Tuesday, February 28, 2012

Executing innocents still okay after SCOTUS cert denial; will Texas take them up on it?

Like Pontius Pilate washing his hands of the dispute, the US Supreme Court yesterday declined to consider the question of whether the US Constitution permits the execution of an innocent person if the government has not violated their due process rights. The issue could have been taken up in the Texas death-penalty case of Larry Swearingen, but SCOTUS denied cert (i.e., they refused to hear it). Reports Bloomberg News:
Questions about the constitutionality of executing an innocent person are a “brooding omnipresence” in federal law that have “been left unanswered for too long,” Judge Jacques Wiener wrote in a 2009 ruling on Swearingen at the New Orleans- based 5th U.S. Circuit Court of Appeals. Swearingen’s appeal “might be the very case” for the Supreme Court “to recognize actual innocence as a ground for federal habeas relief,” Wiener wrote.

Swearingen was sentenced to die for the murder of 19-year- old Melissa Trotter, a college student who disappeared on Dec. 8, 1998, and was missing for 25 days before her body was discovered in Sam Houston National Forest, north of Houston.

Swearingen, who knew Trotter and was seen with her on the day she disappeared, was considered a suspect early in the police investigation. He was arrested Dec. 11, 1998, on unrelated warrants and has been in jail ever since.

Swearingen’s lawyers say forensic specialists -- including the medical examiner who testified for the prosecution -- have looked at evidence that wasn’t considered at Swearingen’s trial and now agree that Trotter’s body was placed in the forest no earlier than Dec. 18, 1998, a week after Swearingen’s arrest.

More than that, Swearingen’s lawyers say medical examiners who looked at tissue samples say Trotter’s internal organs were in a condition suggesting that she was killed no more than several days before her body was found.

The Innocence Network, an umbrella group of more than 60 organizations that helps prisoners uncover favorable evidence, said in a friend-of-the-court brief that Swearingen has “an airtight alibi -- he was in jail when the victim was murdered.”

Imposing the death penalty on someone who isn’t guilty of a capital crime, Swearingen’s lawyers said, would violate the Eighth Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s due process protections.

Texas authorities said strands of Trotter’s hair were found in Swearingen’s truck, and fibers matching Swearingen’s jacket, bedroom carpet and truck upholstery were found on Trotter’s clothing. Cleaning Swearingen’s trailer after Trotter’s body was discovered, the suspect’s landlord found part of a torn pair of pantyhose that, prosecutors said, matched hosiery used to strangle the victim.

Swearingen’s case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate’s rights have been violated.
For readers interested in more detail, Jordan Smith at the Austin Chronicle last year had an excellent, detailed article explicating the new forensic evidence in the case.

The question is, can habeas corpus reviews by appellate judges only examine procedural questions or if defendants can ask for relief simply based on actual innocence, as in, "I didn't do it." The issue is most poignant in capital cases like Swearingen's where the punishment is permanent, but the implications are even more far reaching.

While it almost seems offensive to say the Constitution permits the execution of an innocent person, as Bloomberg News put it, "as the law now stands, even uncontested scientific proof of innocence isn’t a valid reason for a federal judge to stop an execution." It remains thus with this disappointing SCOTUS non-decision. (Of course, the Constitution's authors envisioned that a robust pardon power would prevent such injustices, but Goveror Rick Perry's pardon record provides only glimmers of hope that that might happen in Swearingen's case.)

In addition to the hot-button culture-war question of whether the Constitution permits executing the innocent, Swearingen's case also implicates Texas habeas law. The Court of Criminal Appeals belatedly ordered a hearing on the new scientific evidence, which coincidentally began in Houston yesterday. Reported the Houston Chronicle:
An expert entomologist testified for the defense Monday that insect evidence used in Swearingen's murder trial was improperly collected and stored, making it impossible to correctly estimate the time of death of the 19-year-old victim, Melissa Trotter.

The testimony came during a hearing ordered by the Texas Court of Criminal Appeals after it granted Swearingen a reprieve on July 28. He was set to die by lethal injection on Aug. 18.

State District Judge Fred Edwards must review new evidence dealing with heart and liver tissue and a due process violation. Edwards will submit his findings to the appeals court, which will decide if Swearingen should receive a new trial.
Depending on the outcome of that hearing, perhaps this case will give the CCA an opportunity to overturn their despicable misstep in Ex Parte Robbins.

What a remarkable case. SCOTUS chickened out on addressing perhaps the most high-stakes question in constitutional law, which leaves the matter in the hands of the Texas Court of Criminal Appeals, and thereafter quite literally at the mercy of the Board of Pardons and Paroles and Gov. Perry.

