Saturday, January 24, 2009

Texas set to execute defendant who was in jail at the time of the crime

UPDATE (1/26): Swearingen has received a temporary, last-minute reprieve from the federal 5th Circuit Court of Appeals.

DNA may have identified another innocent man convicted and sentenced to Texas death row, says a Houston Chronicle editorial ("Room for Doubt," Jan. 23), but he'll die on Tuesday unless Governor Perry stays the execution:

Larry Ray Swearingen has lived on Texas death row for eight years, convicted of the rape-murder of a Montgomery County coed in 1998. He is scheduled for execution by lethal injection in Huntsville next Tuesday, despite the fact that a growing body of evidence indicates he could not have strangled 19-year-old Melissa Trotter and dumped her body in Sam Houston National Forest. ...

While plenty of circumstantial evidence indicated Swearingen, a convicted rapist, was a logical suspect, forensic facts not presented at his trial point elsewhere. Trotter’s body was discovered 10 years ago on Jan. 2, nearly a month after her disappearance from the Montgomery College campus in Conroe.

However, Swearingen was jailed on traffic warrants three days after the woman went missing. Although prosecutors theorized that Trotter was killed and her body dumped in the forest the day of her disappearance, the corpse was amazingly well preserved when discovered. Six physicians and forensic scientists who reviewed the evidence concluded that the victim died well after Swearingen’s arrest.

Former Harris County Chief Medical Examiner Joye Carter, who testified against Swearingen in his trial, reexamined the physical evidence and has concluded that Trotter’s death occurred at least a week after Swearingen was taken into custody.

One expert, using a technique familiar to viewers of the CSI TV series, confirmed that finding by dating the development of insect larvae in the victim’s body.

Other exculpatory evidence included blood samples found under Trotter’s fingernails and a pubic hair recovered from a vaginal swab that came from someone other than Swearingen. ...

Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told Texas Monthly that “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

According to the Austin Statesman's coverage, the Court of Criminal Appeals threw out the claim without ruling on the merits of the new forensics:

Thus far, only the Texas Court of Criminal Appeals has seen the opinions from the four forensic pathologists.

The state's highest criminal court, however, did not rule or comment on the information. Instead, the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed.

The appeals court has yet to rule on a stay of execution motion that repeats the forensic conclusions.

The opinions from the forensic pathologists also were included in a plea to Gov. Rick Perry to issue a 30-day execution reprieve.

Swearingen also has two federal petitions pending based on the forensic information. He is asking the 5th U.S. Circuit Court of Appeals for permission to bring the findings to a U.S. District Court for review, and he is asking the U.S. Supreme Court to review the case.

Texas Attorney General Greg Abbott has opposed both requests, saying Swearingen has not met federal requirements to pursue an innocence claim and is, in fact, not innocent.

In such instances, I'm hard pressed to understand why prosecutors or the AG are so gung ho dismiss a viable actual innocence claim without vetting it thoroughly. After all, if Larry Swearingen didn't do it, that means the real killer is still out there.

It's similarly hard to see how the Court of Criminal Appeals members could sustain this conviction, ignoring on a legal technicality the recantation of the state's own forensics expert. Certainly that should meet the standard that "no reasonable jury" could have convicted Swearingen, knowing then what we know now.

Nationwide, about 2.3% of capital convictions are later overturned because the defendant was actually innocent, found a recent study out of Michigan State. The Court of Criminal Appeals' conduct in this case makes you wonder how many more were innocent but executed anyway.


Ryan Paige said...

The newly elected District Attorney for Montgomery County sure seems to know a lot about how this crime was committed. Perhaps he is the currently unknown accomplice who moved the body from the refrigerator to the woods.

I mean, only someone who was involved in the murder would know such details of the crime.

Seriously, though, it's interesting that the DA concedes that a different person would have to have dumped the body but refuses to consider the idea that a different person could possibly have murdered the victim.

How can it only be possible that an unknown person moved and dumped the body but impossible that someone else committed the actual murder?

Anonymous said...

