Death Row Stories

During the 1970s the Supreme Court outlawed capital punishment on the grounds that it was applied in an "arbitrary" and "capricious" manner. Now it's back with a vengeance, but as a group of Minnesota attorneys is learning, nothing has really changed.

But it was the 1993 Herrera vs. Collins decision that drew the most scrutiny. Leonel Herrera was accused of killing a police officer in a dispute near the Mexican border in 1981; he claimed he could present evidence that it was actually his deceased brother who had shot the cop. All appeals had failed. The Texas courts had turned down his claims. It was 3 in the morning on the day he was to be executed when his attorneys faxed the Supreme Court a stark, simple petition asserting that executing someone who was attempting a show of innocence violated the Constitution's 8th amendment guarantee against cruel and unusual punishment.

Within an hour they had a response: The Supreme Court would hear the merits of the case, but incredibly, hadn't mustered the extra vote needed to save Herrera's life. A sympathetic Texas state judge finally granted a stay just as Herrera was being strapped to a table.

The Court's eventual ruling was that claims of innocence are not a constitutional matter; the opinion made a tiny exception for cases where there are "'extraordinarily high' and 'truly persuasive' demonstrations of 'actual innocence.'" Any broader standard, reasoned the majority, would amount to second-guessing of state courts and cause a disastrous judicial logjam. In a dissenting opinion that he read aloud, Justice Harry Blackmun said the court had missed the point: "The execution of a person who can show that he is innocent comes perilously close to simple murder."

Later Blackmun offered a more encompassing condemnation. "Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved, and the need for regulation eviscerated," he said in 1994, "I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.... The death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.... I believe that the death penalty, as currently administered, is unconstitutional."

Historically, one of the roles of federal courts has been to keep an eye on the state courts, where judges are frequently elected and generally more subject to popular pressure. Now Congress is entertaining proposed revisions to federal habeas corpus standards that would effectively cut off most federal appeals. The provisions appended to the latest House version of the Clinton administration's anti-terrorism bill would narrow the types of claims the federal courts could remedy (it would no longer be enough to claim a state court had erred; appellants would have to demonstrate the court had acted "unreasonably"), reduce the time frame for filing to a year after a state appeal in most cases, and eliminate nearly all subsequent appeals.

"Right now there are eight reasons why the federal courts would have to hold a hearing," explains Babcock. "The new proposal would do away with all of that. The federal court would almost never hold evidentiary hearings. It would require the federal courts to defer to the states' conclusions regarding the facts and the law. The effect is going to be that state court convictions will be insulated from federal court review. State courts traditionally have not been the best enforcers of the Constitution, and it would only get harder for us to uncover state misconduct and other constitutional claims.

"These laws would clear their docket of a lot of cases," she says, waving her hand like a broom. "It's just an abdication of responsibility." If the new proposal had been in effect in 1992, she points out, it's unlikely that a federal court would ever have heard the case of Ricardo Aldape Guerra.

Officer J.D. Harris was patrolling a Latino neighborhood in Houston one hot summer night in 1982 when he came across a stalled car. Harris ordered the passengers--Aldape and a man named Roberto Carrasco Flores--to put their hands on his car. One of them pulled a 9-mm pistol and shot Harris three times in the head. As the two ran from the scene of the crime, one of them killed a bystander with the same gun.

Police caught up with the pair about an hour later. Carrasco fired the 9-mm at another officer before being shot and killed by return fire. When his body was searched, police found the gun in his hand and Harris's .357 in the waistband of his pants. Aldape was discovered hiding under a horse trailer, a .45 pistol lying nearby, wrapped in a bandanna.

The state charged Aldape--an undocumented worker from Mexico with a clean record--with capital murder, despite the fact that none of the ballistics matched the gun found with him. Prosecutors argued that somehow the two had switched guns and that Aldape was the one who had shot Harris and the bystander. They put witnesses on the stand, some of them as young as 14, to point the finger at him. He was convicted and sentenced to death in October 1982. His conviction was affirmed in 1988 and it looked like his case would be rubberstamped into oblivion when Babcock--fresh out of law school and employed by a Texas legal resource center--got involved in 1991. An execution date was looming just months away.

She hired a Spanish-speaking investigator, and the two drove around Houston in his truck looking for the witnesses who had originally testified against Aldape. "It took a lot of time, a couple months," she says, "but it was really fun. We found out that the police had started out their investigation by rounding everyone up in this neighborhood. That they took statements from some of them in English, even had some of them sign prepared statements. One woman signed a statement in English even though she was completely illiterate. She couldn't even speak English."

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