Did This Dude Do It?

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Herrera’s last statement....

.....................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.................

Leonel Torres Herrera
(September 7, 1947 – May 12, 1993)

was sentenced to death for murdering two Texas police officers, David Rucker and Enrique Carrisalez. The murders occurred on September 29, 1981 at separate locations along a highway between Brownsville and Los Fresnos.

Enrique Hernandez, Carrisalez’ patrol car partner, identified Herrera. Hernandez also said Herrera was only person in the car that they stopped. Carrisalez, who did not die until 9 days after he was shot, identified Herrera from a single photo. A license plate check showed that the stopped car belonged to Herrera’s live in girlfriend.

In 1984, after Herrera’s brother Raul was murdered, Raul’s attorney came forward and signed an affidavit stating that Raul told him he had killed Rucker and Carrisalez. A former cellmate of Raul also came forward and signed a similar affidavit. Raul’s son, Raul Jr., who was nine at the time of the killings, signed a third affidavit. It averred that he had witnessed the killings. Jose Ybarra, Jr., a schoolmate of the Herrera brothers, signed a fourth affidavit.

Ybarra alleged that Raul Sr. told him in 1983 that he had shot the two police officers. Herrera alleged that law enforcement officials were aware of Ybarra’s statement and had withheld it. Armed with these affidavits, Herrera petitioned for a new trial, but was denied relief in state courts. One court did dismiss Herrera’s claim of evidence withheld due to lack of evidence. Herrera’s appeal eventually reached the U.S. Supreme Court, where it was argued in October 1992.

In January 1993, the U.S. Supreme Court ruled that Herrera's claim of actual innocence was not a bar to his execution. He had to show that there were procedural errors in his trial in order to gain relief. Justice Rehnquist wrote that the "presumption of innocence disappears" once a defendant has been convicted in a fair trial. Dissenting Justice Blackmun wrote: "The execution of a person who can show that he is innocent comes perilously close to simple murder." Herrera was executed by lethal injection on May 12, 1993, four months after the ruling.

Herrera declined a last meal. His final statement was:

“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.”


Source: Court docs

On the evening of September 29, 1981, at approximately 10:40 p.m., the body of Texas Department of Public Safety Officer David Rucker was discovered 6.2 miles east of Los Fresnos, Texas. Rucker was killed by a gunshot wound to the head. There were no witnesses to the shooting. Herrera's social security card, however, was discovered near the body. Ten minutes later, Los Fresnos police officer Enrique Carrisalez stopped a speeder traveling west on the road from where Rucker's body was found. Carrisalez parked on the shoulder with his headlights illuminating the driver's side of the speeding car. Carrisalez radioed the driver's license plate number to the dispatcher.

As Carrisalez approached the car which had been stopped, the driver of that car stepped toward Carrisalez and fired one or more shots. Carrisalez was shot in the chest. He died nine days later from the wound.

Civilian Enrique Hernandez was accompanying Carrisalez on the night of the shooting. Hernandez witnessed the shots fired on Carrisalez, and immediately took cover on the seat of the patrol car. When Hernandez looked over the dashboard again, he saw Carrisalez fire four shots as the car which had been stopped sped away. Hernandez radioed in a description of the suspect's automobile. Almost immediately afterwards, Hernandez was interviewed by police officers. A few hours later, on the morning of September 30, Hernandez gave a statement to Texas Ranger Bruce Casteel. The police then proceeded to obtain an arrest warrant for the as yet unidentified suspect.

Also on the morning of September 30, Hernandez was called to the Harlingen police station and shown a display of six photographs. Hernandez picked out three photographs and said that anyone of them could have been the killer; a photograph of Hernandez was among those selected.

The next afternoon, two officers went to the hospital room of Officer Carrisalez. The officers showed Carrisalez one photograph of Herrera and asked Carrisalez three times if he could identify it. Although Carrisalez was unable to speak, he nodded his head, thereby identifying Herrera as the assailant. Later in the day, Hernandez was shown the same photograph. He too positively identified Herrera as the gunman. The photograph was a mug shot that carried the notation "Edinburg Police Department."

On October 4, Herrera was apprehended. Two days later, Hernandez picked Herrera's photograph from a second photo lineup. The photograph of Herrera used in this instance was not the same photograph earlier shown to both Carrisalez and Hernandez.

