Hispanic Heritage Month: Leonel Herrera and the ​“Agony of Doubt”

In honor of Hispanic Heritage Month (Sept. 15-Oct. 15), DPI is posting a weekly feature on Hispanic or Latino/a people who have had a significant impact on the death penalty in the U.S. The first post in this series tells the story of Leonel Herrera, the defendant at the center of a key Supreme Court case on innocence.

In 1993, the Supreme Court generated widespread outrage when it ruled in Herrera v. Collins that new evidence of actual innocence does not entitle a death-sentenced prisoner to a hearing in federal court. “Not Guilty? It Doesn’t Matter,” reported the Atlanta Constitution, while USA Today pleaded, “Don’t Make It Easier to Execute the Innocent.” Many newspapers and advocates took up the final line in Justice Harry Blackmun’s blistering dissent: “The execution of a person who can show that he is innocent comes perilously close to simple murder.” While Chief Justice William Rehnquist, writing for the majority, allowed that a “truly persuasive demonstration of ‘actual innocence’” could make an execution unconstitutional, he argued that such a standard “would necessarily be extraordinarily high”—and the evidence presented in this case “falls far short of any such threshold.” Indeed, in the decades that followed, the threshold Chief Justice Rehnquist imagined was not cleared by a single applicant, let alone defined. Behind the ruling was Leonel Herrera, a complicated man with a tragic life who was executed four months after the Supreme Court’s decision without ever getting the chance to test his innocence claim in federal court. 

Leonel Herrera was the second of five children born to a poor Mexican-American family in McAllen, Texas, the southernmost corner of the state. His youngest sister Norma describes their childhood as “a destitute upbringing in a migrant farm working Hispanic family seeking a meager life on the border between Texas and Mexico” with “an abusive, alcoholic father who repeatedly and mercilessly beat on his wife and children.” Leonel’s mother Maria had married his father José at age 14, and feared her violent husband, who was involved in the drug trade. Court testimony showed that José beat Maria “black and blue” and kicked her in the stomach when she was pregnant with Leonel. As a child, Leonel suffered chronic illnesses, but his family could not afford a doctor. He also excelled in sports but experienced multiple head injuries, and endured beatings from his father when he tried to protect Maria from José’s abuse. 

Leonel dropped out of high school during his senior year and joined the Navy. He was promptly sent to Vietnam, where he spent two years on a ship off the coast and saw combat. According to friends and family, he “returned from Vietnam a changed and paranoid man.” He sometimes “lapsed into a glassy-eyed trance-like state, and would talk nonsense until he could be brought out of it.” 

Leonel and his younger brother Raúl entered into a partnership to operate a convenience store, but when the business began to fail, José convinced his sons to join him in the drug trade. Soon Leonel was dependent on cocaine and his paranoia increased. He started living in his car, claimed his wife was poisoning him, and said “green things were coming down from the trees and…they were after him.” Friends and associates claimed that law enforcement officials in the area were also involved in the drug trafficking network. 

On September 29, 1981, police officer David Rucker was shot and killed on a highway in the Rio Grande Valley. Another officer, Enrique Carrisalez, pulled over a car that was speeding away from the scene, but someone in the car shot back at him. Officer Carrisalez named Leonel Herrera as his attacker based on a single photograph shown to him in the hospital, then died eight days after the shooting. There were several other incriminating pieces of evidence: the speeding car was registered to Leonel’s girlfriend; Leonel had the car keys on him when he was arrested; his Social Security card was found by Officer Rucker’s body; blood on Leonel’s clothes matched Officer Rucker’s blood type; and Leonel had a handwritten letter implicating his guilt in the murders. Leonel was convicted and sentenced to death for the murder of Officer Carrisalez in 1982 and pled guilty to the murder of Officer Rucker. His sister Norma later wrote a book in which she described police officers beating Leonel to the point of unconsciousness after his arrest, and alleged the jury was “stacked with individuals who were members of the local police departments or closely associated with them.” 

After Leonel’s brother Raúl was murdered in 1984, witnesses suggested it had been Raúl who had killed the officers instead of Leonel. Raúl’s former attorney Hector Villarreal, who was also a former state court judge, swore in an affidavit that Raúl had confessed responsibility for the murders to him. Raúl’s son, Raúl Jr., who was 9 years old in 1981, swore that he had been in the car with his father when his father committed the murders, and Leonel was not present. Raúl Jr. also said that Raúl Sr. had often dealt with local police officers complicit in the drug business, and that officers came to the house during Leonel’s trial to threaten Raúl Sr. to keep quiet. Two other people, a former cellmate of Raúl Sr. and a schoolmate of the Herrera brothers, also said in sworn affidavits that Raúl Sr. had confessed to them. “Never in my almost ten years of death penalty practice had I seen such extraordinary evidence demonstrating not just my client’s innocence, but the extreme degree of government involvement in deceit and criminal involvement,” said Leonel’s attorney Robert McGlasson. Leonel’s legal team asked a federal court for an evidentiary hearing on his innocence claim, and their request was granted—but the Fifth Circuit Court of Appeals vacated the decision. The Supreme Court agreed to decide whether he should have an opportunity to present evidence of his innocence.

