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.