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.”