The nation's highest court hasn't directly addressed whether a claim of actual innocence can be made in late appeals, so federal appeals courts are left to their own interpretations. The 5th Circuit takes the easy route: it uniformly rejects them.
But, apparently, refreshingly, there's at least one member of the court who disagrees: Judge Wiener.
In concurring with the stay, he wrote a special statement after Monday's order to address what he called "the elephant" in the room.
Wiener writes that even though the U.S. Supreme Court never "expressly" recognized the right to claim actual innocence in late appeals, justices have made statements that suggest they view the truly innocent in the same light as the insane or the mentally retarded.
Wiener quotes Justice O'Connor: "I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution."
One would certainly think.
There's a very real possibility, Wiener writes, that the lower court to which Swearingen's case was returned "could view the newly discovered medical expert reports as clear and convincing evidence that he victim in this case could not possibly have been killed by the defendant."
I should note that when I wrote before about how our state leaders have always maintained that Texas has never executed a provably innocent man, there was already a strong possibility that they are wrong in this belief. There's the case of Cameron Willingham, executed in 1991 for setting a fire that killed his three children. Except that the forensic science used to prove the charge of arson was based on discredited procedures, and multiple experts who have reviewed the evidence today have all concluded the blaze was accidental. In a matter of propitious timing, the Texas Forensic Science Commission is getting close to rendering a final judgment on the matter.
Fire scientist Craig Beyler has been asked by the Texas Forensic Science Commission to conduct an independent review of the case's forensic evidence.
"He appears to be one of the pre-eminent people in the fire and arson investigation field," Samuel Bassett, an Austin attorney and commission member, said of Beyler.
Barry Scheck of the Innocence Project, a non-profit organization responsible for scores of DNA exonerations, called the hiring of Beyler an "encouraging sign" and said he hoped Beyler would be able to "get to the bottom" of the case that sent Willingham to a lethal injection.
"It's essential that this matter is resolved for the sake of those who have been wrongly convicted by unreliable arson evidence, as well as those under investigation in new arson cases," said Scheck, the Innocence Project's co-director.
The Forensic Science Commission was created in 2005 to investigate allegations of forensic error and misconduct in the country's busiest death-penalty state. The Willingham case is its first capital case.
Bassett said he hoped Beyler would be able to complete his review by early April. Beyler will write a report and may make recommendations to the commission.
It is not clear whether Beyler would conclude whether Willingham was innocent. Even if he finds that the science used at the time was flawed, as the other experts have, he may not take the next step and say Texas was wrong to execute Willingham, though that would be the clear implication.
"If [Beyler's report] is critical of the arson testimony," said Bassett, "then theoretically it's possible that could be the basis for a broader conclusion about the original conviction."