Center on Wrongful Convictions

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.”