Paris Hoyt CARRIGER, Petitioner-Appellant, v. Terry L. STEWART, Respondent-Appellee

ORDER

We have reconsidered Carriger’s appeal in light of Thompson v. Keohane, — U.S. -, 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995), and the parties’ further submissions. The opinion filed November 29, 1995, is withdrawn. A substitute opinion is filed concurrently.

OPINION

Paris Hoyt Carriger is a death row inmate in Arizona. We consider several of his claims, including whether he has met the burden of showing actual innocence articulated in Herrera v. Collins, 506 U.S. 390 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993).

I

The petitioner in Herrera argued that it would be unconstitutional to execute him because new evidence showed he was innocent of his crime. The Court did not decide whether such a claim could ever succeed; it ruled only that Herrera had failed to make “a truly persuasive demonstration of actual innocence.” Id. at 417 , 113 S.Ct. at 869 ; see also id. at 426-28, 113 S.Ct. at 874 (O’Connor, J., concurring, joined by Kennedy, J.).

It is therefore still an open question whether the government may execute someone for a crime he can prove he did not commit. The Supreme Court has made clear, however, that, for such a claim to ever be successful, the defendant’s burden of…