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The Supreme Court pondered Wednesday whether it is unconstitutional to execute someone who might be innocent.

It's not, argued Margaret Griffey, assistant attorney general of Texas, without conceding that the convicted cop killer in the complex case is, indeed, innocent.To decide otherwise, she warned, would require a federal hearing on every death row inmate's last-minute claims of long-lost witnesses and uncovered alibis, and create chaos in the judicial system.

But Talbot D'Alemberte, lawyer for the inmate seeking a hearing on new evidence he says will clear him, argued that putting an innocent person to death would violate both the Eighth Amendment's ban of cruel and unusual punishment and the 14th Amendment's guarantee of due process under the law.

``The greatest injustice would be the execution of an innocent person,' D'Alemberte told the court.

During spirited questioning, the justices seemed intrigued by the case, Herrera vs. Collins, which began more than a decade ago on a September night in Hidalgo County, Texas. Two policemen were shot that evening. A few days later, Leonel Torres Herrera was charged with killing them.

On the basis of a range of evidence, including the account of a witness and bloodstained jeans found in his laundry room, Herrera was convicted in 1982 of killing one of the officers. The next year, he pleaded guilty to the other killing.

He was sentenced to death.

Last February, after being turned down in state court, Herrera filed for a federal hearing on what he claimed was new evidence that could prove his innocence. It consisted largely of affidavits from relatives who swore the murders were actually committed by Herrera's brother, Raul, who had himself been killed in 1984.

A federal judge agreed to delay the execution until the new evidence could be considered, but he was overturned by an appeals court. The Supreme Court agreed to hear the case but did not grant a stay of execution. However, a Texas judge stopped Herrera's sentence of death from being carried out until the court issues an opinion. Texas has a 30-day limit on filing claims of new evidence after a trial ends in conviction.

But D'Alemberte said the limit was unjust. ``I believe innocence is a value that trumps all time limits,' he said. ``Many times we don't learn until many years later of actual innocence.'


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