Now and then a case comes along that tells us a lot about how close we are coming to executing innocent people in this country, and in substantial numbers-and about what will happen if Congress completes the evisceration of the writ of habeas corpus that is already under way in the Supreme Court.

One such case is that of Missouri death row inmate Lloyd Schlup. It took a revealing turn on Dec. 8, when a federal district judge found Schlup to be probably innocent-in the sense that "no reasonable juror would have convicted [Schlup] in light of the new evidence" now in the records-of the 1984 prison murder of which he was convicted. (Schlup was already in prison for two other crimes of (nonfatal) violence.) The judge found credible the recent testimony of 11 eyewitnesses and two alibi witnesses that Schlup was not even present during the murder.

This holding, by Judge Jean Hamilton of St. Louis (a George Bush appointee), is remarkable in several ways:

• The same Judge Hamilton had previously pushed Schlup down the track toward the death chamber without bothering to hold an evidentiary hearing in an August 1993 decision spurning his habeas appeal and vacating his stay of execution.

• Schlup would probably have been executed years ago if the habeas corpus "reforms" that were passed last year by both the Senate and the House (in somewhat different forms) had been in effect.

• Schlup would surely have been executed by now but for the efforts of his first good lawyer, Sean O’Brien of Kansas City, Mo., who did not get the case until six years after Schlup’s December 1985 conviction-and whom Congress is trying to put out of business.

• (O’Brien was head of the Missouri Capital Punishment Resource Center until last fall, when Congress cut off the federal funds that had sustained it and other offices supporting appeals of indigent death row inmates; he is now struggling to find the resources to stay in death row defense work as head of the newly created Public Interest Litigation Clinic.)

• Schlup can still be executed-even after convincing a federal court of his probable innocence-unless he can also prove that his 1985 trial was so unfair as to violate the Constitution.

The U.S. Supreme Court made this last point clear on Jan. 23, 1995, in Schlup v. Delo, which directed the lower federal courts to take a closer look at Schlup’s evidence of innocence, but at the same time saddled Schlup (and other habeas petitioners) with a heavy burden of proof:

A death row prisoner whose initial federal habeas corpus appeal has been blown by incompetent counsel-as in Schlup’s case and many others-can prevail in a successive appeal, the Court held, only if he can prove either that he had an unconstitutionally unfair trial (no easy task) or that newly discovered facts "unquestionably establish [his] innocence" (a virtually impossible task).

So if a prisoner can prove only that he is probably innocent, and cannot prove constitutional error at his trial, the state is free to execute him. So says the Supreme Court-in a decision that both the Senate and House have voted to overrule as too generous to death row inmates!

O’Brien must now try to convince Judge Hamilton (at a Jan. 26 hearing) that Schlup’s 1985 trial was flawed by ineffective assistance of counsel or suppression of exculpatory evidence. And Schlup is still sitting on death row.

When all this was explained to O’Brien’s 9-year-old daughter Haley, her reaction was understandable: "How many times does Dad have to win this case before it’s over?"

O’Brien has won it twice so far. But these partial victories came after a decade of rulings against Schlup, by both state and federal courts, that brought him to within hours of execution in November 1993. (The history of the case and the evidence are detailed in my article "He Didn’t Do It" in The American Lawyer, December 1994.)

Schlup’s case shows why the tough-on-crime crowd’s goal of speeding the pace of executions can be accomplished only by cutting off habeas appeals before defendants like Schlup can get the kind of lawyering necessary to show their innocence.

The underqualified, undercompensated, court-appointed lawyers who defend most capital cases at trial typically do little or no independent investigation of the facts. And the tiny band of really good death penalty defense lawyers focus on those of the 3,000 death row inmates who are closest to execution. So evidence of innocence often emerges years after conviction.

Schlup was convicted of the February 1984 murder of Arthur Dade after a two-day trial in December 1985. Dade, a black prisoner, was stabbed to death in a crowded cellblock by Robert O’Neal, a hit man for a white prison gang called the Aryan Brotherhood. (O’Neal was executed on Dec. 6, 1995.) Schlup’s conviction and death sentence rested on the testimony of two prison guards that they saw him holding Dade while O’Neal did the stabbing.

