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Larry Swearingen

Innocence

Lisa Falkenberg examines what Circuit Judge Jacques L. Wiener Jr. referred to as “the elephant in the room” in granting a stay of execution to Larry Swearingen.

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.”

That would represent a change in how the Court of Criminal Appeals has reacted to such evidence on Swearingen’s behalf previously, but I suppose one can hope. What else can you do?

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.”

That’s a fine distinction that unfortunately won’t do Cameron Willingham any good, but may perhaps spur the debate forward, and who knows, might even act as a catalyst for Larry Swearingen. The Chicago Tribune was the driving force behind the re-examination of Willingham’s case – you really should read their 2004 story, written ten months after Willingham’s execution, to get the full background. Thanks to Grits for the link to today’s story.

Swearingen gets a stay

Thank goodness.

Accused killer Larry Swearingen has been granted a second stay of execution.

The U.S. Court of Appeals for the 5th Circuit handed down the ruling this morning.

Swearingen was set to be executed by injection on Tuesday.

“We’re glad that someone has stepped in,” said Swearingen’s attorney James Rytting. “We think this is an extraordinary case of actual innocence. We’re hopeful that the federal courts will give the evidence a fair review.”

Swearingen has been on death row in the Polunsky Unit in Livingston since 2000. He was found guilty by a Montgomery County jury of kidnapping, raping and strangling 19-year-old Melissa Trotter on Dec. 8, 1998.

Monday’s ruling is the second time Swearingen has been given a reprieve. The Texas Criminal Court of Appeals granted him a stay on Jan. 23, 2007, one day before his scheduled execution date.

[…]

In granting Swearingen another stay of execution, the federal appeals court said his due process rights were violated because his trial attorney failed to develop evidence from Trotter’s body tissue and did a poor job in cross examining [former Harris County medical examiner Dr. Joye] Carter. The panel also found that the state sponsored “false and misleading forensic testimony regarding when Trotter’s body was left in the forest.”

The same arguments were rejected by the state court.

Circuit Judge Jacques L. Wiener Jr. wrote a concurring statement, he said, “to address the elephant that I perceive in the corner of this room: actual innocence.”

Wiener said he sees a “real possibility” that the district court could view the new evidence “as clear and convincing evidence that the victim could not have been killed by the defendant.”

He noted, however, that lower federal courts dealing with actual innocence claims might have to deny relief to someone who is actually innocent because of existing Supreme Court rulings.

The appeal will now go back to a federal district judge for review.

Go read the Texas Monthly story if you haven’t already to review the details. Note how once again, a federal appeals court has slapped our morally bankrupt Court of Criminal Appeals for its indifference to due process and exculpatory evidence. What really needs to happen here is for Swearingen to get a new trial, but at least the executioner has been avoided for now. Kudos to the FIfth Circuit Court of Appeals and to Attorney Rytting.

More on Larry Swearingen

I’ve blogged before about Larry Swearingen, who is on death row and is scheduled for execution on January 27 even though forensic evidence clearly demonstrates his innocence of the murder of Melissa Trotter. Multiple experts, including the Harris County medical examiner who originally testified against him at his trial, now say that Trotter’s body was dumped while Swearingen was sitting in a jail cell. Yet the Court of Criminal Appeals, that bastion of injustice and illogic, has refused to order a new trial. It’s appalling, and is going to be a huge, avoidable tragedy if nothing happens to prevent it.

Now the Chron’s Lisa Falkenberg has picked up on the Texas Monthly story about Swearingen. She adds a few new details, including this:

Attorneys with the New-York based Innocence Project are also working feverishly on requests for DNA testing on the panty hose, Trotter’s clothing and more blood scrapings. They plan to appeal to Gov. Rick Perry’s office for a stay, and have unsuccessfully tried to get newly elected Montgomery County District Attorney Brett Ligon to support a request for DNA testing.

Ligon didn’t return my call. Marc Brumberger, who handles the office’s appeals, said the new evidence doesn’t prove Swearingen didn’t kill Trotter. It only “throws in the prospect” that Swearingen may have initially refrigerated or frozen her body, then had help from an accomplice moving it into the woods while he was in jail.

[Swearingen’s attorney James] Rytting calls that far-fetched theory “guilt by imagination.” He said the DA’s office is grasping for explanations now that their case is crumbling.

“Their case is a lie and they’re going to kill him anyway,” Rytting says.

I shouldn’t be by now, but I continue to be amazed at how utterly pigheaded some DA’s offices can be about this. Have we learned nothing from Dallas’ experience? Let me put this in the simplest terms I can, simple enough that even Brett Ligon and Mark Brumberger can understand it: The actions of the Montgomery County District Attorney’s office will enable a murderer to walk free and possibly to kill again. Even if you don’t care about Larry Swearingen, you ought to care about that.