UP-DATE: LARRY SWEARINGEN CASE; THE SHARON KELLER TANGENT; LOCKED COURT ROOM DOORS MOVE HER ONE STEP CLOSER TO IMPEACHEMENT: MACLEAN'S REPORTS;

"There are also reports of an eerily similar locked-door incident involving Keller in January. In this case, lawyers for murderer Larry Swearingen arrived at the court clerk’s office at 5:01 p.m. on a Friday to be told their appeal wouldn’t be registered until the following Monday, so they would miss a crucial filing deadline. According to the Morning News, Keller was informed of the rejection. Only after Cheryl Johnson—one of the judges who had waited for the Richard appeal that never came in September 2007—personally intervened did the court accept the filing."

Patrica Treble; Maclean's Magazine;

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Maclean's Magazine reported earlier today that a legislative committee is considering a bill that could lead to Judge Keller's impeachment;

The MacLean's story runs under the heading: "Close at 5’ judge in hot water again Keller locked the doors and miss a death row appeal."

The story also tells how Larry Swearingen almost suffered the same fate at Keller's hands;

A tag-line says that: "Sharon Keller, the Texas judge who wouldn’t keep her court open for even a minute past 5 p.m. so a last-minute appeal could be filed by a man on death row, is a step closer to losing her job."

"On Monday, a Texas legislative committee heard testimony on a bill that, if passed, would impeach Keller, chief justice of the Court of Criminal Appeals, for “conducting her official duties with willful disregard for human life," the story, the story by writer Patricia Treble, begins;

"The bill is a response to her September 2007 decision to lock the doors of her court promptly at 5 p.m., thereby refusing the lawyers of death row inmate Michael Richard time to file a last-minute appeal," it continues;

"His lawyers had called at 4:45 p.m. to explain they were running late after having computer problems. Richard was executed that night.

Keller’s decision, which wasn’t relayed to fellow judges who were waiting to rule on the expected appeal, shocked even Texas, a death penalty stronghold. In February the state commission on judicial conduct laid five misconduct charges against her, including incompetence. Last week 24 legal ethicists filed a brief with the state commission that called for her removal from office. Keller has denied the charges, and the case will go to trial on Aug. 17.

The judicial and legislative cases aren’t her only problems. After Keller asked the state to pay her “financially ruinous” legal bills, the Dallas Morning News revealed that she hadn’t disclosed US$1.9 million in real estate assets as legally required. A watchdog group has since filed a criminal complaint about the omission with a district attorney.

There are also reports of an eerily similar locked-door incident involving Keller in January. In this case, lawyers for murderer Larry Swearingen arrived at the court clerk’s office at 5:01 p.m. on a Friday to be told their appeal wouldn’t be registered until the following Monday, so they would miss a crucial filing deadline. According to the Morning News, Keller was informed of the rejection. Only after Cheryl Johnson—one of the judges who had waited for the Richard appeal that never came in September 2007—personally intervened did the court accept the filing."

Harold Levy...hlevy15@gmail.com;

LARRY SWEARINGEN CASE: PART SIXTEEN; MICHAEL HALL; ANOTHER FORMIDIBLE TEXAS REPORTER; "DEATH ISN'T FAIR," HE SAYS;

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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The Texas death penalty system - in which Larry Swearingen is trapped - was brilliantly described by reporter Michael Hall in a December, 2002 article in Texas Monthly called "Death Isn't fair."

Hall's aversion to the way in which Texas administers the death penalty echoes that of Houston-Chronical columnist Lisa Falkenberg;

Hall, like Falkenberg, is a first-rate reporter;

He graduated from the University of Texas at Austin in 1979. Before joining Texas Monthly in 1997, he was an associate editor of Third Coast Magazine and the managing editor of the Austin Chronicle.

Hall won two 2001 Katy Awards: one for Best Reporter Writing Portfolio and one for Personality Profile/Interview for his July 2001 story “Lance Armstrong Has Something to Get Off His Chest.”

He won a Texas Gavel Award in 2003 this story - “Death Isn’t Fair” - which was also nominated for a National Magazine Award

Hall’s stories have appeared in The Best American Magazine Writing, The Best American Sports Writing, The Best American Nonrequired Reading, and Da Capo Best Music Writing.

