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.