# Legal Question re: Death Penalty in USA. **URL:** \ **Category:** Factual Questions\ **Created:** [September 25, 2007, 3:22pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425 "2007-09-25T15:22:56Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![George\_Kaplin](https://avatars.discourse-cdn.com/v4/letter/g/3e96dc/32.png) [@George\_Kaplin](https://boards.straightdope.com/u/George_Kaplin)\ **Post date:** [September 25, 2007, 3:22pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/1 "2007-09-25T15:22:56Z")
Hi all. I was reading a GD thread called [Does Bill O’Reilly make more sense in this interview than Michael Moore?](http://boards.straightdope.com/sdmb/showthread.php?t=437467) and I was quite taken aback when I came across this line in a post by \*\*denquixote \*\*. > [@](#): > > Ninety-eight % of the world’s governments have decided that the death penalty is wrong and yet we still use it **and the Supreme Court has in fact ruled that actual innocence of a crime is insufficient to obtain a new trial.** I’ve bolded the important part. I was quite unaware of this and would be interested in learning the Supreme Court’s reasoning behind this ruling. Would anyone be able to point me towards some objective discussions of this particular ruling? P.S. - I’m just asking for cites pertaining to this particular ruling. I’d _really_ appreciate it if posters in this thread refrained from debating the merits of the death penalty. Thanks. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 25, 2007, 3:32pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/2 "2007-09-25T15:32:31Z")
[QUOTE=George Kaplin] P.S. - I’m just asking for cites pertaining to this particular ruling. I’d _really_ appreciate it if posters in this thread refrained from debating the merits of the death penalty. Thanks. [/QUOTE] IANAL and unsure of all pertinent case law but you might give [House v. Bell](http://www.law.cornell.edu/supct/cert/04-8990.html) a look. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 25, 2007, 3:35pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/3 "2007-09-25T15:35:16Z")
Actually [this link](http://www.questia.com/googleScholar.qst;jsessionid=G5pfcJvpTYr2QmmcGCQ9T6Dj5VVndtbkrTvHYKB2GYPGqw1GK0hh!-693957996?docId=5000409498) may prove more useful. Actually looks the the Supreme Court eased restrictions in this regard but I’ll leave it to the legal eagles for analysis. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [September 25, 2007, 3:37pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/4 "2007-09-25T15:37:31Z")
I have to run, but for the time being try to get the gist of this case: [Herrera v. Collins](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=506&page=390), 506 U.S. 390 (1993) (Or, if you’re in a hurry too, the [Wikipedia article](http://en.wikipedia.org/wiki/Herrera_v._Collins)). ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [September 25, 2007, 3:50pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/5 "2007-09-25T15:50:08Z")
We discussed this a bit starting in reply 66 in this thread: [http://boards.straightdope.com/sdmb/showthread.php?t=347150&page=2&pp=50&highlight=appeals](http://boards.straightdope.com/sdmb/showthread.php?t=347150&page=2&pp=50&highlight=appeals) ---
**Author:** ![Szlater](https://avatars.discourse-cdn.com/v4/letter/s/90ced4/32.png) [@Szlater](https://boards.straightdope.com/u/Szlater)\ **Post date:** [September 25, 2007, 3:55pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/6 "2007-09-25T15:55:00Z")
Apparently, it’s possible to “run out of appeals” and be forced to serve whatever sentence you have been handed even if you have proof of your innocence. [Krishna Maharaj](http://news.bbc.co.uk/1/hi/programmes/newsnight/6938440.stm) is in a prison in Florida, and is in such a position. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 25, 2007, 4:06pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/7 "2007-09-25T16:06:41Z")
[QUOTE=pravnik] I have to run, but for the time being try to get the gist of this case: [Herrera v. Collins](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=506&page=390), 506 U.S. 390 (1993) (Or, if you’re in a hurry too, the [Wikipedia article](http://en.wikipedia.org/wiki/Herrera_v._Collins)). [/QUOTE] Color me confused. How does the [Schlup v. Delo](http://www.law.cornell.edu/supct/html/93-7901.ZS.html) differ? They talk about it but I am not following exactly what they are on about. > [@](#): > > (From link above) > > (a) In contrast to the actual innocence claim asserted in Herrera v. Collins, 506 U. S. \_\_\_–that the execution of an innocent person convicted in an error free trial violates the Eighth Amendment-- Schlup’s claim is accompanied by an assertion of constitutional error at trial: the ineffectiveness of his counsel and the withholding of evidence by the prosecution. As such, his conviction may not be entitled to the same degree of respect as one that is the product of an error free trial, and his evidence of innocence need carry less of a burden. In Herrera, the evidence of innocence would have had to be strong enough to make the execution “constitutionally intolerable” even if the conviction was the product of a fair trial, while here the evidence must establish sufficient doubt about Schlup’s guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial. Pp. 14-18. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 25, 2007, 4:50pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/8 "2007-09-25T16:50:32Z")
I’m going from memory here, but IIRC \*Herrera \* held that actual innocence, by itself wasn’t grounds for federal habeas corpus relief–you have to allege two things: 1. Constitutional error at trial; and 2. The result might have been different if the error hadn’t occured (this is where proof of innocence is relevant) Herrera hadn’t shown any trial error, and instead argued that executing him when he was actually innocent, even though he had a fair trial, violated the Eigth Amendment. Schlup claimed that he was unconstitutionally denied the effective assistance of counsel at trial \*and \* that he was innocent. I’ve probably mucked up some of the verbal formulas involved, but I think that the gist of it. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 25, 2007, 5:22pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/9 "2007-09-25T17:22:34Z")
From _Schlup_: > [@](#): > > In Herrera, the petitioner advanced his claim of innocence to support a novel substantive constitutional claim, namely that the execution of an innocent person would violate the Eighth Amendment. 28 Under petitioner’s theory in Herrera, [SCHLUP v. DELO, \_\_\_ U.S. \_\_\_ (1995) , 15] even if the proceedings that had resulted in his conviction and sentence were entirely fair and error-free, his innocence would render his execution a “constitutionally intolerable event.” Id., at \_\_\_ (slip op., at 1) (O’CONNOR, J., concurring). > > Schlup’s claim of innocence, on the other hand, is procedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel, see Strickland v. Washington, 466 U.S. 668 (1984), and the withholding of evidence by the prosecution, see Brady v. Maryland, 373 U.S. 83 (1963), denied him the full panoply of protections afforded to criminal defendants by the Constitution. Schlup, however, faces procedural obstacles that he must overcome before a federal court may address the merits of those constitutional claims. Because Schlup has been unable to establish “cause and prejudice” sufficient to excuse his failure to present his evidence in support of his first federal petition, see McCleskey v. Zant, 499 U.S. 467, 493 -494 (1991), 29 Schlup may obtain review of his constitutional claims only if he falls within the “narrow class of cases . . . implicating a fundamental miscarriage of justice.” Id., at 494. Schlup’s claim of innocence is offered only to bring him within this “narrow class of cases.” > > Schlup’s claim thus differs in at least two important ways from that presented in Herrera. First, Schlup’s claim of innocence does not by itself provide a basis for [SCHLUP v. DELO, \_\_\_ U.S. \_\_\_ (1995) , 16] relief. Instead, his claim for relief depends critically on the validity of his Strickland and Brady claims. 30 Schlup’s claim of innocence is thus “not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera, 506 U.S., at \_\_\_ (slip op., at 13); see also 11 F.3d, at 740. 31 > > More importantly, a court’s assumptions about the validity of the proceedings that resulted in conviction are fundamentally different in Schlup’s case than in Herrera’s. In Herrera, petitioner’s claim was evaluated on the assumption that the trial that resulted in his conviction had been error-free. In such a case, when a petitioner has been “tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants,” 506 U.S., at \_\_\_ (slip op., at 2) (O’CONNOR, J., concurring), it is appropriate to apply an “`extraordinarily high’” standard of review. Id., at \_\_\_ (slip op., at 9) (O’CONNOR, J., concurring). 32 [SCHLUP v. DELO, \_\_\_ U.S. \_\_\_ (1995) , 17] > > Schlup, in contrast, accompanies his claim of innocence with an assertion of constitutional error at trial. For that reason, Schlup’s conviction may not be entitled to the same degree of respect as one, such as Herrera’s, that is the product of an error-free trial. Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim. However, if a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims. > > Consequently, Schlup’s evidence of innocence need carry less of a burden. In Herrera (on the assumption that petitioner’s claim was, in principle, legally well founded), the evidence of innocence would have had to be strong enough to make his execution “constitutionally intolerable” even if his conviction was the product of a fair trial. For Schlup, the evidence must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=513&invol=298](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=513&invol=298) Tip: It’s always a good idea to look at the opinion itself instead of the syllabus. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [September 25, 2007, 7:26pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/10 "2007-09-25T19:26:12Z")
So, to take the technical discussion and put it into layman’s terms, these cases aren’t about putting innocent people to death, but rather about whether or not and to what extent the federal courts can intervene into a state’s judicial system when the death penalty is involved and a claim is made that the convicted person is actually innocent. Two different things, though it might not seem that way to someone wrongly convicted and sitting on death row… :eek: ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 25, 2007, 7:43pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/11 "2007-09-25T19:43:22Z")
> [@](#): > > As strange – even Kafkaesque – as it may seem, after a criminal defendant has exhausted his direct appeals (those available as a matter of right), actual innocence won’t necessarily get him a new trial. This is an example of the principle of finality. Courts aren’t supposed to continually weigh and reweigh the evidence in a case. The jury or trial judge weighs the evidence once, and after that it becomes harder and harder to attack findings based on the evaluation of evidence. Once the appeals get used up, the judgment is final. You can’t just argue the jury got the wrong answer; instead you’ve got to show some sort of denial of constitutional rights or present new evidence that wasn’t previously available. [http://www.straightdope.com/mailbag/mwrongful.html](http://www.straightdope.com/mailbag/mwrongful.html) ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [September 25, 2007, 7:57pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/12 "2007-09-25T19:57:33Z")
These are the kind of cases that cry out for a pardon or commutation. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [September 25, 2007, 8:13pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/13 "2007-09-25T20:13:21Z")
Yes they are, which is exactly why we have given executives the powers of pardon or commutation. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 25, 2007, 8:20pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/14 "2007-09-25T20:20:12Z")
> [@](#): > > =Gfactor]As strange – even Kafkaesque – as it may seem, after a criminal defendant has exhausted his direct appeals (those available as a matter of right), actual innocence won’t necessarily get him a new trial. This is an example of the principle of finality. Courts aren’t supposed to continually weigh and reweigh the evidence in a case. The jury or trial judge weighs the evidence once, and after that it becomes harder and harder to attack findings based on the evaluation of evidence. Once the appeals get used up, the judgment is final. You can’t just argue the jury got the wrong answer; instead you’ve got to show some sort of denial of constitutional rights or present new evidence that wasn’t previously available. Maybe this needs to move to GD since the OP is answered but I have to admit I am more than a little appalled by this. I can certainly understand that courts need to have resolution to cases and leave them be. Bored prisoners would swamp the system more than it already is if they could continually revisit the evidence in their trial. Nevertheless I am appalled at the courts and justice system. There seems ample evidence of cases where there IS new evidence (such as DNA testing becoming available) and yet the courts still ignore it (see my cite of House v. Bell in my fist post in this thread). In another while reading around is this article on [Dretke v. Haley](http://writ.news.findlaw.com/lazarus/20040610.html). Apparently everyone (prosecutors and defendant) agrees this person is serving a sentence that is far too long yet they obstruct letting him out of jail. This is seriously messed up. Is there ANY part of “justice” left in the justice system or is it just this ogre of a machine that marches along regardless of truth or fairness? ---