He has also written for Trouser Press, the New York Times, Men’s Journal, and the Austin American-Statesman.

"Death Isnt Fair" runs under the caption: "Cops who threaten torture. Prosecutors who go too far. Defense lawyers who sleep on the job. And an appellate court that rubber-stamps it all. Let’s be tough on crime, but let’s also see that justice is done. It’s time to fix the capital punishment system in Texas;"

"As Ernest Willis tells it, he woke up in a house on fire," Hall's story begins.

"It was around four in the morning in Iraan, an oil-field town in West Texas, on June 11, 1986," it continues;

"He had fallen asleep on the living room couch fully clothed except for his eel-skin boots, which lay beside him on the floor. It was the smoke that awakened him, and he ran to the rear bedroom to get the woman who had passed out there a few hours earlier, but the flames and smoke pushed him back. He ran to the front bedroom, where his cousin Billy had gone with another woman a few hours before, but flames again forced him back. He ran through the house and out the door, yelling, "Fire!" and then around the side and rear, banging on windows. As Willis stood in the back yard, Billy came diving naked through a bedroom window. Betsy Beleu and Gail Allison, whom the Willis cousins had just met the day before, never made it out.

At first, the police thought the fire, which came after a night of drinking and pill popping at the house, whose owners had been arrested earlier in the day, was drug-related. Maybe someone had been freebasing or cooking heroin. Later they thought that maybe it was set by an ex-husband of one of the women or a Mexican drug dealer named Santana who Allison had said was after her husband. They found no evidence of arson—for example, no one smelled gasoline—but they were suspicious of Willis. He just wasn’t acting right. He didn’t seem to be coughing as much as his cousin, he didn’t seem concerned about the dead women, and his clothes and hair weren’t singed. He’d said (and Billy had confirmed) that he had run through a burning house, yet his feet weren’t burned. He stood around smoking and acting distant as firefighters fought the blaze. Later, Willis failed a polygraph test, and the police developed a theory that marks on the floor were "pour patterns," suggesting that an accelerant like gasoline had been used. But they had no evidence to support their suspicions: no fingerprints, no bodily fluids, no flammable liquids in the house or on Willis’ clothes or body, no witnesses, no motive.

Nevertheless, four months later Willis was arrested, charged with arson and murder, and taken into the ruthless grasp of the Texas death penalty process. Though the state had a weak circumstantial case, the cops and the prosecutors adamantly pressed ahead. Cliff Harris, then the chief of deputies and now the Pecos County sheriff, recalls, "When we took it to the grand jury, we didn’t feel that we had the evidence to get him indicted." District attorney J. W. Johnson told the Odessa American after the trial that he had thought he had only a 10 percent chance of winning a conviction. Willis had no history of mental illness, but he was given high doses of anti-psychotic drugs, making him appear zombielike at trial—a look that prosecutors used to full advantage, vilifying him whenever they could. He was represented by well-meaning but inexperienced lawyers who made serious errors that doomed him to death row. Finally, he was abandoned by the appeals process that is supposed to be a safety net for questionable cases like his. Now he waits on death row while his final appeal before execution works its way through federal court.

It is the combination of unfairness and persistence that has put Texas under national and international scrutiny. We have been criticized for executing people who are mentally retarded, for executing people who were juveniles at the time of their offense, for trying to execute—before the federal courts stepped in to prevent it—people whose lawyers slumbered in court. These are the kinds of cases that get national attention, but there are many more that go unnoticed. Like Willis’. His case had it all: overzealous police officers and prosecutors, inadequate defense counsel, and an appellate court, the Texas Court of Criminal Appeals, that seemed almost desperate for him to die. The 57-year-old former roughneck is a poster child for what is wrong with the capital punishment system in Texas.

No one can know with absolute certainty that Willis is innocent. But innocence is not the issue here. Nor is capital punishment. Texas is a law-and-order society. We execute more criminals than any other state and most countries. Support for this policy is overwhelming; capital punishment is favored by 68 percent of Texans, compared with 59 percent of all Americans. Texas is going to have capital punishment as long as the United States Supreme Court allows it.

