Justice O'Connor wrote a concurring opinion. Although she joined the majority opinion, in her concurring opinion, O'Connor wrote that "the execution of a legally and factually innocent person would be a constitutionally intolerable event." Dispositive for Justice O'Connor, however, was that "was not innocent in any sense of the word." O'Connor took the position that Herrera could not be "legally and factually innocent" because he "was tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants. At the conclusion of that trial, the jury found guilty beyond a reasonable doubt." O'Connor reiterated the majority's conclusion that the execution of an innocent person was not unconstitutional by assuming that there was no constitutional issue raised: