Tag Archives: huntsville

2011: Leroy White

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Leroy White received a lethal injection in the HuntsvilleAtmore, Alabama death chamber on this date in 2011.

White had fatally shotgunned his estranged wife but by now it’ll hardly be remembered beyond the people directly touched by this horror. Yet in its banality this case haas something to tell us about America’s shambolic death penalty system.

Although this rule changed in 2017, Alabama used to permit, and its elected judges very actively practice, overruling a jury life sentence recommendation with a harsher judgment from the bench. Something like a fifth of Alabama’s condemned prisoners were there on judge overrides.

White numbered among this misfortunate fifth, and the trial judge wasn’t the only authority in the process whose priors were stacked against Leroy White.

Post-conviction, a Maryland tax attorney who represented White pro bono withdrew from the case and neither he nor anyone else told White about it. That doesn’t even seem possible but attorneys who are overmatched, stretched thin, and even outright incentivized to screw their clients make up an essential component of the system. In this case, the secret withdrawal caused White to miss a deadline for filing an appeal.

The heroic Bryan Stevenson of the Alabama-based Equal Justice Initiative took over the case once this damage was done, but his appeal for a mulligan on the missed deadline fell on deaf ears because he

didn’t have a persuasive argument on the key issue: given more time to appeal, could he win the appeal on the merits of his case?

Stevenson said about half of the roughly 200 prisoners on Alabama’s death row were represented by a lawyer who is not allowed to spend more than $1,000 on out-of-court time working on the case, unless given permission by the trial court under Alabama indigent defense rules. He said that inequity leads to problems with the quality of assistance defendants are getting.

“The death penalty is not just about do people deserve to die for the crimes they are accused of, the death penalty is also about do we deserve to kill,” Stevenson said. “If we don’t provide fair trials, fair review procedures, when we have executions that are unnecessarily cruel and distressing, or if we have a death penalty that is arbitrary or political or discriminatory, then we are all implicated.”

White still had one last hope: a clemency grant by outgoing governor Bob Riley. Riley’s term in office ended four days after this execution, and he has had no political career since. Did he, like predecessor George Wallace, find his conscience burdened by the executioner’s office? In this precious interval released from all political pressure or consequence did he make use of a free hit at the quality of mercy? Reader, he did not — spurning a plea by the surviving daughter of both victim and killer not to give her another dead family member to mourn.

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1991: Ignacio Cuevas, Huntsville Prison Siege survivor

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This date in 1991 was the quiet coda of one of America’s most spectacular prison risings.

At the stroke of 1 o’clock on July 24, 1974, Federico “Fred” Gomez Carrasco, a life-sentenced heroin kingpin with more money than God, took control of the Huntsville Walls Unit‘s prison library with two henchmen — inmates Rudolfo Dominguez and Ignacio Cuevas. It is Cuevas’s eventual execution on May 23, 1991, that gives us occasion for this post — but the so-called Huntsville Prison Siege was all Carrasco’s show, starting with the guns he was able to smuggle into the stir.

With fifteen hostages in their power, a cordon of Texas Rangers blockading Walls Unit, and a legion of media camped round the clock, the audacious trio bargained for eleven tense and sweltering days — Eleven Days in Hell, by the title of a later account. The desperados won little amenities, like new clothes and toothpaste. The hostages braced for the worst, despite Carrasco’s considerable personal charm.

“I believe Carrasco made an attempt to be shown as a gentleman criminal,” a surviving hostage remembered. “He treated us with a great deal of respect and kindness — except, of course, when he’d tell us, ‘I’m going to shoot you in 20 minutes.’ And he did that three or four times a day.”

One inmate hostage was so afraid of Carrasco that he hurled himself out a glass window to get out from under his thumb. (It worked.) Two other inmates were freed after suffering heart incidents, one real and one feigned.

