One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.
Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.
That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.
The Larry Swearingen case is very much in point;
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"TEXAS INMATE LARRY RAY SWEARINGEN (“SWEARINGEN”), SENTENCED TO DEATH FOR THE CAPITAL MURDER OF MELISSA TROTTER, SEEKS A STAY OF HIS EXECUTION SCHEDULED FOR JANUARY 27, 2009, AND AUTHORIZATION TO FILE A SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS. FOR THE FOLLOWING REASONS, WE GRANT IN PART AND DENY IN PART THE MOTION AND STAY THE EXECUTION."
UNITED STATES COURT OF APPEALS; FIFTH CIRCUIT;
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A KEY PORTION OF THE DECISION (FOOTNOTES DELETED); THIS IS MUST READING IN ORDER TO UNDERSTAND THE FIFTH CIRCUIT'S EXTRAORDINARY DECISION TO ORDER A STAY OF EXECUTION FOR LARRY SWEARINGEN:
"In brief, Melissa Trotter disappeared on December 8, 1998. Her body was found in the Sam Houston National Forest on January 2, 1999. Swearingen had been in jail since December 11, 1998. The claims he seeks to raise in his successive petition primarily relate to forensic evidence that allegedly proves that Trotter’s body was left in the forest after his arrest.
Swearingen raises two claims of actual innocence. The Fifth Circuit does not recognize freestanding claims of actual innocence on federal habeas review.
Swearingen asserts that the State sponsored the false or misleading testimony of Dr. Carter, the Harris County Medical Examiner who testified at trial for the State as to the date of death, in violation of his due process rights as set forth in Giglio v. United States, 405 U.S. 150 (1972).
The factual predicate for this claim is an October 31, 2007 affidavit that casts some doubt on her testimony as to the date of death. At trial, Dr. Carter testified that Trotter’s body had been left in the forest for approximately twenty-five days, which was consistent with the State’s theory that Swearingen murdered Trotter on
December 8, 1998, and left her body in the forest. In her affidavit, Dr. Carter does not address the correctness of her original testimony based on decomposition and fungal growth, but states that if she had been provided certain additional data, she would have testified that the findings of her autopsy “are consistent with a date of exposure in the Sam Houston National Forest within fourteen days of discovery, and incompatible with exposure for a longer period of time.” Swearingen has made a prima facie showing that this affidavit could not have been discovered previously with the exercise of due diligence. Unlike his other claims, this claim rests not on the correctness of her testimony (which could have been disputed at any time) but on the State’s interactions with its witness, which could not be known before her affidavit. We assume the merits of Swearingen’s asserted constitutional error at this stage, and given the importance of Dr. Carter’s expert testimony to the State’s case, we find that Swearingen has made a prima facie showing that but for the alleged constitutional error of the State sponsoring the false testimony of Dr. Carter, no reasonable juror could find guilt beyond a reasonable doubt.
Swearingen also raises several Strickland claims, two of which satisfy the prima facie showing required by § 2244(b)(2)(B). First, Swearingen alleges that his trial counsel performed a constitutionally deficient cross-examination of Dr. Carter. Like his Giglio claim, this Strickland claim is based in part on Dr. Carter’s affidavit. As discussed above, this claim should be permitted to proceed.
Second, Swearingen alleges that his trial counsel failed to develop histological
evidence involving a paraffin block that contained Trotter’s body tissue. Because
Swearingen’s expert, Dr. White, was unable to analyze this evidence until January 15, 2009, the factual predicate for this claim could not have been previously discovered with the exercise of due diligence. Swearingen has made a prima facie showing that but for the alleged constitutional error of his trial counsel’s failure to develop this histological evidence, no reasonable juror could find guilt beyond a reasonable doubt.....;
Accordingly, we authorize Swearing to file a successive habeas corpus petition with the district court limited to: (1) Giglio violations in the State’s presentation of Dr. Carter’s testimony; and (2) Strickland violations in trial counsel’s cross-examination of Dr. Carter, and his failure to develop histological evidence."
Harold Levy...hlevy15@gmail.com;