**Author:** ![George\_Kaplin](https://avatars.discourse-cdn.com/v4/letter/g/3e96dc/32.png) [@George\_Kaplin](https://boards.straightdope.com/u/George_Kaplin)\ **Post date:** [September 25, 2007, 9:24pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/15 "2007-09-25T21:24:42Z")
Quality information there. Thanks a lot guys. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [September 26, 2007, 1:25am UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/16 "2007-09-26T01:25:39Z")
I cannot give a citation, but I recall a couple of years ago that the attorney general of Florida said he would oppose a new trial even if shown conclusive proof of innocence. He said it was just his job to do that. On the other hand, the Innocence Project has gotten some courts to reopen long decided cases by reanalyzing DNA evidence using modern methods. So some judges are interested in justice. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 26, 2007, 1:38am UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/17 "2007-09-26T01:38:40Z")
[QUOTE=Hari Seldon] I cannot give a citation, but I recall a couple of years ago that the attorney general of Florida said he would oppose a new trial even if shown conclusive proof of innocence. He said it was just his job to do that. [/QUOTE] It was in Wilton Dedge’s case, which is featured in the documentary After Innocence, and written up on the Innocence Project website. > [@](#): > > Some states, like Connecticut, enact case-specific statutes when they want to compensate an exoneree. Florida did this for Wilton Dedge in 2005 [PDF]. Dedge served 22 years of a life sentence for a rape all now concede he didn’t commit. To get relief, however, he first had to get himself exonerated. To do that, he had to convince judges to make new law and fight a justice system seemingly sworn to keep him in jail. After he won access to DNA testing, which then proved that pubic hair from the crime scene wasn’t his, the state argued that Dedge had obtained his DNA evidence too early – i.e., since he’d done so before Florida subsequently passed a law to govern the granting of such access, he couldn’t use the evidence to get back into court. Prosecutors continued to oppose Dedge’s motions on sundry procedural grounds for three years, and, according to the Innocence Project site, went so far as to admit in court that they would oppose Dedge’s release “even if they knew that he was absolutely innocent.” Nice group of people. [http://www.straightdope.com/mailbag/mwrongful.html](http://www.straightdope.com/mailbag/mwrongful.html) ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [September 26, 2007, 1:17pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/18 "2007-09-26T13:17:32Z")
A prosecutor’s ethical duty is to see that justice is done; it is not to fight tooth and nail to keep someone incarcerated whom you know to be innocent. When I was a prosecutor, I was just as happy to dismiss charges against someone that new evidence showed to be innocent, as I was to get a conviction against someone I was convinced was guilty. Too many prosecutors seem to forget, if you’ve got the wrong guy, the real criminal is still at large. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [September 26, 2007, 2:30pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/19 "2007-09-26T14:30:26Z")
[QUOTE=Elendil’s Heir] A prosecutor’s ethical duty is to see that justice is done; it is not to fight tooth and nail to keep someone incarcerated whom you know to be innocent. When I was a prosecutor, I was just as happy to dismiss charges against someone that new evidence showed to be innocent, as I was to get a conviction against someone I was convinced was guilty. Too many prosecutors seem to forget, if you’ve got the wrong guy, the real criminal is still at large. [/QUOTE] My sense is, and correct me if I am wrong, that many prosecutors see their job performance judged by how many people they throw in jail. If they can show a high prosecution rate all the better for them regardless if it is the right person. Finding later you got the wrong guy only hurts them so they fight tooth and nail to avoid it. I agree 100% with you that it should be as you mention. I just do not have the sense that this is how it always works. Certainly some will be respectful of the law and justice as you are but some others are not. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 26, 2007, 2:38pm UTC](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425/20 "2007-09-26T14:38:35Z")
> [@](#): > > Melvyn Bruder > Prosecutors in Dallas have said for years, “Any prosecutor can convict a guilty man: it takes a great prosecutor to convict an innocent man.” > **[Errol Morris: Film](http://www.errolmorris.com/film/tbl_transcript.html)** [Next page](https://boards.straightdope.com/t/legal-question-re-death-penalty-in-usa/420425.md?page=2)