But Carrasco et al weren’t looking to move into the library permanently and make friends with their hostages. Their ultimate ask of negotiators was a biggie: an armored getaway car. Texas Gov. Dolph Briscoe approved it and had rolled up to the prison courtyard.

The plan, so Carrasco said, was to flee for Cuba.

That Cuba wasn’t, topographically speaking, a drivable destination didn’t really enter into the question: car or no, the authorities obviously had no intention of letting their inmates roll on out for the freedom of the open road. The inmates obviously knew that, too … but then, they hadn’t got all dressed up for nothing.

Shortly after 9 p.m. on August 3, the dramatic eleven-day standoff came to a suitably cinematic shootout conclusion.

The trio of would-be escapees made their way that night for the armored car in an improvised fortification dubbed by the press (with questionable taste) the “Trojan Taco”: rolling blackboards armored with 700 pounds of legal tomes and all the remaining hostages. Carrasco, Dominguez, and Cuevas each handcuffed himself to one of the hostages and hunkered down with his unwilling escort inside the blackboard walls; the others formed a human shield outside the makeshift tank.

It was a pretty good plan to blank the Rangers’ guns.

So the Rangers brought firehoses to the fight instead.

The whole bunch, hostages and all, got hammered as they made their way down a ramp towards the car by the water jets, although the sheer weight of the “Taco” and its law library kept the formation from toppling. A melee ensued, with the desperate inmates firing from little gun ports in the “Taco”, and also shooting their hostages within it. Two of those unfortunates, Yvonne Beseda and Judy Standley, bled out in the prison courtyard.

Cal Thomas, today a nationally syndicated columnist, was a young reporter at the time for a Houston television station. “It is a tragedy that two hostages died,” he would later write. “It is a miracle all the rest lived.”

The perpetrators did not fare as miraculously. Rudolfo Dominguez was shot dead in the exchange. And Carrasco himself, who had once vowed in vain never to be taken alive by U.S. law enforcement, now belatedly made good his resolution by taking his own life. Only Ignacio Cuevas survived it, and he only to face capital murder charges and draw a 1975 ticket to death row. He was finally put to death sixteen years later — just steps away from the scene of his most notorious crime.

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2010: Gary Johnson

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“I never done anything in my life to anybody,” insisted 59-year-old Gary Johnson as he received on this date last year a lethal injection for a 1986 double homicide.

Life may be a journey and not a destination, but Johnson didn’t have far to travel: he was convicted of a murder just 10 miles outside Huntsville, where the state death house resides.

Specifically, he and his brother Terry allegedly burgled a ranch — and then shot dead the two men who responded to a concerned neighbor’s call about the suspicious activity. One of the victims was heard begging for his life before being shot execution-style.

(Terry Johnson copped a plea and is serving a 99-year sentence. Gary Johnson took his chances at trial.)

Without going so far as to advance any particular brief for Johnson’s actual innocence, we’re compelled to retch a little at this footnote to the Associated Press wire story:

[Gary Johnson’s trial prosecutor Frank] Blazek said investigators found the same slogan etched in concrete outside Johnson’s home and on a T-shirt he was wearing in a photograph: ”Kill them all and let God sort them out.”

What … like the everyday Metallica shirt? Or did he mean the Special Forces icon?*

”It indicated a callousness about human life,” he said.

This guy needs to get out more.

Similar fatuous claims about pop-death iconography as indicia of guilt were leveraged in the now-infamous Cameron Willingham case; there’s something rather troubling about the fact that a quarter-century on, and even with the Willingham embarrassment fresh in the headlines, the prosecutor still finds this inconsequential sidelight compelling enough to mention — and an institutional journalist finds it serious enough to print.

