02/13/1993
By Nat Hentoff
    "Inscribed above the front entrance to the Supreme Court
building," said Chief Justice William Rehnquist at the funeral
services for Thurgood Marshall, "are the words `Equal justice under
law.' Surely no one individual did more to make these words a
reality than Thurgood Marshall."
    Seeing "the chief" make that tribute on television, I kept
thinking of what Marshall had said 21 years ago in Furman v.
Georgia: "Our `beyond a reasonable doubt' burden of proof in
criminal cases is intended to protect the innocent, but we know it
is not foolproof. Various studies have shown that people whose
innocence is later convincingly established are convicted and
sentenced to death."
    And in this century, at least 23 actually innocent defendants
have been executed before they were proved innocent, according to
the research of professors Michael Radelet and Hugh Bedau ("In Spite
of Innocence," Northeastern University Press).
    Thurgood Marshall was unalterably against the death penalty. He
was also passionately concerned that due process - fairness - be
accorded even the vilest defendant. Arguments about both were
vividly present in a case,Herrera v. Collins, that the Supreme Court
decided three days before the funeral services for Marshall. Justice
Rehnquist wrote that decision condemning Leonel Torres Herrera to
death - unless the governor of Texas grants clemency.
    In 1982 Herrera, a drug dealer convicted of killing two
policemen, was sentenced to death. He said he had been beaten into a
guilty plea and a confession. (Court papers show he was hospitalized
after two police beatings when in custody.)
    In 1990 new evidence began to emerge that Herrera's brother,
Raul - who was shot to death in 1984 - had committed both murders.
Nina Totenberg reported on National Public Radio that Hector
Villarreal, a lawyer and former judge, had signed an affidavit that
Raul Herrera had confessed to him that he had killed the two
policemen. And, said Villarreal,he believed Raul was telling the
truth because, burdened with guilt, he was acting against his own
interests.
   In 1991 Raul's son, who was 9 at the time of the murders, said he
had seen his father shoot the officers. He had waited all this time
to come forward, the son explained, because he was afraid of what
the police might do to him. He claims police were involved with his
father and uncle in drug trafficking, and his testimony as to that
could lead to an investigation of those cops. Three other people
made statements pointing to Raul Herrera as the murderer.
   In 1992 Leonel Herrera presented claims for a habeas corpus
review to federal district Judge Ricardo Hinojosa. Hardly soft on
crime, Hinojosa was a Reagan appointee who has been listed on
occasion as a possible choice for the Supreme Court. Judge Hinojosa
ordered a stay of execution, saying that a "sense of fairness and
due process" made it necessary for a state court to listen to
Herrera's evidence of innocence.
    The 5th Circuit Court of Appeals overruled Judge Hinojosa, and
the Supreme Court now held Leonel Herrera's life in its hands.
Speaking for a 6 to 3 majority, Rehnquist - who was soon to praise
Marshall for making "equal justice under law" a part of people's
actual lives - refused to remand Herrera's case for a hearing on the
new evidence. "Claims of actual innocence based on newly discovered
evidence," Rehnquist said, must be denied habeas relief unless there
is also "an independent constitutional violation." He added that
when habeas corpus is granted - and Rehnquist clearly believes it
has been granted much too often - it is not concerned with
correcting "errors of fact."
    Furthermore, the state of Texas limits the introduction of new
evidence for a new trial to 30 days after conviction. Surely that is
a violation of constitutional due process, because it can take a
long time before exculpatory evidence is discovered. No, said
Rehnquist. This 30-day limit does not violate "a principle of
fundamental fairness rooted in the traditions and conscience of our
people."
    I would expect that Thurgood Marshall would have vigorously
disagreed. Like William Brennan, Marshall often cited "the evolving
standards of decency that mark the progress of a maturing society."
But when the Supreme Court utterly disregards the probable innocence
of a man sentenced to death, that - as Justice Harry Blackmun said
in dissent - comes "perilously close to simple murder."
    Murder by the highest court in the land. What a dissent Thurgood
Marshall would have written in Herrera v. Collins!