'Close to Simple Murder'

February 03, 1993

A Texan on death row asked the Supreme Court to grant him a new hearing on the basis of new evidence his lawyers obtained 10 years after his trial. He says it shows he is innocent of the murder for which he was convicted and sentenced to death. The court turned him down.

Given the high court's previous interpretations of the Constitution on the death penalty and timetables for appeals, this was no doubt the right decision to make: The new evidence cited in this case by the death row inmate was not compelling, and the inmate had long ago lost several post-conviction appeals.

But what the court said in arriving at its opinion is enough to send chills down one's spine.

Speaking for the court, Chief Justice William Rehnquist said this: "We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render a defendant's execution unconstitutional and warrant federal habeas relief . . . [But petitioner's] showing of innocence falls far short of the [extraordinarily high] threshold showing which would have to be made in order to trigger relief."

Assume for the sake of argument? Now that sounds like in reality there may be no such assumption in Mr. Rehnquist's jurisprudence, that it may be constitutional to execute a person deliberately despite new evidence of innocence.

We agree with Justice Harry Blackmun, who said in dissent, "The execution of a person who can show that he is innocent comes perilously close to simple murder."

Those are harsh words, not often heard in Supreme Court justices' opinions. Justice Blackmun was probably talking not so much to the majority opinion writer, Chief Justice Rehnquist, as to Justices Antonin Scalia and Clarence Thomas. What they had to say in a concurring opinion was worse than the chief justice's words. They said there was no argument about it -- courts are not required to consider new evidence of innocence after a deadline for appeals has passed.

It is going to be a long time -- if ever -- before the Supreme Court reverses itself on the constitutionality of capital punishment. So in the meantime, given this decision, the prevention of simple murder of innocent persons by the state may be up to the fairness and thoroughness of state courts -- and to state governors, whose powers of pardon and clemency may be from time to time the only thing that stands between an innocent person and execution.

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