Finally, on October 24, Hernandez picked Herrera out of a five person live lineup.


Source: Court docs:

Herrera never identifies any specific evidence that he contends was withheld by the prosecutor before trial. Instead, he relies on affidavits and newspaper clippings to suggest that the prosecutor knew that Raul Herrera, rather than Leonel Herrera, committed the murders. Nothing in any of the exhibits suggests, however, that the prosecutor could have known of the information contained within them at the time of Herrera's trial.

The newspaper clippings upon which Herrera relies make no reference at all to the instant case and do not refer to police corruption in connection with drug activity in South Texas prior to 1985--three years after Herrera's trial. Further, they contain nothing to suggest that anyone who testified at his trial or any officials in Cameron County, where Herrera was convicted, have ever been involved in any wrongdoing. The affidavit of Raul Herrera, Jr., states that he told a police officer that his father committed the murders rather than Petitioner, but he does not say when or to whom this information was conveyed. Consequently, Herrera has not pled with sufficient particularity the elements of his Brady claim to require a hearing.

Moreover, the exculpatory evidence on which Herrera relies is a claim that someone else, and not he, committed the offenses of which he was convicted. The person at whom he points the finger is his brother, Raul, now deceased. Particularly in light of the fact that his brother allegedly committed the offense in the car which Petitioner normally drove, this information clearly was not only available to the defense, but was likely more available to the defense than it was to the prosecution. "Brady does not oblige the government to provide the defendants with evidence that they could obtain from other sources by exercising reasonable diligence."

"When evidence is available equally to the defense and the prosecution, the defendants must bear the responsibility for their failure to diligently seek its discovery." Herrera's attempt to couch this claim in terms of a Brady violation therefore is disingenuous.

As a part of his first claim, Herrera contended that he was actually innocent of Carrisalez's murder. Herrera filed a substantially identical claim in the state habeas court. In support of his state habeas claim, Herrera attached two affidavits. First, he attached the affidavit of attorney Hector J. Villareal, who had represented petitioner's brother, Raul Herrera, on a charge of attempted murder. Villareal asserted that Raul Herrera confessed to him that Raul, not petitioner, murdered both Rucker and Carrisalez. Herrera also submitted the affidavit of Franco Palacios, one of his brother Raul's cell mates. Palacios stated that Raul confessed to him that Raul had murdered Rucker and Carrisalez.

When Herrera filed his federal habeas petition, he attached two additional affidavits. The most significant affidavit he attached is the affidavit of his nephew, Raul Herrera, Jr., the son of Raul Herrera. Raul Herrera, Jr. stated that he was with his father on the date of the murders and that he saw his father kill both Rucker and Carrisalez. According to Raul Herrera, Jr., the petitioner was not present when the murders occurred. Raul, Jr. also stated that he told a police officer what occurred but the officer told him never to repeat it. Raul, Jr. did not suggest when this conversation occurred. Raul, Jr. stated that no attorney representing the petitioner had ever asked him about the events until recently. His affidavit is dated about two weeks ago, January 29, 1992. Petitioner also included the affidavit of an old schoolmate of the Herrera brothers, who related that Raul, Sr. made a confession to him similar to the one attorney Villareal asserted that Raul had made.

In his federal habeas petition, Herrera asserted that he was entitled to a hearing on his actual innocence claim, particularly in light of Raul Herrera, Jr.'s affidavit. The district court concluded that petitioner should have an opportunity to present the affidavit of the alleged eye witness, Raul Herrera, Jr. The district court then granted the petitioner's stay of execution and retained jurisdiction of the petitioner's "actual innocence" claim until noon, February 21, 1992. The district court directed that it would dismiss that claim without prejudice on February 21, 1992, provided petitioner had filed a successive state habeas petition so that he could present the additional evidence to that court.