The issue is fairness. Our adversarial process of justice rests on an essential assumption: that the fight is fair. We should be tough on criminals, but when the moment comes that the last appeal is denied and the accused faces death by injection, we want to be able to look at ourselves in the mirror and believe that the State of Texas gave the condemned man a fair trial. The statistics say that this is not always the case. Since 1976, when the U.S. Supreme Court reinstated the death penalty after abolishing it four years earlier, 927 people have been sentenced to death in Texas. Of these, 285 have been executed (as of press time), and 188 have escaped the needle by having their sentences reduced, most of them for procedural violations. Some call these violations "technicalities," but they can be fundamental, such as the withholding of exculpatory evidence by prosecutors. Twelve of the 188 went free—their convictions reversed or overturned or their cases dismissed or sent back for a new trial that resulted in an acquittal. It’s hard to know how many of them were actually innocent, as opposed to benefiting from some serious procedural violation by the state, but there are a handful who we can almost certainly say didn’t do the crime but were sentenced to die.

And there are still men on death row who were put there unfairly. In addition to Ernest Willis, there is César Fierro, who confessed to murder after police officers in El Paso threatened him with the torture of his mother and stepfather by police officers in Juárez; the El Paso police have admitted this, but Fierro remains on death row. Michael Blair was convicted of murder on discredited scientific evidence; even though recent DNA tests appear to exonerate him, he too remains on death row. Wrongs like these will always occur. Our criminal justice system is a government system, and the government—in this case, the courts, the cops, the district attorneys—will inevitably make mistakes. The issue is whether we are willing to correct them, as other states have done. The Republican pro-death penalty governor of Illinois, George Ryan, instituted a moratorium on executions in 2001 until the state could work out the bugs in its death penalty process, which Ryan called "fraught with errors." In May 2002 the governor of Maryland, also a death penalty proponent, followed suit. The Texas Legislature voted down a proposed moratorium in 2001, though lawmakers couldn’t ignore the criticism of the death penalty system. So they made three changes: a new DNA testing program, a revised method for providing court-appointed defense lawyers, and a prohibition on executing the mentally retarded—the latter a bill that was vetoed by Governor Rick Perry.

We live in an era of little sympathy for criminals, especially violent ones. Gone are the old notions that "there but for the grace of God go I" and "it is better for one hundred guilty people to go free than for one innocent person to be executed." Today, you will find death penalty proponents who argue the opposite—that it is unfortunate if occasionally a possibly innocent person is put to death, but the public interest requires that those found guilty of capital murder be executed. The assumption is that only the bad guys get caught up in the system, and that is generally true. But every once in a while, it’s the hapless ones, the losers, who go to sleep on a strange couch and are unlucky enough to wake up in a house that’s on fire.

DEATH BY LOTTERY

ERNEST WILLIS WAS A SAD sack, a drunk, a onetime oil-field hand from New Mexico who was cursed with a bad back, caused by a 1970 accident, that often prevented him from working. By age forty he had had six wives, three DWIs, and four back surgeries, the most recent one a month before the fire, and he had developed a fondness for pain pills. In addition to the DWIs, he had been in trouble with the law on a couple of occasions—once, in his twenties, when he was arrested for cruising by the drive-through window of a fast-food restaurant naked and drunk, and another time, a couple of years ago, for making obscene phone calls. But he had no violent criminal past, not even a juvenile record. Lately he hadn’t been able to work and was living on food stamps, so he had moved to Odessa to live with Billy, a guy who sometimes made and sold bathtub speed. They had come to Iraan hoping their luck would change.

Instead, Willis’ got worse: He lost the capital punishment lottery. Only about one in a hundred killings ends up as a death penalty case. Who decides? The local district attorney. What does he base his decision on? There’s no simple answer. Prosecutors have enormous discretion and are accountable to no one, except to the voters who elect them. You might think that politics would cause all DAs to be death penalty advocates, but this is not borne out by the facts. Since 1976, only 116 of Texas’ 254 counties (fewer than half) have sentenced a person to death; more than half the counties (138) have never sent anyone to death row. In theory, the odds were with Willis in Pecos County; before his case, according to prosecutor Johnson, authorities had not sought the death penalty since the days of Judge Roy Bean, when the rope was used, not the needle. So what made Johnson decide that the Willis case should be treated as capital murder? He insists he didn’t. "I presented the evidence and witnesses to the grand jury," Johnson says, "and they are the ones who made a determination it was capital murder."

