UPDATE #2: 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: 1) whether the state knew that the testimony of Joye Carter, the original medical examiner, was false and misleading, and 2) whether Swearingen’s trial attorney was ineffective in his cross-examination of Carter and ineffective in not developing cell and tissue evidence recently found at the Harris County medical examiner’s office.
“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.”
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. “I would hope the CCA would take this case seriously,” Rytting says. “If that court doesn’t determine Swearingen meets the standards of actual innocence, no one ever will.”
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.”
UPDATE #1: Larry Swearingen dies tomorrow, January 27, 2009—even though six different physicians and scientists say there’s no way he could have murdered Melissa Trotter and left her body in the Sam Houston National Forest on December 8, 1998. Swearingen will be executed by the state of Texas at 6 p.m. Tuesday, unless the Court of Criminal Appeals or Governor Rick Perry steps in and stops it. James Rytting, Swearingen’s lawyer, has filed for a stay of execution with the CCA, citing even more new evidence (a January 20 forensic analysis of tissue recently found at the Harris County Medical Examiner’s office) that says Swearingen didn’t kill Trotter. I wish Swearingen luck—not once in all of his appeals has the CCA treated seriously the scientific testimony of these forensic pathologists and entomologists. The court has instead repeatedly bought the prosecution’s theory of the crime, one based on largely iffy circumstantial evidence.
There’s evidence that, in these final days, Swearingen’s case is becoming one of those death penalty cases that get a lot of media attention, which may in turn help sway the opinions of the men and women who will make the final decision. 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 stubbornly refuse to plead guilty, even if it means a reduced sentence or freedom. And they never quit trying to prove their innocence, whether it’s by writing letters to lawyers and journalists, filing writs on their own, or just camping out in the prison library studying law books or anything else that could help their cases. The wrongly convicted never give in, and they never give up.
Larry Swearingen, an eight-year resident of Texas’s death row, is almost certainly a member of this unhappy group. From the beginning, when he was arrested in December 1998 for murdering Melissa Trotter in rural Montgomery County, just north of Houston, he has insisted he didn’t do it. He never asked for any kind of a plea deal, once saying, “I’m not going to plead guilty to something I didn’t do.” He took the stand at his trial and testified that he didn’t kill Trotter. Ever since, he has worked diligently from his cell at the Polunsky Unit to prove his innocence—filing writs to the court system, writing letters to journalists, even poring over climatological charts to prove his case.
But there are other reasons besides pride and perseverance to believe that Swearingen didn’t kill Trotter. 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.”
And it is a moral issue with real urgency. Swearingen just got an execution date of January 27. His lawyers are frantically trying