Justice Scalia’s funeral mass is today. As we listen to the accolades and even give him credit where credit is due, we must also remember him accurately and in full context. And that context was antagonistic, even openly hostile at times, to our clients and our work. He was no doubt entertaining to read and nothing seemed off limits. But let’s recognize his work for what it was:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Herrera v. Collins, 506 U.S. 390 (1993).
Herrera was sentenced to death in Texas for the murder of two law enforcement officers based on eyewitness testimony and other circumstantial evidence. By the time he got to federal court eight years later, witnesses had come forward to say that Herrera’s brother Raul had confessed to the killings. Raul’s son, who was nine years old at the time, testified that he was present when his father killed both officers and that Herrera was not present. But it was too late to matter.
There are many other opinions and dissents that we could cite as similar examples of Justice Scalia’s legacy. But Collins says everything we really need to know. Justice Scalia said, and enforced, his belief:
It is not unconstitutional to execute an innocent man.
Four months later, Herrera was executed. His last words were, “I am an innocent man.”
RIP, Leonel Herrera.