Most district attorneys would admit to taking a more active role. Retired Harris County DA Johnny Holmes, who won more death sentences than any DA in Texas history, always made the call on whether to seek the death penalty. "The most important issue to me," he says, "is whether a reasonable cross section of the public in this jurisdiction, sitting as a jury, would vote to impose death. There are many factors that go into that decision." Interviews with prosecutors and defense attorneys produced a long list of such factors: politics, the heinousness of the crime, the chance of winning, how good the defense attorney is, the willingness of a defendant to accept a plea bargain for a lengthy sentence, and how much publicity the case is getting. "I think the press has a lot to do with it," says Robert Icenhauer-Ramirez, an Austin criminal defense attorney for 23 years. "If the case is high-profile and the DA figures he will have an easy time making the case, he’ll go for the death penalty. I’ve had horrendous cases with horrible facts that got no publicity. The DA will treat them as non-death penalty cases."

One of the biggest factors is money. Many counties have never sent anyone to death row because they can’t afford to. It costs anywhere from $50,000 to $100,000 to plan and prosecute a capital murder case. Some counties don’t have their own medical examiners and have to hire one to do an autopsy. Some don’t have a crime lab and have to pay another county to test forensic evidence. Some counties have only one judge; since a trial can take two to three months, they have to pay a visiting judge to take care of all the other cases backed up behind the murder trial. Judges and DAs are beholden to county commissioners, who control the purse strings. Norman Lanford was a former district judge in Harris County as well as a visiting judge in various other counties. Out there, he says, "The commissioners would tell judges, ’Don’t ever do a capital murder case. We can get a road grader for that kind of money.’"

In other words, if you have to kill someone during a robbery, do it in Waller County, which has never prosecuted anyone for capital murder. Don’t, however, do it next door, in Harris County. Like most urban counties, it has a prosecution machine. The DA has a budget of $37 million and 233 attorneys (54 of whom do nothing but try the eight to fourteen capital murder cases a year and another 10 who just work on appeals), access to the Houston Police Department and Department of Public Safety crime labs, as well as secretaries, psychologists, forensics experts, investigators, and the budget to hire expert witnesses. The same is true in Dallas, San Antonio, El Paso, and Austin. Prosecutors there are specialists at trying capital murder cases.

At his trial, Willis appeared lost in a fog. His court-appointed lawyer, Steven Woolard, gave him a legal pad and a pencil. "He said to doodle, do anything—just look busy," Willis says now. "He asked me if it was the pain medication causing me to act like this. I thought I was acting normal. I didn’t know." In fact, while Willis sat in the Pecos County jail awaiting trial, someone—no one remembers who, but it had to be someone connected with the state’s side of the case—ordered that he be given high daily doses of Haldol and Perphenazine, two anti-psychotic medicines, along with the pain pills for his back. Haldol especially is given to people with severe mental illness, and according to a doctor who testified in a 1996 hearing to reopen the Willis case, the standard dosage for a person who is "barking at the moon, a danger to other people and himself," is fifteen milligrams a day. Willis was given forty milligrams a day, on top of an undetermined daily dosage of Perphenazine.

Nor can anyone remember why the medication was ordered. Back in June, shortly after the fire, Willis had told deputy sheriff Larry Jackson about sometimes feeling tense and nervous, but he had no history of mental illness or psychosis, and the jailers all said he had been a model prisoner. "Ernest was never any problem," says then-deputy Cliff Harris. "He was always quiet." Willis did what he was told and took the pills.

Prosecutors Johnson and Albert Valadez both say they were never aware of the doping and that Willis didn’t appear to be acting strangely. Yet, the trial transcript reveals that Johnson repeatedly used the defendant’s doped-up demeanor against him, calling him an "animal" and a "satanic demon" and referring to "this deadpan, insensitive, expressionless face" and "cold fish eyes"—symptoms that, according to psychologists testifying at a later hearing, are typical side effects of anti-psychotic drugs.