* The last link in this sentence was formerly to a Special Forces gear page showing items for sale with this same logo; the link was in no way sponsored (no link on this site will ever be sponsored), and it was completely relevant to the text since it not only displayed the message in question but the fact that that message is a going commercial concern — i.e., that one can easily buy a shirt with the “damning” slogan. Twenty-eight months after that link was posted, a Google bot declared it unnatural and penalized not my site but the recipient of the link. As usual, Google’s error-prone summary judgments come with no channel for appeal. Though I’ve reluctantly altered the link since the other site doesn’t deserve Google’s vindictiveness, I note here, for the record and biliously, the editorial muscle unjustifiably arrogated by Google’s slipshod algorithm police.

Part of the Themed Set: 2010.

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2008: Greg Wright, still fighting for exoneration

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Two years on from his execution in Texas this date in 2008, the website FreeGregWright.com still bears its namesake’s now-hopeless case for exoneration.


Wright’s wife Connie (the woman on the right) and their friend Bente Hjortshøj released this photo of Greg Wright 15 minutes after execution “to show the world the cruel and unusual punishment and its horrible consequences.”

Wright and another homeless man, John Adams, were taken in by a generous 52-year-old widow named Donna Vick. Vick paid for her charity with her life … but who was the killer?

Adams fingered Wright, but Wright always insisted that Adams killed her. Late-arriving DNA evidence appeared to back Wright. So did too-late-to-matter confessions by Adams. (Adams, for his part, was also convicted for capital murder; each man was separately tried on the theory that he was the murderer and the other the bystander.)

The disputed facts of this case are a muddier affair that don’t readily admit a slam-dunk exoneration. An episode of the Dallas DNA television series looked at Wright’s case and disappointed Wright’s supporters with its unfavorable view of the subject’s case.

Wright, nevertheless, maintained his innocence from the execution gurney.

John Adams lied. He went to the police and told them a story. He made deals and sold stuff to keep from going to prison. I left the house, and I left him there. My only act or involvement was not telling on him. John Adams is the one that killed Donna Vick. I took a polygraph and passed. John Adams never volunteered to take one. … I was in the bathroom when [Adams] attacked [Vick]. I am deaf in one ear and I thought the T.V. was up too loud. I ran in to the bedroom. By the time I came in, when I tried to help her, with first aid, it was too late. The veins were cut on her throat. He stabbed her in her heart, and that’s what killed her. I told John Adams, “turn yourself in or hit the high road.” I owed him a favor because he pulled someone off my back. I was in a fight downtown. Two or three days later he turned on me. I have done everything to prove my innocence. Before you is an innocent man.

The victim’s son — for whom little ice was cut by Wright’s admitted failure to summon medical help for the victim, or to turn in the alleged killer Adams — complained that the statement was “the same thing we’ve got since day one, each of them blaming it on the other one.”

Former congresswoman Cynthia McKinney witnessed the execution, taking a break from her Green Party presidential bid.

One of the crime scene investigators in this case, Eric George Rosenstrom, is now himself wanted for murder.

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1923: Nathan Lee, the last public hanging in Texas

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This date in 1923 was the passing of an era: the last legal public hanging in Texas.

The Texas of legend — the rough and vast frontier — fits the public hanging tableau (and its dark cousin, the lynching) like a hemp necktie.

And up until 1922-23, Texas executions had indeed been hangings administered by county sheriffs. But that newfangled killing technology, the electric chair, beguiled the legislature here as elsewhere. Oil wells popping up all over the state were rewriting its economic future … so why not a futuristic way of killing wrongdoers, too?

A 1923 bill centralized future executions in Huntsville, where they still remain today.

Denouncing countyseat [sic] executions as a barbaric relic of the frontier past, L.K. Irwin launched a one-man campaign to bring Texas in tune with the times. The state legislator converted many to his cause with the argument that public hangings harmed society almost as much as the condemned.

Irwin insisted executions usually degenerated into bloodthirsty carnivals that did nothing to instill in spectators a respect for the law. All too often untrained local officials made the spectacle even more gruesome, when the drop failed to snap the victim’s neck. On those occasions, he slowly strangled in full view of females and impressionable children.

