florida lawyer and immediate past president of the American Bar Association, said his client was not asking for a new trial, only to be taken off death row.

Scalia contended that it was "illogical" not to ask for a broader remedy, given Herrera's assertion of innocence.

D'Alemberte said he was relying on the court's prior cases holding that "death is different."

Texas Assistant Attorney General Griffey said that if federal courts were allowed to review new evidence on innocence claims, it would undermine a jury trial and invite defendants' "sandbagging" of evidence. She said that no constitutional right to post-conviction review exists and that any new evidence of innocence could be presented to the governor, who could then decide whether to grant clemency.

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