The jury didn’t believe Willis’ story that he had woken up in a burning house or his attorneys’ theory that the fire was accidental. The prosecution’s theory of cold-blooded arson was much easier to believe. All the jurors had to do was look at the remorseless monster sitting there blank-faced, with "these weird eyes," as Johnson said, that would "pop open like in some science-fiction horror film." The verdict was guilty; the jury took only an hour to give him death. Later, juror Roy Urias said he was convinced of Willis’ guilt "by his failure to deny the charges against him. Specifically, when the prosecutor referred to Mr. Willis as ’vicious,’ with his ’fish eyes,’ I expected Mr. Willis to deny the accusations. I also expected a denial when the prosecutor presented the photographs of the charred bodies of the victims. Instead, Ernest Willis remained seated, completely expressionless." Of course, he was in no condition to do much else.

The prosecution also failed to turn over a psychological report about Willis that might have saved him from death row during the punishment phase of the trial. To give the death penalty, the jury must find that the defendant is a future danger to society and that there are no mitigating reasons to spare him from capital punishment. Court records indicate that Johnson had hired a San Angelo psychologist named Jarvis Wright to test Willis, but Wright wrote that he had found nothing in the defendant’s personality to indicate such danger. The prosecution didn’t reveal the report to the defense, as the U.S. Supreme Court requires.

Prosecutors, like all lawyers, are officers of the court, which means that their first duty is not to win but to see that justice is done. Yet this responsibility is all too often overlooked in the heat of battle. It’s a war out there, and the state wants to win. In fact, prosecutors have to win. They are under far more pressure than defense lawyers, who, most of the time, are trying to get the least possible sentence for clients who are almost certainly guilty. The DA is a politician, an elected servant of the people, and he constantly needs to prove that he is winning the war against crime. And in war, anything goes. Prosecutors and police officers sometimes lie, evade the truth, and suppress evidence. They don’t do it because they are evil; rather, they do it because they are certain the defendant is evil. So in their relentless pursuit of a conviction, they sometimes fail to disclose information that would help him, as they are required to do. They don’t disclose the names of other confessors or witnesses who saw something that would help the defendant. They don’t tell the whole truth. It’s not in their interest. The attitude of defense lawyers toward prosecutors is summed up by veteran Houston defender Randy Schaffer: "You will always have prosecutors and police cutting corners, whether it’s a death penalty case or a traffic stop. It’s indigenous to the beast—what they do. And the more severe the case, the more likely they’ll do it."

Two aforementioned cases, those of César Fierro and Michael Blair, illustrate the lengths to which the state and its agents will go to get a conviction. In 1980 Fierro was convicted of killing a cab driver the year before in El Paso. The evidence against him was the testimony of a sixteen-year-old boy who said he was with Fierro at the time of the killing, and Fierro’s confession. At his trial, Fierro, a Mexican citizen who lived in both El Paso and Juárez, said that detectives had coerced his confession by threatening to have Mexican police officers torture his mother and stepfather, who lived in Juárez, with the dreaded chicharra, an electric generator that the Juárez police were infamous for using, applying it to an interviewee’s genitals, occasionally after wetting him or her down. At trial the lead detective, Al Medrano, denied colluding with the Mexican police, and the jury convicted Fierro and sent him to death row. Fifteen years later appellate attorneys for Fierro found in his file a report written by Medrano, in which he told how he had indeed contacted the Juárez police. Armed with rifles, they raided Fierro’s parents’ home in the middle of the night and took them to the city’s police station. Later that day Fierro, in El Paso police custody, was told where his parents were. Medrano handed Fierro the phone, and he spoke briefly with Jorge Palacios, the Mexican police chief. He hung up and immediately signed a confession.

The Fierro case involves conduct the police obviously are not supposed to engage in, but equally troublesome is something the state is allowed to do: rely on forensic evidence that—TV shows such as CSI notwithstanding—often sounds more convincing than it really is, from bite marks to blood spatters. Improved scientific methods have cast doubts on the reliability of the traditional tests used to support this kind of evidence. One of the most unreliable techniques is hair-comparison analysis. In 1996 the Justice Department did a study of 240 crime labs and found hair-comparison error rates ranging from 28 percent to 68 percent. The testimony is outlawed in Michigan and Illinois, but unfortunately for Michael Blair, it is admissible in Texas.