In the 1923 session of the Lone Star legislature, Irwin introduced the Electric Chair Bill. In addition to doing away with the gallows, the proposal relieved county sheriffs of the responsibility of the carrying out death sentences. Future executions would be held behind closed-doors inside the Texas Department of Corrections.

That law took effect on Aug. 14, even though the electric chair hadn’t even been built yet. The hanging of one Roy Mitchell in Waco on July 30 figured to be the last, and thousands packed the public square to witness it. It’s still sometimes cited as the Lone Star State’s last hanging.

Grandfather Clause

But on that very same date in the Gulf town of Angleton, Nathan Lee, an illiterate middle-aged black sharecropper, was condemned to die for shooting his white employer dead in a dispute over money. (The Ku Klux Klan sent flowers to the funeral.)

A month later, he did so — albeit in an area whose public access had intentionally been curtailed, to chill out any potential carnival scene.

“I did it,” Lee said on the scaffold. “I am to blame, and no one else.”

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2002: Craig Neil Ogan, drug war informant

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(Thanks to David Carson of the informative Texas Execution Information Center for the guest post, originally run on his site. -ed.)

Craig Neil Ogan, 47, was executed by lethal injection on 19 November 2002 in Huntsville, Texas for the murder of a police officer.

Mugshot clipped from Texas Department of Criminal Justice. More information, including some of Ogan’s own writing, at the Clark County Prosecutor site.

Craig Ogan had worked as an informant for the federal Drug Enforcement Agency since January 1988. Upon his request, the DEA relocated him from St. Louis to Houston in late 1989 after his identity had been revealed in a court proceeding. Ogan was under orders to not personally get involved in any drug transactions. He was also prohibited from carrying a weapon. Despite these instructions, Ogan insisted on arming himself and seeking involvement in drug transactions.

On 8 December 1989, Ogan, then 34, called the DEA agent who supervised him and told him that he was in a restaurant where he had just had an armed confrontation over a drug deal that fell through. He said that a man pointed a gun at his head and called him “narc.” He said that he feared for his life and asked for an escort from the restaurant. The agent arranged for two Houston police officers to escort Ogan from the restaurant back to his apartment. Once at the apartment, the officers watched as Ogan packed his belongings, which included a pistol, a sawed-off shotgun, and some knives. They then followed him to a motel. Ogan checked into a room, and the officers left at around 9:00 p.m.

At about 12:30 a.m., Ogan went to the lobby to complain about his telephone charges and the heater in his room. He argued loudly with the clerk and began kicking at a door. When the clerk called 9-1-1 for assistance, Ogan left.

Around this time, Houston police officers Clay Morgan Gainer and James C. Boswell pulled a car into a parking lot across the street from the motel, for a minor traffic violation. Ogan, then 34, walked over to them and knocked on the passenger window. Officer Boswell, 29, lowered his window and asked Ogan what he wanted. After a heated exchange, Boswell got out of the car. Ogan took Boswell’s pistol and shot him once in the head. He ran. Officer Gainer chased Ogan on foot, shot him in the back, and arrested him.

At Ogan’s trial, Gainer testified that when Boswell lowered his window and asked Ogan what he wanted, Ogan replied, “DEA dropped me off out here, and I’m cold.” Boswell told Ogan that they would help him as soon as they finished with the traffic stop, and to back away from the car. Boswell then raised his window. Ogan, however, demanded immediate attention. He knocked on Boswell’s window again, repeating that he was a DEA informant and that he was cold. Boswell told him, “You need to get out of here if you are not willing to step out of the way and wait. You either need to leave, or you are going to jail.” Ogan persisted with his demands. Boswell got out of the police car. According to Gainer, Boswell removed his sidearm from the holster and held it down against his leg. As he was reaching into the car to unlock the back door, Ogan grabbed Boswell’s gun and shot him once in the head. Ogan then said, “Well, [expletive] you then” and ran.

