Tuesday, January 27, 2009

TEXAS: Swearingen : A case for "actual innocence" as legal claim?

Someone killed Melissa Trotter and dumped her body in the Sam Houston National Forest. But according to six forensic experts, that someone was not Larry Swearingen-an eight-year resident of Texas’s death row.

Good news: Larry Swearingen just got a stay of execution from the U.S. Court of Appeals for the Fifth Circuit. The court granted the stay and also granted him permission to file another writ of habeas corpus in federal district court, though it limited him to two legal claims...

If the federal appeal fails, Swearingen will appeal again to the Fifth Circuit. If that fails, Swearingen could wind up back before the state Court of Criminal Appeals again, as he has been for the past couple of weeks, desperately seeking a stay of execution based on his claim that, according to science, he could not have killed Trotter.

Will Swearingen give the system a chance and reason for a legal claim of "actual innocence"? The Judge apparently thinks this is so.

From from Michael Hall's updates and article:

...In a fascinating side note, one of the three Fifth Circuit judges noted the federal elephant in the room—that there is no such thing as a legal claim of “actual innocence” in federal court. And Judge Jacques L. Wiener, Jr., obviously believes Swearingen gives the system a chance to have one: “This might be the very case for this court en banc—or the U.S. Supreme Court if we should demur—to recognize actual innocence as a ground for federal habeas relief. To me, this question is a brooding omnipresence in capital habeas jurisprudence that has been left unanswered for too long.”

..."We are absolutely grateful for the stay,” says James Rytting, Swearingen’s attorney. “The evidence of innocence is compelling—it shows Larry couldn’t have murdered Melissa Trotter. It would have been a stain on our justice system if they had executed the man. And it will be if they ever go through with this in the future... Rytting (added): “If that court doesn’t determine Swearingen meets the standards of actual innocence, no one ever will.”

...In the past few days, the Houston Chronicle wrote an editorial demanding that Perry stay the execution and both the Chronicle and the Austin American-Statesman published long stories on Swearingen’s case, each one skeptical of his guilt. The truth is, the closer you look at the case, the more you realize it’s simply a bad one. But don’t take my word—take the word of the physicians and scientists who have studied the evidence. Swearingen didn’t kill Trotter. And if someone doesn’t step in and do something, the state of Texas—in other words, you and me and every other citizen here—is going to execute an innocent man.

Innocent men in prison often have two things in common. They (often) stubbornly refuse to plead guilty, even if it means a reduced sentence or freedom...
...Six different physicians and scientists—forensic pathologists and entomologists—say there’s almost no way Swearingen could have done it. One of those doctors was instrumental in convicting Swearingen back in 2000 but has now changed her mind after seeing all of the evidence. Dr. Glenn Larkin, a retired forensic pathologist in Charlotte, North Carolina, says, “As a forensic scientist since 1973, I always kept an objective stance when called to testify; however, there comes a point when as a human, and as a Christian, there is a mandate to speak in the interest of justice. This is a moral issue now; no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

The Story - by Michael Hall: A Shaky Case begins...
Back in 2000, the prosecutors of Montgomery County used mostly circumstantial evidence, some of it remarkably weak, to convict Swearingen. Trotter was a nineteen-year-old student at Montgomery College in Conroe when she disappeared on December 8, 1998... An extensive search was organized, and her body wasn’t discovered until January 2 in the Sam Houston National Forest by a couple of hunters—in an area that had been already searched three times...

...(In order to get the death penalty, prosecutors had to prove murder in tandem with another felony, such as kidnapping or rape.) The motive? Prosecutors brought forward testimony from construction worker pals of Swearingen’s who said he had been furious at being stood up. As for proof about the kidnapping, there were witnesses who saw the two together on campus earlier that day...To read the rest...Go here Also find a photo with a triumphant Larry and his wife at this link.

Or go to Texas Monthly dot com to find both the entire story and the two updates by Michael Hall

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