Blair, a convicted child molester, was arrested for one of the highest-profile crimes in Texas: the 1993 murder of seven-year-old Ashley Estell, who was kidnapped from a crowded Plano soccer tournament. The police had no fingerprints, body fluids, or eyewitnesses who could place Blair and the girl together that morning. After several days, however, Charles Linch, the trace-evidence analyst from the Southwestern Institute of Forensic Sciences, concluded that hairs found in Blair’s car "appeared similar" to Ashley’s, and hairs in a clump found at another park two miles from the abduction site looked like they belonged to the suspect and the victim. This evidence gave the police probable cause to arrest Blair.

At his trial, the police produced three witnesses who had come forward after Blair’s arrest, when his photo was blanketing the local news, and a fourth who said she’d seen a car that bore a tenuous resemblance to Blair’s Ford EXP near the area where the body was recovered. The only substantive evidence came from Linch, who said that three hairs found in Blair’s car had the same "microscopic characteristics" as Ashley’s. Two tiny black hairs, found on and near the body, were too small for comparison, but Linch said they had Mongolian characteristics, which could apply to Blair, who is half Thai. And, Linch said, a fiber found on Ashley’s body was similar to fibers from a stuffed rabbit found in Blair’s car. In his closing arguments, Collin County prosecutor J. Bryan Clayton said of the hairs, "You can call it a link, you can call it association, you can call it a match, or any other darned thing they want to call it." The jurors did, and Blair was convicted and sent to death row.

In 1998, however, the case against Blair began to unravel when a series of newer mitochondrial DNA tests revealed that none of the hairs belonged to either him or Ashley. The latest of the four test results, on the clump of hair, came only two months ago. And, defense lawyers say, the fiber was from a stuffed rabbit bought at Target that was indistinguishable from any one of half a million stuffed animals. It’s clear now: Blair was convicted and sentenced to death on junk science.

Dubious forensic evidence also played a central role in the Ernest Willis case. Arson investigation is an inchoate "science"; in 1987, when Willis was convicted because prosecutors said pour patterns indicated he had dumped an accelerant throughout the house, it was even more so. The first national standards for fire investigation weren’t even published until 1992. "For many years fire experts looked at things like spalled concrete or crazed glass and speculated, dreamed up theories," says Arizona State University law professor and noted authority on forensic evidence Michael Saks. "Finally, after sending umpteen people to prison, they did empirical testing. They set buildings on fire and went in and looked for spalled concrete and crazed glass. It turns out those things are unrelated to whether a fire was arson or not. It was all guesswork and imagination."

Perhaps the most unreliable experts are those who, during the punishment phase, predict that a defendant will be a continuing danger to society. Such evidence is necessary before a jury can impose the death penalty. Though the American Psychiatric Association has said such predictions are wrong two thirds of the time, Texas prosecutors have relied on a handful of psychiatrists who can be counted upon to answer, emphatically and almost every time, yes, this person is a future danger, thus dooming him or her to die. The most notorious was James Grigson, of Dallas, a psychiatrist who was known in legal circles as Dr. Death because of the scores of Texas capital murder cases in which he testified, using phrases like "absolutely certain" or "one hundred percent sure." Many times he never even interviewed the person he testified about.

Defense attorneys must object to such flimsy evidence to preserve the right to object to it on appeal, but they know they will be overruled. In the view of many defense attorneys, judges are not neutral referees, assuring that a trial is fair, but adversaries, especially in capital punishment cases. Former judge Lanford says, "Generally, the judge is the second or third prosecutor in the courtroom. The state is going to win on most things." Many district judges are former prosecutors; some even worked for the prosecutor’s office that is trying the case before them. In Harris County 20 of the 22 judges in local felony courts previously worked in the DA’s office. Like prosecutors, judges are elected; they will be tough on crime, especially in capital punishment cases. Most defendants have only one chance for a fair trial: a court-appointed lawyer who knows how to defend a death penalty case. In Texas, that chance isn’t very good.