Herrera raises the following claims in the instant habeas petition:

1. The State's failure to reveal exculpatory evidence resulted in the conviction and sentence of an innocent person, in violation of the Sixth, Eighth, and Fourteenth Amendments. Petitioner is innocent, another person has confessed to the crime, and the Petitioner's execution would violate the Eighth and Fourteenth Amendments

2. Petitioner was tried and sentenced to death for the murder of two police officers by a jury whose members included a police officer detective in an office that investigated the case, in violation of the Petitioner's Sixth, Eighth, and Fourteenth Amendment rights

3. During trial, recesses, and juror deliberations, juror-police officer Bressler was armed, and at least one juror noticed; in addition, and contrary to his sworn statements during voir dire, this officer knew one of the victims. These facts reveal that Petitioner's conviction and death sentence occurred in violation of his Sixth, Eighth, and Fourteenth Amendment rights

4. Petitioner's sentencers were precluded from considering evidence which counseled in favor of a sentence less than death, in violation of Petitioner's Sixth, Eighth, and Fourteenth Amendment rights

5. The trial judge wrongfully refused to allow Petitioner to speak at all during Petitioner's trial and capital sentencing proceeding, thereby violating Petitioner's federal Constitutional rights


Source: Center on Wrongful Convictions
Northwestern University School of Law

Executed in Texas on May 12, 1993, for a murder that in all likelihood was committed by his brother. After Herrera was sentenced to death for the crime for which he was executed, he pled guilty to the murder of a second officer. The officers were shot to death in separate incidents near Los Fresnos on September 29, 1981. Herrera, who had no criminal record, became a suspect because his Social Security card was found near the scene of one of the shootings and because a witness to the other shooting gave police the license number of the car used in the shooting. The car was registered to Herrera, who was arrested at the home of friends. He was convicted of one of the two murders based on an in-court identification by the witness who had seen the car used in that shooting and by testimony that the officer, as he lay dying in a hospital, had identified Herrera as the man who shot him. Herrera then pled guilty to the second murder. Twelve years later, Herrera was executed despite new evidence indicating that his brother, Raúl Herrera, had slain the officers. The evidence of Leonel’s innocence and Raúl’s guilt — affidavits from, among others, the brother’s son, former attorney, and a former cellmate — came to light after Leonel had lost his state and federal appeals and after Raúl had died. The affidavit of Raúl’s son stated that he (the son) was present in the car when his father shot both officers to death. The affidavits of the attorney and cellmate said that Raúl had admitted both murders. Based on the affidavits, Lionel Herrera filed a petition for a state writ of habeas, claiming that he was innocent of both murders. After that was denied, he filed a successor petition for a federal writ of habeas corpus, which also was denied. The U.S. Supreme Court granted certiorari and held that a freestanding claim of actual innocence is not a ground for federal habeas relief. Justice Harry Blackmun wrote in a dissenting opinion joined by Justices John Paul Stevens and David H. Souter: “Nothing could be more contrary to contemporary standards of decency . . . than to execute a person who is actually innocent. . . . The execution of a person who can show that he is innocent comes perilously close to simple murder.”

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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.

[OhJstFkOffAlrdy]

The last two paragraphs of the OP are just as disturbing as the specifics of Herrera's particular case in that the courts are essentially claiming precedence over the truth provided proper trial and judicial procedure are followed. I had read Justice Rehnquist's assertion regarding the irrelevance of an "actual innocence" claim years ago, so this post covering the specifics of that which inspired it is most enlightening.

To answer the question, he was probably innocent; but whether or not Leonel Herrera actually did it matters less to me than the fact that the jury was tainted and Herrera was denied his right to address the court following his conviction. Those two facts alone run counter to the critical assumption at the heart of Rehnquist's conclusion that Herrera's trial had been properly conducted.

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and aint that jaw dropping to think of how law and justice sometimes cannot meet.....

[OhJstFkOffAlrdy]

Years ago, I would have said yes. But my old ex-lawyer pop once told me that with regards to the courts, "justice is not about right amd wrong; justice is about what you can prove."

I understand why justice is compelled to disregard claims of "actual innocence" post-conviction, because evidently prisons are full of innocent peoole (if you ask the inmates, that is). But when those claims can be backed up by substantial evidence, then logic would dictate that the courts take notice and find accordingly.

I can still remember the first time I ever heard of an Alford plea, which essentially states that while the defendant maintains his or her innocence, they nevertheless acknowledge that the state has built a strong enough case to in all likelihood win a conviction.

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So True:
As Much As The General Public Wants To Believe ..
The Courts (U.S.) Is Not In The Practice Of "FACT FINDING" But Rather What A Jury Can Agree With!