A fractured 6-3 Court said no, while giving conflicting responses to the underlying question of whether executing an innocent person violated the Constitution. For the majority, Chief Justice Rehnquist wrote that new evidence of actual innocence has “never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” However, he also wrote that actual innocence could perhaps be its own constitutional claim if there was a “truly persuasive demonstration” of innocence, meeting an “extraordinarily high” bar. He declined to describe the requirements further but dismissed the notion that Leonel’s claims met that bar. 

Three justices wrote concurrences, revealing divisions in the Court’s thinking. Justice Sandra Day O’Connor, joined by Justice Anthony Kennedy, said that “the execution of a legally and factually innocent person would be a constitutionally intolerable event.” However, she did not describe how to prevent such an event, instead arguing that Leonel did not deserve an opportunity to present evidence because she believed he was “not innocent in any sense of the word.” Justice Byron White concurred along similar lines. Previewing a common conservative argument in the decades that followed, Justice O’Connor contended that finality should be the priority in criminal cases and that the courts would be “deluged with frivolous claims” if the standard for actual innocence was lowered.

On the other hand, Justice Antonin Scalia, joined by Justice Clarence Thomas, found no issue with the execution of an innocent person as long as the person was convicted and sentenced to death in a fair trial. “There is no basis in text, tradition, or even in contemporary practice…for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence if brought forward after conviction,” Justice Scalia wrote. He predicted that the majority’s failure to clearly articulate this position would “make it harder” for lower courts to resolve innocence claims in capital cases.

The justices in the majority attempted to assuage any criticism by arguing that innocent people sentenced to death would be able to secure clemency to avoid execution. Clemency “is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted” and “has provided the ‘fail safe’ in our criminal justice system,” Chief Justice Rehnquist wrote.

In dissent, Justice Blackmun, joined by Justices John Paul Stevens and David Souter, expressed astonishment at his colleagues’ conclusions. “We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence,” he wrote. “I do not see how the answer can be anything but ‘yes.’” According to Court precedent, he argued, punishment “is excessive and unconstitutional if it is ‘nothing more than the purposeless and needless imposition of pain and suffering’”—and “[e]xecuting an innocent person epitomizes ‘the purposeless and needless imposition of pain and suffering.’” He “voiced disappointment over this Court’s obvious eagerness to do away with any restriction on the States’ power to execute whomever and however they please.”

Justice Blackmun also criticized the majority’s reliance on clemency grants to protect innocent people sentenced to death. “The vindication of rights guaranteed by the Constitution has never been made to turn on the unreviewable discretion of an executive official or administrative tribunal,” he wrote. Professor Kathleen Cava Boyd echoed his concern, calling the Court’s argument “unconvincing” because “clemency decisions are highly vulnerable to political manipulation; their use as a safety net may premise a prisoner’s rights on the direction of the prevailing political winds.” DPI’s recent Lethal Election report confirmed this risk: our statistical analysis showed that governors were more likely to grant clemency in capital cases when they did not face reelection. Additionally, while “possible innocence” was a common rationale for a grant of clemency, officials have denied scores of clemency petitions involving compelling evidence of innocence. 

As Justice Scalia predicted, lower courts and legal advocates indeed struggled with the case’s holding. Six justices—O’Connor, Kennedy, White, Blackmun, Stevens, and Souter—had agreed on principle that the Constitution prohibited the execution of an actually innocent person. But the effect of Herrera v. Collins was that an innocent person had virtually no path to proving their innocence unless they could also prove an independent constitutional violation.

Leonel was executed on May 12, 1993, less than four months after the Court issued its decision. (His execution was originally scheduled for May 5, Cinco de Mayo, which he told the Associated Press was “an insult to all Hispanic people in the United States and Mexico and wherever they may be.”) His last words:

“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.¹ I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready.”

Since the ruling, 140 people have been exonerated from death row, with the number of total exonerations reaching 200 this summer. Many others have gone to the execution chamber insisting on their innocence. Several high-profile cases of people with credible innocence claims are currently scheduled for execution, including Robert Roberson in Texas and Marcellus Williams in Missouri. Law professor and death penalty expert Michael Mello wrote of Mr. Herrera’s case: 

“Was Leo Herrera innocent? I don’t know. […] Should Leo Herrera have been given his day in federal court, to present his newly-discovered evidence of innocence? Absolutely. Will the Supreme Court’s decision in Leo Herrera’s case increase the likelihood that innocent people will be executed in America? Absolutely.”