THE DEFENSE RESTS—LITERALLY

I PUT MY HEART AND soul into the defense of Ernest Willis," says Steven Woolard, the lead counsel in the case. "But if I were a judge today, there’s no way I would have appointed me then." Not many attorneys were available in Pecos County in 1986, Woolard recalls, and he and another lawyer were named by Judge Brock Jones to defend Willis. Woolard was zealous but inexperienced: At the time, he had been practicing law for less than four years. He had never tried a death penalty case.

Willis’ attorneys never tried to poke holes in the prosecution’s unlikely theory that a pillhead with "surgical failed back syndrome" (Willis, vomiting from pain, had seen two doctors the day of the fire), who had drunk a six-pack of Coors, could have gone out—would have wanted to go out—at three-thirty in the morning to siphon ten to fifteen gallons of gas into a can, douse the house from one end to the other, set the place on fire, and then get rid of the can without waking anyone up or getting even a drop on his hands, feet, or clothes. They rarely objected when Johnson called Willis an "animal." Worst of all, during the punishment phase of the trial, they asked only two perfunctory questions of the state’s two witnesses, who claimed Willis had a "bad" reputation but gave no details, and they rested their case without calling character witnesses who might have persuaded the jury to spare Willis’ life. Many years later Pecos County deputy sheriff Larry Jackson (now deceased) told the Dallas Morning News, "If he’d had sufficient counsel, he wouldn’t be on death row. . . . They messed this old boy around for years."

Kevin McNally, a Kentucky attorney who analyzes cases for evidence of bad lawyering, testified in a hearing to determine whether Willis should get a new trial that the punishment-phase lawyering was "in the bottom one half of one percent" of the two hundred cases he had looked at. That would make it the very worst. He referred to witnesses Woolard knew about but didn’t call: family members and friends, some of whom came forth at this hearing and testified that Willis was a loving father, a good boss, and a decent man. Willis’ brother Alton related a story about a family gathering at Lake Stamford, when Willis had seen a boy accidentally back a truck into the lake. The man J. W. Johnson had called a "satanic demon" had pulled off his boots, dived into the water, broken a window, pulled the kid out, and then refused money for saving his life. "Most capital defense lawyers would trade their right arm" for this kind of mitigating evidence, McNally said. Today Woolard says he didn’t call the character witnesses because of concerns about their credibility: "Their presentation, manner of dress, cultural affectations." In other words, they were rednecks. In Pecos County, of all places.

Once again, the Willis case shows the extent to which the death penalty system is like a lottery. A few counties, such as Dallas, have public-defender systems with experienced attorneys. In most counties, however, the trial judge appoints attorneys for indigent defendants from a list of available volunteers. Some are experienced lawyers, but many more are inexperienced (sometimes only a couple of years out of law school); they are easily confused by the arcane rules of capital punishment cases and cowed by the prosecutorial juggernauts. Court-appointed attorneys are frequently solo practitioners with little support staff to investigate, find witnesses, and keep track of motions to file. They object when they shouldn’t and don’t object when they should. As in the Willis case, they don’t question the obvious or do the basic work to save their clients’ lives; as in Michael Blair’s case, they don’t hammer away at flimsy evidence. They cut corners. Sometimes they just give up. A Dallas Morning News investigation in 2000 found that one quarter of all death row inmates had been defended by attorneys who had been or were later disciplined by the State Bar of Texas for everything from lying to neglecting their cases.

One of the reasons for the bad lawyering is bad pay, which chases away good people and makes a good defense impossible. Court-appointed defense attorneys often lack the budgets to hire their own experts to attack those of the prosecution. In Willis’ case, Woolard hired a fledgling arson investigator, whose credentials Johnson mocked mercilessly. "I felt inhibited somewhat," says Woolard now about his choice. "I had to justify expenses to [trial judge Brock] Jones." Unlike prosecutors, judges, police officers, or jailers, court-appointed attorneys are the only ones in the criminal justice system who work for less than the going rate for their profession. County officials can think of a lot of ways they would rather spend tax dollars than defending accused murderers. So appointed lawyers have to battle to get paid. "You take a voucher to the judge after the case," says an Austin defense attorney. "Let’s say you worked three hundred and fifty hours. The judge would cut it in half." Such penny-pinching stifles the lawyers’ incentive to investigate and put on a vigorous defense. In the case of Federico Macias, the federal court that overturned a guilty verdict because of ineffective assistance of counsel noted in its opinion that the trial attorney had been paid roughly $11.84 an hour. "Unfortunately," the court said of defense counsel, who had failed to interview the witnesses who would one day exonerate the defendant, "the justice system got only what it paid for."

