Unappealing Decision

THE United States Supreme Court's ruling this week involving convicted murderer Leonel Herrera represents one way to reconcile conflicting considerations: the circumstances under which a criminal can appeal a death sentence and the need to free federal courts of dubious, even frivolous appeals.

Unfortunately, the 6-to-3 decision rejecting Mr. Herrera's appeal could increase the risk that innocent people will be executed - capital punishment's biggest flaw. The ruling also throws back on the political process life-or-death decisions that need a more impartial hearing.

Herrera was convicted in Texas in 1982 for murdering two police officers. Last January, he filed a motion for a new trial in state court, based on what he claimed was new evidence proving that he was not guilty of the crime. The state courts rejected the motion; he had failed to file for a new trial within 30 days of his conviction.

Herrera argued before the high court that the state's time limit on filing for a new trial deprived him of his constitutional right to due process. He also contended that executing an innocent person violated the Constitution's ban on cruel and unusual punishment, which should be avoided at all costs.

The court rejected both arguments, noting that when new evidence appears after the deadline for seeking a new trial expires, one can still turn to the governor for clemency. The court left the door open to federal appeals based on new evidence - if that evidence was "truly persuasive," which is left undefined.

Herrera's evidence, not the strongest, consisted of statements from four people naming as the murderer someone who died in 1984. This would have been a tough case to retry. Even so, reducing access to the federal courts when for technical reasons state courts won't consider new evidence is too restrictive, given the death penalty's irreversibility. And throwing the decision back into the laps of the governors and clemency boards leaves the outcome uncomfortably vulnerable to swings in public opinion, esp ecially in emotionally charged cases.

Absent the abolition of capital punishment, which we strongly advocate, this week's ruling suggests at least two routes to reducing the likelihood - however small - of executing the innocent:

* Eliminate, at least for capital cases, time limits for requesting retrials to consider new evidence.

* Ease the standard of persuasiveness for new evidence in clemency requests. Governors and clemency boards should err on the side of caution.

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