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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-7328
- --------
- LEONEL TORRES HERRERA, PETITIONER v. JAMES
- A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF
- CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
- on writ of certiorari to the united states court
- of appeals for the fifth circuit
- [January 25, 1993]
-
- Justice Scalia, with whom Justice Thomas joins,
- concurring.
- We granted certiorari on the question whether it
- violates due process or constitutes cruel and unusual
- punishment for a State to execute a person who, having
- been convicted of murder after a full and fair trial, later
- alleges that newly discovered evidence shows him to be
- -actually innocent.- I would have preferred to decide that
- question, particularly since, as the Court's discussion
- shows, it is perfectly clear what the answer is: There is
- no basis in text, tradition, or even in contemporary
- practice (if that were enough), for finding in the Constitu-
- tion a right to demand judicial consideration of newly
- discovered evidence of innocence brought forward after
- conviction. In saying that such a right exists, the dissent-
- ers apply nothing but their personal opinions to invalidate
- the rules of more than two thirds of the States, and a
- Federal Rule of Criminal Procedure for which this Court
- itself is responsible. If the system that has been in place
- for 200 years (and remains widely approved) -shocks- the
- dissenters' consciences, post, at 1, perhaps they should
- doubt the calibration of their consciences, or, better still,
- the usefulness of -conscience-shocking- as a legal test.
- I nonetheless join the entirety of the Court's opinion,
- including the final portion (pages 26-28)-because there
- is no legal error in deciding a case by assuming arguendo
- that an asserted constitutional right exists, and because
- I can understand, or at least am accustomed to, the
- reluctance of the present Court to admit publicly that Our
- Perfect Constitution lets stand any injustice, much less
- the execution of an innocent man who has received,
- though to no avail, all the process that our society has
- traditionally deemed adequate. With any luck, we shall
- avoid ever having to face this embarrassing question
- again, since it is improbable that evidence of innocence as
- convincing as today's opinion requires would fail to
- produce an executive pardon.
- My concern is that in making life easier for ourselves
- we not appear to make it harder for the lower federal
- courts, imposing upon them the burden of regularly
- analyzing newly-discovered-evidence-of-innocence claims in
- capital cases (in which event such federal claims, it can
- confidently be predicted, will become routine and even
- repetitive). A number of Courts of Appeals have hitherto
- held, largely in reliance on our unelaborated statement in
- Townsend v. Sain, 372 U. S. 293, 317 (1963), that newly
- discovered evidence relevant only to a state prisoner's
- guilt or innocence is not a basis for federal habeas corpus
- relief. See, e.g., Boyd v. Puckett, 905 F. 2d 895, 896-897
- (CA5), cert. denied, 498 U. S. 988 (1990); Stockton v.
- Virginia, 852 F. 2d 740, 749 (CA4 1988), cert. denied, 489
- U. S. 1071 (1989); Swindle v. Davis, 846 F. 2d 706, 707
- (CA11 1988) (per curiam); Byrd v. Armontrout, 880 F. 2d
- 1, 8 (CA8 1989), cert. denied, 494 U. S. 1019 (1990);
- Burks v. Egeler, 512 F. 2d 221, 230 (CA6), cert. denied,
- 423 U. S. 937 (1975). I do not understand it to be the
- import of today's decision that those holdings are to be
- replaced with a strange regime that assumes permanently,
- though only -arguendo,- that a constitutional right exists,
- and expends substantial judicial resources on that assump-
- tion. The Court's extensive and scholarly discussion of the
- question presented in the present case does nothing but
- support our statement in Townsend, and strengthen the
- validity of the holdings based upon it.
-