In addition to the above testimony, Darryl O’Leary, one of the two officers who escorted Ogan from the restaurant, testified that Ogan was “extremely excited” when he arrived. O’Leary said that when he told Ogan he could not take him until a backup officer arrived, Ogan became “impatient, hostile, and loud.”

Ogan had no prior criminal convictions. He had numerous assault charges that had been filed against him, then dismissed.

Sally Webster, a psychologist testifying for the defense, said that Ogan suffered from paranoia and had a passive-aggressive personality, but that these disorders were not mental illnesses and had no bearing on his competency to stand trial. She described Ogan’s mental state on 8 and 9 December as “anxious, agitated, almost hyperactive, very touchy, very worried.” Ogan’s lawyers called Webster to testify in an attempt to assert his mental state as a mitigating factor in determining his punishment, but the tactic backfired. Instead, prosecutors convinced the jury that Ogan’s history of high-strung paranoia made him a future danger to society.

A jury convicted Ogan of capital murder in June 1990 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 1993. All of his subsequent appeals in state and federal court were denied.

In his appeals, Ogan’s attorneys claimed that their client suffered from a mental illness and that his trial counsel was incompetent for failing to use that in his defense. Ogan, who had an IQ of 140, had attended college, and spoke several languages, told a reporter, “They’re trying to sell me as a nut case. I don’t appreciate that.”

Ogan had a longstanding interest in espionage and had ambitions of joining the Central Intelligence Agency. In one of his letters from death row, he claimed that he had an appointment for an interview with the CIA the day he killed Officer Boswell. His career as a spy, however, never took off. At his trial, DEA agents testified that they considered Ogan to be, though a “marginally successful” informant, mostly a comical figure who ducked behind newspapers whenever a stranger entered their office. They derisively called him “special agent double-oh-five” behind his back. They also criticized him for getting involved in a drug deal without their permission, then calling for their assistance when it got him into trouble.

From death row, Ogan wrote letters that were posted on an anti-death-penalty web site. In one of them, he claimed that his execution represented the “premeditated mass murder” of possibly thousands of his potential descendants. He also provided his version of the conversation between himself and Officer Boswell. In Ogan’s account, he was extremely polite, courteous to a fault, and non-confrontational. Boswell and Gainer, on the other hand, were hostile to him without provocation and called him a “[expletive] DEA snitch.” Ogan wrote that when he told Boswell, “All right, sir; I was only asking for help,” Boswell then threw his door open and burst out of the car “in an insane rage, running/lunging furiously right at me, like a football tackle gone berserk, and clawing frantically at his gun/holster.”

An anti-death-penalty spokesman who visited Ogan on death row described him as “extremely tense.”

Ogan’s execution was delayed for nearly an hour as the Supreme Court considered late appeals questioning his mental competence.

“I would like to say first of all the real violent crimes in this case are acts committed by James Boswell and Clay Morgan Gaines,” Ogan said in his lengthy last statement. “I am not guilty; I acted in self-defense and reflex in the face of a police officer who was out of control,” he said. Ogan referred to a head injury Boswell had suffered and suggested that he had mental problems. He described Boswell as “filled with anger” and “mad at the world.” The lethal injection was given while Ogan was two minutes into his last statement. At 7:05 p.m., he was still talking about Boswell when he paused briefly to collect his thoughts. The lethal drugs took effect as Ogan then snorted, gasped, and lost consciousness. He was pronounced dead at 7:13 p.m.

By David Carson. Originally posted on 20 November 2002. Revised on 5 December 2002.
Sources: Texas Department of Criminal Justice, Texas Attorney General’s office, U.S. Fifth Circuit Court documents, Associated Press, Houston Chronicle, letters from Craig Ogan.

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2005: Luis Ramirez, claiming innocence

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On this date in 2005, Luis Ramirez was executed in Texas for engineering the murder-for-hire of his ex-wife’s new flame.

Ramirez went to his death still insisting on his innocence.

I did not kill your loved one, but I hope that one day you find out who did. I wish I could tell you the reason why, or give some kind of solace; you lost someone you love very much. The same as my family and friends are going to lose in a few minutes. I am sure he died unjustly, just like I am.

Maybe so. Maybe not.

Contrary to the widespread misapprehension that DNA and other forensic evidence are rendering criminology a perfect science, the majority of criminal procedures make do without them — consequently depending on the more impressionistic and time-honored pillars of jurisprudence: a weighing of circumstantial evidence; an estimate of the credibility of competing witnesses; the structural advantage of the well-resourced prosecutor’s office against its typical adversaries.

There may never be an answer to Luis Ramirez’s last statement, simply because there’s no obvious prospect of a dramatic forensic science reveal.

Wherever Ramirez’s soul might truly stand on the matter of capital murder, he left behind this interesting portrait of human connection on death row.

I’m about the share with you a story who’s telling is long past due. It’s a familiar story to most of you reading this from death row. And now it’s one that all of you in “free world ” may benefit from. This is the story of my first day on the row.

I came here in May of 1999. The exact date is something that I can’t recall. I do remember arriving in the afternoon. I was placed in a cell on H-20 wing over at the Ellis Unit in Huntsville, TX. A tsunami of emotions and thoughts were going through my mind at the time. I remember the only things in the cell were a mattress, pillow, a couple of sheets, a pillow case, a roll of toilet paper, and a blanket. I remember sitting there, utterly lost.

The first person I met there was Napoleon Beazley. Back then, death row prisoners still worked. His job at the time was to clean up the wing and help serve during meal times. He was walking around sweeping the pod in these ridiculous looking rubber boots. He came up to the bars on my cell and asked me if I was new. I told him that I had just arrived on death row. He asked what my name is. I told him, not seeing any harm in it. He then stepped back where he could see all three tiers. He hollered at everyone, “There’s a new man here. He just drove up. His name is Luis Ramirez.” When he did that, I didn’t know what to make of it at first. I thought I had made some kind of mistake. You see, like most of you, I was of the impression that everyone on death row was evil. I thought I would find hundreds of “Hannibal Lecters” in here. And now, they all knew my name. I thought “Oh well,” that’s strike one. I was sure that they would soon begin harassing me. This is what happens in the movies after all.

Well, that’s not what happened . After supper was served, Napoleon was once again sweeping the floors. As he passed my cell, He swept a brown paper bag into it. I asked him “What’s this?” He said for me to look inside and continued on his way. Man, I didn’t know what to expect. I was certain it was something bad. Curiosity did get the best of me though. I carefully opened the bag. What I found was the last thing I ever expected to find on death row, and everything I needed. The bag contained some stamps, envelopes, notepad, pen, soap, shampoo, toothpaste, tooth brush, a pastry, a soda, and a couple of Ramen noodles. I remember asking Napoleon where this came from.

He told me that everyone had pitched in. That they knew that I didn’t have anything and that it may be a while before I could get them. I asked him to find out who had contributed. I wanted to pay them back. He said, “It’s not like that. Just remember the next time you see someone come here like you. You pitch in something.”

I sat there on my bunk with my brown paper bag of goodies, and thought about what had just happened to me. The last things I expected to find on death row was kindness and generosity. They knew what I needed and they took it upon themselves to meet those needs. They did this without any expectation of reimbursement or compensation. They did this for a stranger, not a known friend. I don’t know what they felt when they committed this act of incredible kindness. I only know that like them, twelve “good people” had deemed me beyond redemption. The only remedy that these “good people” could offer us is death. Somehow what these “good people” saw and what I was seeing didn’t add up. How could these men, who just showed me so much humanity, be considered the “worst of the worst.”