Glaring weaknesses in the prosecution’s case-suggesting that the guards did not see the stabbing at all-and powerful exculpatory evidence were not effectively exploited, either by Schlup’s court-appointed trial lawyer (who got $2,000 for fees and expenses) or by his first three court-appointed post-conviction counsel (who were paid little or nothing).

For almost eight years, for example, Schlup urged these four successive lawyers to confirm his story that he was not present during the murder by interviewing some of the more than two dozen prisoners who were there. Nor did any of these lawyers make effective use of a prison surveillance videotape that strongly supports Schlup’s alibi; it shows him calmly strolling into the cafeteria for lunch 65 seconds before the prison radio broadcast a distress call from the scene, some 400 feet away.

Schlup’s post-conviction counsel were pressured by execution-happy state judges to rush through the appeals without taking the time to investigate the facts. And under Supreme Court precedents, Schlup’s burden of proof became heavier as his lawyers frittered away his appeals.

It was not until Schlup’s mother found Sean O’Brien in late 1991 that the evidence of his innocence began to emerge. By mid-1993, O’Brien had shredded the credibility of the prosecution’s witnesses and hunted down more than 20 prisoner-eyewitnesses who signed affidavits swearing-with striking unanimity, across racial and gang lines-that Schlup was not present during the racially charged murder.

Even then, O’Brien could not get to first base with Judge Hamilton. In her initial, August 1993, decision, the judge took her cue from Supreme Court precedents suggesting that federal courts should give short shrift to successive habeas petitions.

She rejected O’Brien’s request for an evidentiary hearing; she termed the prisoner-eyewitnesses "suspect" because their affidavits had been produced years after the crime and because "inmates … do not necessarily have a strong incentive to refrain from perjuring themselves"; and she held that Schlup "has failed to make a persuasive showing of actual innocence."

Compare Judge Hamilton’s 18-page opinion on Dec. 8, 1995, after a three-day evidentiary hearing: She found 11 prisoner-eyewitnesses who testified that Schlup had not been present during the murder to be "credible in spite of their criminal histories"; she also credited the testimony of a former guard, Robert Faherty, who supported Schlup’s alibi by asserting that he had encountered Schlup far from the scene, en route to lunch; and she held that "[i]t is more likely than not that no reasonable juror would have convicted [Schlup] in light of the new evidence."

What a difference a three-day hearing makes.

But there would have been no hearing if the matter had been left to Judge Hamilton and the U.S. Court of Appeals for the 8th Circuit. It affirmed her August 1993 ruling against Schlup by a 2-1 vote, in an opinion that reads less like a careful inquiry into the facts than like a complaint about Schlup’s persistence in pestering the courts.

That would have been the end of the case, and of Schlup-who was scheduled for execution on Nov. 19, 1993, four days after the 8th Circuit ruling-but for Missouri Gov. Mel Carnahan’s last-minute decision to delay the execution. Then came the Supreme Court’s highly unusual decision not only to hear Schlup’s appeal, but also to conduct a detailed review of the evidence.

The Court’s 5-4 decision a year ago exuded concern that this death row inmate might very well be innocent. It was this concern that apparently won over the crucial fifth vote, Justice Sandra Day O’Connor, whose previous votes curbing habeas corpus review had helped bring Schlup close to execution, and whose ongoing hostility to habeas apparently explains why the Court’s ruling for Schlup was so narrow and grudging.

The holding was that the lower courts had put too heavy a burden on Schlup when they required him to prove his innocence by "clear and convincing evidence" in order to qualify for an evidentiary hearing. The justices held that on remand, Schlup should get a hearing if he could "show it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."

It is this holding that would be overturned by the habeas legislation now before Congress, which would (among other things) reinstate the "clear and convincing" standard that Judge Hamilton and the 8th Circuit had initially used to deny Schlup a hearing.

The bills passed by the House and Senate are numbingly complex. But the progress of Schlup’s case discloses their basic message: We want the likes of Lloyd Schlup executed-guilty or innocent.