420
O'Connor, J., concurring
the jury's verdict, demands a hearing in which to have his culpability determined once again. Ante, at 399-400.
Consequently, the issue before us is not whether a State can execute the innocent. It is, as the Court notes, whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial. Ante, at 407, n. 6; see ante, at 399-400. In most circumstances, that question would answer itself in the negative. Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent. Ante, at 398-399. The question similarly would be answered in the negative today, except for the disturbing nature of the claim before us. Petitioner contends not only that the Constitution's protections "sometimes fail," post, at 430 (dissenting opinion), but that their failure in his case will result in his execution—even though he is factually innocent and has evidence to prove it.
Exercising restraint, the Court and Justice White assume for the sake of argument that, if a prisoner were to make an exceptionally strong showing of actual innocence, the execution could not go forward. Justice Blackmun, in contrast, would expressly so hold; he would also announce the precise burden of proof. Compare ante, at 417 (opinion of the Court) (We assume, "for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim"), and ante, at 429 (White, J., concurring in judgment) (assuming that a persuasive showing of actual innocence would render a conviction unconstitutional but explaining that, even under such an assumption, "petitioner would at the very least be required to show that based
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