This is not the Todd Willingham case where new expert testimony was elicited at the last moment when courts and the Governor had little time to consider it. If Swearingen is executed despite hard scientific evidence of actual innocence, it will have happened following a slow, deliberate process whereby, from Washington to Austin, those responsible for ensuring the integrity of the system chose to look the other way.


Anonymous said...

I don't know that comparing Larry Swearingen to Jesus is appropriate, Grits.

rodsmith said...

Question is did anyone expect any different result!

They can NEVER admit they have killed an INNOCENT! Especialy when the govt's own numbers say at least 10% of the millions involved in our criminal justice sytem are FACTUALLY INNOCENT!

What cracks me up is they honestly think we are stuid enough to belive they haven't!

ckikerintulia said...

Anonymous 9:17--picky picky picky. Grasp any straw to try to make Grits look bad. Actually alluding to Pontius Pilate is not comparing Swearingen to Jeus. Find a better straw than this!

Gritsforbreakfast said...

9:17, I thought about that, but the comparison made was to the question before Pontius Pilate and SCOTUS: May an innocent man be executed? Swearingen may or may not be innocent - I have no more knowledge than what I read in the papers, and SCOTUS wasn't asked to decide that question. They were asked, simply, is it unconstitutional to execute an innocent person, and SCOTUS, like Pilate, took a pass.

GalvestonLawyer said...

Scott--how do I email you? I have a tip for you that I think you will find interesting. My email address is brysimlaw@aol.com. Thanks, Bryan Simmons

Texas Lawyer said...

Grits, not that I would defend SCOTUS on their (lack of?) "actual innocence" jurisprudence, but don't you think the CCA's order for a new hearing in the state district court contributed to SCOTUS's decision to deny cert.?

Daniel Simon said...


In 1945 in Houston Texas a black man named Joseph Van Hodge killed another black man named Arther Thomas, was tried for the murder and sentenced to death.

At the time there were no lengthy federal appeals...and most condemned were dead within a few months.

A Houston attorney named W.W. Holland took the case to the Court of Criminal Appeals with the novel argument (not raised at trial) that the session of the Texas Legislature that created the District Court that convicted his client was not properly constituted because they had not taken a specifically worded oath of loyalty to the U.S. Constitution that is today found in 4 U.S.C. Section 101 and 102.

The CCA opined that since it was not raised at trial the oath issue was not before them on appeal...then went into dicta about how it looked like Van Hodge got a fair trial, and they affirmed the death sentence.

Not to be deterred W.W. Holland came back with a Motion for Re-hearing asking the CCA to recuse themselves and call upon the Governor to appoint a new panel...based on the fact that the CCA had also not complied with this federal law!!

The CCA went into "doom and gloom" dicta and obiter dicta...about how every prison door would swing open and Texas would collapse into ruin...and then ruled that their Texas Constitutional Oath was good enough for government work. They affirmed the death penalty for the third time. This was late 1945-early 1946.

An execution date was set for early March 1946 and by all rights Van Hodge should have been electrocuted then.

However a few days before his scheduled execution a unanimous board of pardons and paroles voted to commute his sentence to life in prison and the then Governor signed off on it.

The reason they gave was that Van Hodge's attorney had no put on his "real defense AT TRIAL...but only a fantastic attack on State Government not even remotely suggested by the facts"...

However, as the CCA observed...this was a LIE..the word oath was not raised at trial only for the first time on appeal.

Texas spared Van Hodge's life and got some engineered case law from the CCA and every Texas Official I have ever checked has still not complied with 4 U.S.C. Section 101 and 102 to this very day. That includes Rick Perry.

You can read some more about it on my website http://www.wilcoshysterbuster.com on the page called "no steenken oaths"

Daniel Simon

Anonymous said...

Deut 16.18 Justice Justice shall you pursue.
In a system based on criminal processing; maters of justice regarding guilt or innocence are simply mute points. Phrases like tough on crime, war on drugs, don’t mess with Texas help to encourage this abomination of true justice. Christian leaders in Texas are a shining example of the gospel of Jesus being nothing more than a crap filled fairy tail. A fairy tail that allows people to believe they can dump their responsibilities on a dead man while getting away with heinous crimes in the eyes of God and man. Do they believe God is as biblically retarded with respect to human rights as the Christian leadership in Texas with their minstrel followers tend to demonstrate?

This case provides yet another opportunity for our governor and the BPP to prove their form Christianity is a false religion that worships power and wealth.

Gritsforbreakfast said...

Probably, Texan Lawyer, but I was hoping they'd take it up.

Bryan, its shenson[at]austin.rr.com.