WASHINGTON -- A death-row inmate convicted fairly of murder should have no right to try to stay alive by bringing up after the trial undeniable proof of innocence, a lawyer for the state of Texas told the Supreme Court yesterday.
Assistant State Attorney General Margaret P. Griffey advised the justices that she would see no violation of the Constitution if a murderer were executed after being denied any chance to offer evidence clearly demonstrating innocence.
She took part in a one-hour hearing, marked by very spirited questioning by most of the justices, on a case involving a Texan who insists that he has solid proof that his brother, not he, murdered two police officers 11 years ago.
The case of Leonel Torres Herrera of Edinburg, Texas, is a test of whether the court has really meant it in saying over the years that proof of "actual innocence" would keep the federal courthouse door open for state convicts challenging their convictions.
Defense lawyers have in the Herrera case what they believe to be a nearly ideal case on that point, as well as a case that they have said involves nothing less than the power of the states to execute the innocent.
Several justices seemed to be scrambling yesterday to show that the case did not really pose the issue of executing the innocent. Instead, they suggested, it was a case about how the federal courts are to deal with belated claims of innocence -- in all kinds of cases, not just those involving the death penalty.
Ms. Griffey did not flatly say that Texas believes it should be free, constitutionally, to execute innocent persons. But she did tell Justice Anthony M. Kennedy that there would be no constitutional violation if a convicted murderer were executed after state courts refused even to consider new videotaped evidence clearly showing that someone else did the killing.
The Texas lawyer said that the only option that should be left open to murderers after their convictions are final would be an appeal to the governor for clemency.
She also said there would be nothing wrong, constitutionally, if those convicted of murder or any other crime were denied all appeals after one challenge in the Supreme Court -- a move that would virtually abolish the 7-century-old "writ of habeas corpus."
She went further than many advocates of capital punishment have been willing to go as she tried to convince the court to let Texas execute Herrera for murdering a state patrolman and a city police officer 10 minutes apart. After his conviction became final, Herrera came forward with evidence to show that his brother, Raul, did the killings. He has a sworn statement saying that, from Raul's son, who was said to have been an eyewitness.
A federal judge decided that Herrera should have a chance to prove that, but a federal appeals court ruled that he was not even entitled to a hearing because he was not challenging the fairness of his trial. Ms. Griffey urged the justices to uphold that result.
Herrera's lawyer, former American Bar Association President Talbot D'Alemberte, now a Miami lawyer, had almost no chance to present his prepared argument. Within seconds after he had begun, the questions started coming from the bench.
When pressed to say specifically what constitutional rule he was proposing, Mr. D'Alemberte said it would be a declaration that if an inmate came up with quite strong evidence of innocence it should be heard and that no execution could occur until it had been.