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Before Schlup, a habeas corpus petitioner could go through the appeals process only once. Everything has to be right, because the system, according to O'Brien, "gives you just one bite at the apple." Because of this, Schlup was to be executed for Dade's death although the preponderance of evidence pointed to Schlup's innocence. But the U.S. Supreme Court heard Schlup's case and overturned the death sentence on an old legal principle called the Actual Innocence Test, built upon years of Supreme Court case law. That law allowed convicts to challenge their cases after their appeals were over.
But the 1996 Anti-Terrorism and Effective Death Penalty Act, passed in the hysteria surrounding the Oklahoma City bombing, canceled out the legal gains made with the Schlup case, which strengthened the Actual Innocence Test. The law again limits convicts to the appeals process under federal habeas corpus.
When Schlup was up for a new trial in 1994, Nixon's office offered Schlup a second degree murder charge with a life sentence. The new sentence would not interfere with Schlup's ability to petition for parole in 2003 on his original first degree assault charge. He took the deal.
Holste points to Schlup's second degree conviction in the Dade murder as an indication that Attorney General Nixon was right to fight the new evidence. Nixon, he says, would not be a party to an execution of someone he believes is innocent. "In looking at the 34 executions since Nixon has been attorney general (he was elected in 1992), there has been no doubt in his mind that the people who were executed committed a crime and that the sentence was justly carried out," Holste says. "We certainly believe that the appeals system contains sufficient safeguards, as has been shown by the cases that have been remanded for resentencing or retrial. We believe the courts are doing the job that they are supposed to do."
O'Brien believed Schlup was innocent from the beginning. The second degree conviction carries little weight in determining the correctness of Nixon's actions. "If I were in Lloyd's position, I would have taken what they offered," he says. "They wanted Lloyd to take the stand and say he did it. But this way, it allowed Nixon to save face. The result was seemingly ambiguous, but not for Lloyd, who is more in control of his own destiny now and will be out someday."
Then, there is Ed "Butch" Reuscher, who was on death row for six years for no good reason, says O'Brien. "His original lawyer screwed him bad," O'Brien says. "We literally pulled his fat from the fire. It was looking grim for him as he neared the end of his appeals process. But we were able to get him a new trial." Reuscher was on death row for his part in the murder of Bobby Wood, who was beaten to death.
One drunken evening in the winter of 1984, Reuscher, Wood, and Ken Melton got into a fight in Kansas City's Northeast area in which Melton shot and wounded two people. They went to Wood's house in Clay County to get Wood's car to drive to Florida until the heat subsided. Woods was asleep on the floor when Melton attacked him. Both Melton and Reuscher were fall-down drunk at the time.