Rev. Charles here:

If Swearingen is actually innocent as seems to be the case, yet is executed anyway, Texas will have innocent blood on our collective hands, and sooner or later, we will pay. It's time that we rise up to stop the injustice.

Anonymous said...

You can't believe the CCA would ignore this new evidence? You can't believe the CCA would allow an innocent person to die for the sake of expediency? Come on Grits, I know you are not that naive. The CCA is the meanest, most uncaring pack of hyaenas ever to disgrace the capital. With the expcetion of Cochran, there is not an intellectually honest person among them. They are result driven, neat package, no messes kind of "jurists" who seemingly have no concern for the impact their decisions have on innocent lives. "Well, he may not be guilty of this particular offense, but what about all those others he got away with?" That is their mantra. That is their sin. That is what they'll have to answer for in this life or the next. With any luck, karma will kick in and they will return to this earth as dung beetles.

Anonymous said...

" the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed"

So, the new forensic interpretations are not counted as new information? This is clearly straining gnats while swallowing camels to get a particular result. Find the actual rapist/murderer, and prove it beyond a reasonable doubt.

Anonymous said...

I doubt anyone inside or outside of Texas can seriously believe the integrity of the CCA given its composition and performance over now many years. As Gregory Wright found a few months back, even when they find evidence presented cannot be totally ignored, they are not prepared to take responsibility for its practical validation or otherwise. Much easier to rubber stamp the view of bodies (trial judge, DA) whose self-interest is in preserving a conviction and sentence. Hopefully, in this particular instance, the case is so obviously outrageous the Supreme Court will be too embarrassed to sit on its hands. Governor Perry does not do embarrassed, so little hope there.

123txpublicdefender123 said...

Come Tuesday, Mr. Swearingen can join David Spence, Ruben Cantu, and who knows how many others as innocent people Texas has put to death while George W. Bush, Rick Perry, Sharon Keller and her shameless gang of "judges," and many others stood by and did nothing, all while sleeping just fine and with a clear conscience. What's the definition of a sociopath again?

Anonymous said...

I'm not seeing much advocacy activity yet in this case. It will be terrible if the media wait until the morning of the execution to start asking why Swearingen is being put to death. I'm also wondering if reverse-racism is at play here: he is white, so is he not quite so worthy of activism, because he cant be used to prove any points apart from what we already know - that justice in Texas is corrupt?

Anonymous said...

Three disgusting cheers for post-conviction procedural bullsh@t. "It's always funny until someone gets hurt and then it's just HILARIOUS." Where was his trial lawyer?

Anonymous said...

What a sad, sorry state of affairs. Justice in Texas truly is deaf, dumb, and blind.

Anonymous said...

to 05:45...I agree, because of stuff like this, I'm so ashamed to be a native Texan, I tell people I'm from Oklahoma!

Anonymous said...

Isn't this one of Keller's first big opinions, where she said that Swearingen could have had an accomplice--a theory of the crime never used by the prosecution at trial?

Anonymous said...

Unbelievable. Is anyone from the Presidents office to the Supreme court ever gone get their balls in hand and do the right thing. This is the same CCA that overlooked the judge and DA having an affair, that overlooks the abuse of kids in TYC, that allows the DA's to do whatever and turn a head. Greg Abbot should not be elected or appointed. Cowards who willingly turn an eye and give a deaf tone should be punished. The trial lawyer, judge and the jury should find themselves in the pit of hell burning and begging for water from this guy. This is maddening and something should be done.

Anonymous said...

Despite the fact that the law is not exactly 100%. In fact it sucks, but it is the ONLY system we have.
Over 90% of Death Row inmates could not afford an attorney, and had public defenders.
The statictic also shows after 20 yrs new DNA testing, 1.5 out of 10 has been shown to be completely innocent of their crimes. With 3263 inmates waiting for death, this makes over over 320 men that are wrongly convicted.
So instead of wasting time effort and energy whining about the system, go to school, get into office and make a difference somehow.
I spoke of this in great detail on "The Mystic Hour" radioshow. which can be seen here:
Until then, let us pray for this man in his time of need.

Anonymous said...