Ever since Napoleon was executed, for a crime he committed as a teen, I’ve wanted to share this story with his family. I would like for them to know that their son was a good man. One who I will never forget. I want for them to know how sorry I am that we as a society failed them and him. I still find it ridiculous that we as a people feel that we cannot teach or love our young properly. I’m appalled at the idea that a teen is beyond redemption, that the only solution that we can offer is death. It’s tragic that this is being pointed out to the “good people” by one of the “worst of the worst”. God help us all.

What’s in the brown paper bag? I found caring, kindness, love, humanity, and compassion of a scale that I’ve never seen the “good people” in the free world show towards one another.

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1993: Leonel Herrera, perilously close to simple murder?

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On this date in 1993, Leonel Herrera was executed by lethal injection in Huntsville, Texas, for shooting two policemen. Herrera’s last statement averred,

Herrera’s sister Norma self-published this book about the case — keeping a promise to her executed brother.

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

Well, Herrera wasn’t the first to go to his death maintaining his innocence. The circumstances (and circumstantial evidence) of the crime rate on the forgettable side.

But Leonel Torres Herrera was a bit different from his cousins in hopeless protestation: while he died this evening, his name lived on … in a landmark Supreme Court decision

Herrera v. Collins

Years after Herrera was convicted and death-sentenced, multiple affidavits were produced to the effect that his late brother, Raul, was the real killer.

This evidence was naturally pursued with gusto by the condemned man.

Unfortunately, a claim like Herrera’s of “actual innocence” faces a very high bar when raised in appellate courts, once a prisoner has already been convicted and their presumption of innocence become a presumption of guilt.

That this arbitrary rule of the game has a defensible rationale — could any criminal justice system operate if prisoners could continually relitigate their cases while memories fade and evidence ages into obsolescence? — does not make it the less Kafkaesque for individual prisoners, some of whom are in fact innocent.

Herrera presented this problem in unusually stark terms. Lacking any procedural violation upon which to hang his hat as an appeals issue, his claim pitted substance against form in the Supreme Court. (Oral arguments at Oyez.org)

You already know how it ended.

Chief Justice William Rehnquist’s opinion patiently explained a jurisprudential truism loftily uncolored by any experience in life liable to introduce a sense of kinship with a Hispanic man charged with a Texas cop-killing who uncovers too late the evidence that could save him.

“[A]ctual innocence” is not itself a constitutional claim.*

Instead, the Court recommended — tongue no doubt planted firmly in cheek — that Herrera apply for executive clemency, a dead letter procedure in Texas used exclusively in a good cop/bad cop routine opposite the black robes.

“Judicial restraint forbids relieving you,” says the court. “Go ask the governor.”

“The courts have thoroughly reviewed the case,” intones the governor. “May God have mercy on your soul.”

Herrera himself may or may not have been innocent. At the end of the day, he went down because the game was rigged against him: his exculpatory evidence was not available at trial, when it might have introduced “reasonable doubt” — as Rehnquist’s opinion put it, “in state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant.” Once that evidence became available deep in the appeals process, it was procedurally barred, and far from such a slam-dunk exoneration that any institutional actor would stick his, her or its neck out to lift Leonel Torres Herrera from the gurney.

Justice Harry Blackmun’s dissent retorted,

Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.

Whether “simple murder” happened in Huntsville this night in 1993, perhaps no one can really say with certainty.

But as DNA evidence and other forensic advances in the intervening years have increasingly eroded confidence in the reliability of the justice system that metes out death, Herrera v. Collins stands as a key precedent in a case now before the Supreme Court — in which states (joined by the Obama administration) are asking the justices to agree that convicted prisoners have no right to cheap, simple, and frequently dispositive DNA testing that may not have been available when they were tried.

Given the composition of the court (including three holdovers from the Herrera majority), that decision figures to have Leonel Herrera rolling over in his grave.

* Rehnquist conceded a theoretical possibility that extraordinarily persuasive evidence could generate relief on due process grounds. Antonin Scalia and Clarence Thomas went much further, claiming that prisoners had no right to anything but their trial and their (procedural) appeals.

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