On Nov. 7, at about noon, the Supreme Court casually cleared the way for an execution at 9 o’clock that night-in the face of overwhelming evidence that the man to be killed was probably innocent of the prison murder for which he had been condemned.

All nine justices knew or had reason to know of Joseph Payne’s probable innocence. It would have been apparent to any fair-minded reader of the briefs and lower court opinions. These show that Payne’s conviction-charge of burning fellow prisoner David Dunford to death in his cell in 1985-hinged on the uncorroborated testimony of "an appalling and known prevaricator" (in the words of the U.S. Court of Appeals for the 4th Circuit) named Robert Smith, who was released from prison 15 years early, mainly for fingering Payne, and who has himself been named as the killer by four eyewitnesses and two others who heard Smith brag of having burned Dunford directly after it happened. (See "Innocent? Execute Anyway," Sept. 30, 1996, Page 29.)

Yet Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, and Stephen Breyer were prepared to let the commonwealth of Virginia kill Joe Payne anyway. Only Justices John Paul Stevens and Ruth Bader Ginsberg dissented from their colleagues’ no-comment denial of a stay of execution.

This willingness to allow the execution of a man who had proven his innocence-by at least a preponderance of the evidence-was a first in recent history. It provides a grim harbinger of what is to come.

As it happened, Payne escaped execution because Virginia Gov. George Allen-an ardent supporter of the death penalty-gave him executive clemency about three hours before his date with death, thanks to exceptionally good advocacy by Payne’s current lawyer, Paul Khoury of D.C.’s Wiley, Rein & fielding. (Payne was already serving a life sentence for an earlier murder that be did commit)

But the next probably innocent death row inmate spurned by the federal courts-and the next, and the next-may not be so lucky. "What this means," as Khoury says, "is that despite overwhelming evidence of innocence, the Supreme Court is going to be entirely willing to allow executions to proceed."

Under the law of federal habeas corpus laid down in two recent cases, if a death row inmate can prove only that he is probably innocent, the state is free to kill him.

In its murky 1993 decision in Herrera v. Collins, the Court left it an open question whether states can constitutionally execute convicts for crimes that they can prove they did not commit, while oiling that any such convict’s burden of proving innocence "would necessarily be extraordinary high."

How high? In Schlup v. Delo (1995), the Court held mat, absent proof of constitutional error at trial any claim of actual innocence "would have to fail unless the federal habeas court is itself convinced that… new facts unquestionably establish Schlup’s innocence." Tins suggests mat proving your innocence by a preponderance of the evidence would not be good enough.

So a death row inmate who can establish a 60-40 mathematical probability that he is innocent of any crime may ail be put to death unless me inmate can also carry me ma more difficult burden-of proving that his trial was constitutionally flawed. I find that amazing and deplorable.

Now if Justice Scalia were reading this, he might jump up and say something like "Hold on a minute, you ignoramus. You’re not making as argument of law, but spewing sentimental pap. This Court does not sit to make sum that no innocent person is ever executed. That’s somebody else’s job, as we indicated in Townsend v. Sain (1963). And as I said in my concurrence in Herrera (joined by Justice Thomas), ‘There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.’ "

Scalia also warned in Herrera that it would make life "harder for the lower federal courts" if prisoners were allowed to pester them with no better grounds for avoiding execution than proof of their innocence. Horrors!

Rehnquist’s majority opinion in Herrera exudes the same attitudes. While he stopped just short of ruling (as would Scalia and Thomas) that proof of innocence can never be the basis for federal habeas relief, this was only (it appears) because two of the five justices in the majority-O’Connor and Kennedy-were unwilling to go quite that far. They said in a concurrence (as the three dissenters contended with more cogency and conviction) that "the execution of a legally and factually innocent person would be a constitutionally intolerable event."

But did O’Connor and Kennedy really mean it? Or were they just ostentatiously washing their hands of the foreseeable consequences of the legal rules they were voting to adopt? The evidence-now including their votes to allow Joe Payne’s execution-suggests the latter.

The Court has suggested that its innocence-is-irrelevant habeas jurisprudence will not produce intolerable results, based on three facile assumptions: (1) that a defendant has received a "foil and fair trial" (in Rehnquist’s words) if he cannot prove some constitutional violation at trial; (2) that lower state and federal courts will root out injustices in post-trial reviews; and (3) that executive clemency is always available for those with evidence of innocence.

The third assumption is belied by the hazards that make most governors extremely reluctant to commute any death sentence in the current political climate (although Allen did commute Payne’s). The hollowness of the first two assumptions is demonstrated by the record in Payne’s case, and especially by Khoury’s eloquent petition for certiorari, which shreds the state’s case and documents outrageous derelictions of duty both by me prosecution and by me lower courts.

As the second slows, the courts haw made it so hard to prove constitutional error at trial-and some are so eager to rubber-stamp convictions and death sentences no matter how unfair the trial or how strong the evidence of innocence-that two state courts and two lower federal courts unanimously spurned Payne’s appeals even after being shown evidence that his trial was a travesty and his probable innocence was now manifest.

Constitutional violations? How about the evidence that the prosecution had strong (and undisclosed) reasons to know that Smith was probably perjuring when he testified against Payne? How about the evidence that the court-appointed defense lawyer was disgracefully unprepared and sloppy in examining key witnesses, failed to call potentially effective defense witnesses, and came across as "arrogant and unconvincing," in the words of a recent affidavit by Shelly Brydie Gray, a member of Payne’s jury?

Not good enough, said the lower courts, holding that the trial had been fair enough for them.

Juror Gray, on the other hand, has now sworn that "I did not want to convict Joseph Payne," because "the evidence against him was very weak," and that the evidence she has seen since then "makes me all the more sure of what I suspected at his trial: that Mr. Payne did not do this crime." Three other members of Payne’s jury, one alternate juror, and the victim’s mother also signed affidavits for the defense, all stating that after seeing evidence that was not used at trial, they now doubt Payne’ guilt.

But the state habeas judge, Thomas Warren of the Powhatan County Circuit Court, refused to consider-on the ground that "questions concerning credibility of trial witnesses were resolved by the jury"-what the 4th Circuit later acknowledged to be the "wealth of evidence," most of which the jury never heard, that Payne’s conviction was based on perjured testimony by Smith. Judge Warren also refused to consider (based on a curious interpretation of the hearsay rule) Smith’s 16-page sworn affidavit, taken in 1987 by Khoury (and later recanted by Smith), in which Smith admitted that his testimony against Payne had been a lie.

In Payne’s subsequent appeals, as Khoury’s petition says, "[t]he federal district court deferred to the state habeas court, which deferred to the jury, which did not see the evidence. The Fourth Circuit, also, deferred to the stale habeas court"-even though "its own recitation of the facts suggests Payne’s probable innocence and Smith’s probable guilt"

So much for the safeguards provided by the lower courts.

The Supreme Court has often been criticized- with some reason in years past-for littering the law with technicalities that enable defendants to escape conviction even when the evidence of guilt is clear. The Rehnquist Court has turned the tables with a vengeance, littering the law with technicalities that enable states to proceed with executions even when the evidence of innocence is clear.