Someone in the Texas House should start the process to impeach Sharon Keller. She has admitted that she broke the rules of her own court on the day she said "we close at 5" and did not notify the duty judge about the request of Michael Richard's lawyers to submit an appeal.

Sam said...

I would have to say as a former judge and as a prosecutor that this matter should be halted by the Governor to allow further review and an investigation. What would the harm be to delay the execution at this point particularly in light of the new evidence? Why take the risk of executing an innocent man while the actual killer may still be out there?

Anonymous said...

"Rev. Charles here:

If Swearingen is actually innocent as seems to be the case, yet is executed anyway, Texas will have innocent blood on our collective hands, and sooner or later, we will pay. It's time that we rise up to stop the injustice."

I couldn't agree with you more, however let's put the statement another way. Whether Swearingen is innocent or not, with the evidence presented, shouldn't justice demand that his death order be rescinded until such evidence can be looked at? This would avoid an innocent man from the needle, and would strengthen people's faith in the system.

If the legislature were to enact laws that mandated a stop if evidence such as this were presented, we might actually see fewer thin cases getting rubber-stamped through the courts. Not saying this man has done nothing wrong, he was in jail at the time of the crime. However, I do believe that he is not guilty of the crime they are sentencing him to death for.

Anonymous said...

Meat left out on the ground decays much more slowly in December than in July. A corpse outside in the chilly winter of '98 might as well have been in a refrigerator. No wonder it was "well preserved."

There is no harm in executing this guy. Even if he didnt kill this person we are still executing a convicted rapist. Not exactly innocent blood.

Anonymous said...

Breaking News..............

Texas death row inmate Larry Swearingen gets 11th-hour reprieve

Don Dickson said...

Thank God. I dunno who Swearingen's lawyers are, but I'm lifting a pint of Guinness in salute. Well done fellas.

I might lift a second one for the Fifth Circuit. That'd be a first.

Anonymous said...

Rev. Charles back:

I'll paraphrase Cominti here, I think not unfairly: "Well, if he didn't do this, he did something else, so no harm done if he didn't do what he's sentenced for." I've heard a similar line before. "If the Tulia defendants didn't do what Tom Coleman said, they did something else. So it's a good thing to send them up the river."

Not what justice is supposed to be made of.

And I agree with anonymous 11:24 that a delay for further investigation is in order.

Anonymous said...

Charles again:

PS: I'm glad to see that the 5th Circuit agrees that this thing should be investigated a bit more.

Anonymous said...

"[...] Texas will have innocent blood on our collective hands [...]" -Rev. Charles

Larry Swearingen is a convicted rapist and he is claiming to have been in jail for a third crime at the time of this killing. He may be innocent of the killing, but he does not have innocent blood. Comparitively speaking, there is little shame in executing someone like Larry Swearingen.

Anonymous said...

"Even if he didn't kill this person we are still executing a convicted rapist."

Here is half of the problem. Your opinion is over-ruling the rule of law. There is no death penalty for rape. yes, you may think that back dating the laws are the right thing to do for rapists. I personally think we should shoot all person's convicted of DWI for the first offense, so good thing I am not making laws either. Being a rapist is a terrible thing, however you cannot be put to death for being one.

Anonymous said...

"Comparitively (sic) speaking, there is little shame in executing someone like Larry Swearingen."

Compared to what? Killing a detainee at Gitmo? exterminating 6 million in a camp? I can not see your comparison. IF he did NOT do a crime that is allowed the death sentence, then he should not be and legally cannot be executed. I understand, it seems that you have something against people that sexually abuse others, and maybe for good reason. but your opinion is one of the reasons why we have such screwed up laws to begin with. ALL rapists are bad.. Agreed, but all sexual offenders are not. So to take your attitude, then we should just kill them all. From this guy, to the kid that was convicted for consensual sex with his girlfriend.. right? is that how it goes? The attitude you are showing speaks volumes on how our laws became so corrupted.

Anonymous said...

Larry is not innocent. He claims to be a violent offender. He is a messed up person. He might have committed this crime. The evidence points to him in a strong way, or he would not be on the row.