5th Circuit Grants Reprieve in Texecution of Possible Innocent

Bump and Update: The 5th Circuit Court of Appeals has granted a reprieve to Larry Swearingen, set for Texecution Tuesday. More here. [Note: I initially wrote it was a 30 day reprieve. It's for an unlimited time.]

Original Post Jan. 24

Texecution set for Tuesday: Four Pathologists Say He's Innocent

Larry Swearingen is scheduled to be executed in Texas on Tuesday for a murder that four pathologists say he could not have committed. He was in jail at the time of the murder for which he was convicted:


The four include the medical examiner whose testimony helped secure Swearingen's guilty verdict. That medical examiner now says college student Melissa Trotter's curiously preserved body could not have lain in the East Texas woods for more than 14 days — and probably was there for a much shorter time. The results mean Swearingen was in jail when the 19-year-old's body was left behind, the pathologists say.

His lawyers say it's a case of "guilt by imagination." Prosecutors disagree.

Their evidence:

Prosecutors disagree, saying compelling evidence ties Swearingen to the crime, including a match between the panty hose leg found around Trotter's neck and the stocking remnant found in a trash dump next to Swearingen's mobile home. Also, hair and fibers show Trotter had been in Swearingen's truck and mobile home in Willis, about 40 miles north of Houston.

The prosecutors don't disagree with the experts' findings but say they are merely "opinion evidence."

In court briefs seeking to keep Swearingen's execution on track, prosecutors do not attack the conclusions by the four pathologists beyond labeling them "opinion evidence based on experts' second-hand review of others' work and photographs."

One of those pathologists, however, did Trotter's autopsy.

The Texas courts have not ruled on the pathologists' findings. Instead, they dismissed Swearingen's petition on a procedural ground.

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.

Swearingen also has federal habeas petitions pending and a request to Gov. Rick Perry to issue a 30 day stay. The Texas Attorney General opposes relief. In briefs, he said:

Swearingen has presented no new DNA or indisputable evidence undermining his conviction, only expert opinion that could be challenged under cross-examination.

Swearingen's lawyer, joined by the Innocence Project in New York, says he believes he has met the legal definition for an innocence claim: that it is unlikely a reasonable juror would convict him in light of the new evidence.

If executed, Swearingen will be Texas' fourth execution this year.

Update: Grits for Breakfast has more.

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  • Display: Sort:
    Barbarians (none / 0) (#1)
    by eric on Sat Jan 24, 2009 at 08:25:41 PM EST
    these people.  It is like it is a different world down there in Texas.

    I think (none / 0) (#6)
    by Claw on Mon Jan 26, 2009 at 02:58:41 PM EST
    That's an unfortunate misconception.  See: Paul Howard's recent crusade here in GA.  Texas may be the worst of the worst, but the rest of the Southeast is working hard to catch up.

    Only "opinion evidence"? (none / 0) (#2)
    by befuddledvoter on Sat Jan 24, 2009 at 10:20:38 PM EST
    Boy, that is great line of attack for the defense to use hereafter in Texas.  

    It makes no sense for the prosecution to oppose a stay.  Why does 30-days mean anything to them at all?  Obviously there are serious issues of guilt/innocence.  What is their rationale for executing an innocent person?

    for the same reasons given by (none / 0) (#3)
    by cpinva on Sun Jan 25, 2009 at 02:27:47 AM EST
    the USSC:

    What is their rationale for executing an innocent person?

    actual innocence is irrelevant, the process must be adhered to.

    pretty much all "expert" testimony is "opinion evidence", since none of it can be 100% conclusive. that the texas courts were able to dismiss the petition, for reasons other than that, i'm certain made them all breathe easier.

    medical examiner (none / 0) (#4)
    by diogenes on Sun Jan 25, 2009 at 08:11:53 PM EST
    If the medical examiner's testimony helped secure the original conviction, then his testimony at least is opinion testimony since he has had two opinions at different times.
    Why exactly would the stocking used in the strangulation match one found in a trash dump near Swearingen's trailer?  Is Swearingen going to go out like O.J. to find the "real killer"?

    30 day reprieve? (none / 0) (#5)
    by caramel on Mon Jan 26, 2009 at 01:42:55 PM EST
    Don't know where you found this information, the 5thcc doesn't grant 30-day reprieves, the stay is unlimited and won't be lifted until the issue is resolved one way or the other.

    thanks, I'll fix it (none / 0) (#10)
    by Jeralyn on Mon Jan 26, 2009 at 04:48:10 PM EST
    This doesn't sound like the 5th Circuit (none / 0) (#7)
    by ericinatl on Mon Jan 26, 2009 at 04:06:04 PM EST
    I know and hate.  I guess they've finally gotten some sense knocked into them after being batted around by the Supreme Court a couple of times.

    No, no, no!! (none / 0) (#8)
    by NYShooter on Mon Jan 26, 2009 at 04:16:31 PM EST
    They never counted on Talk Left....and our heroine, JERALYN!

    You wanna mess with US??


    The stocking remnant in the trash (none / 0) (#9)
    by cpa1 on Mon Jan 26, 2009 at 04:35:02 PM EST
    is as believable as the blood (with EDTA) on the back gate at Nicole Brown's place.  Is Swearingen that stupid that he'd put a piece of the stocking in his trash, near his house and I bet the police knew exactly where to look for it.

    My kid threw a check of mine in the trash (none / 0) (#11)
    by sarcastic unnamed one on Mon Jan 26, 2009 at 06:07:32 PM EST
    the other day. It had fallen out of my car, unbeknownst to me, and he just picked it up and threw it out not knowing what is was.

    Plenty of reason to question this one, I'm not sure the stocking is a major red herring.


    So you think OJ didn't do it? (none / 0) (#12)
    by diogenes on Mon Jan 26, 2009 at 09:51:43 PM EST
    In the battle of circumstantial evidence.