Proof of the low quality of court-appointed lawyers in Texas came in a state bar committee study of 2,983 Texas defense attorneys, prosecutors, and judges that appeared in 2000. Called "Muting Gideon’s Trumpet" (the reference is to a book about the case of Gideon v. Wainwright, in which the U.S. Supreme Court said that every indigent criminal defendant had to be provided with a lawyer), the study revealed a system in which judges appointed attorneys who were friends or campaign contributors, especially if they were good at speeding the case through the court. The study confirmed that many state trial judges operated a patronage system: Attorneys who were beholden to judges for work turned around and made campaign contributions to those same judges. Former judge Lanford remembers a colleague, George Walker, who gave death penalty cases to a friend, the late Joe Cannon. "Joe was a nice man, but he was incompetent to handle capital cases," Lanford recalls. "He was George’s buddy. He got the cases because he moved them. There was pressure—keep costs down, keep things moving."
Such a system inevitably wound up embracing incompetence. Cannon was one of the infamous sleeping lawyers; he bragged about hurrying through trials. In the murder trial of Calvin Burdine, Cannon slept during the questioning of witnesses, and though he knew about mitigating character witnesses, he failed to bring them into court to testify. Burdine was convicted and got the death penalty. Then there was Ronald Mock, who kept getting appointments (and a steady paycheck) despite sloppy lawyering that caused him to be disciplined five times by the state bar. Mock defended more than a dozen men who wound up on death row.

To the Legislature’s credit, the patronage system that bumbled so many men to death row has been improved by the passage, in 2001, of the Fair Defense Act. Though it is still up to individual counties how they appoint attorneys to defend the poor, the act says that judges have to adopt stricter procedures for appointing attorneys, specify their qualifications, and pay a "reasonable fee." Counties also have to set standards (at least five years of criminal-law experience) and require continuing-education seminars in defending criminals. For the first time, the state has provided money to supplement what counties pay for indigent defense—a total of $19.7 million for 2002 and 2003. That is approximately 10 percent of the total cost; most states pay half. The law has been in force only since January 2002, so it’s difficult to gauge its effectiveness. Jim Bethke, the director of the Task Force on Indigent Defense, says, "Anecdotally, things have improved." But some defense lawyers remain unimpressed. "Texas has developed a culture of bad legal representation," says veteran Austin attorney Rob Owen, who has defended more than fifty death penalty cases. "Just paying more money per hour provides more money for poor representation."

Ernest Willis would be dead today if not for his appellate lawyers. Back in 1989, Willis had lost his direct appeal before the Court of Criminal Appeals (CCA), the one that automatically follows a guilty verdict. After that came his writ of habeas corpus, an appeal that concerns new evidence and violations of constitutional rights (also filed before the CCA). Attorneys with the Texas Resource Center, a now-defunct federally funded organization that represented poor death row inmates, and then Latham and Watkins, a large international firm with offices in New York, put on the kind of vigorous defense for Willis that court-appointed lawyers in Texas could not afford. For instance, Latham and Watkins, working pro bono for Willis since 1995, has used five lawyers, a private investigator, a professor of psychiatry, a forensic psychologist, a neuropharmacologist, and an arson investigator. Willis’ appellate attorneys looked at the county jail logs and discovered the daily dopings. They tracked down the psychological evaluation that said Willis was not a future danger. And they looked into the strange story of David Long, a convicted ax-murderer who used to make and sell bathtub speed with Billy Willis. The born-again Long had met Ernest Willis in the dayroom at the Ellis prison unit in 1990. Eventually he confessed to the prison psychiatrist that he had set fire to the Iraan house. The psychiatrist believed Long and set up a videotaped confession in 1990, during which Long confessed in detail, saying he had driven from Round Rock to Iraan that night, drinking and shooting speed. When he got to the house, he started the fire with a mix of Wild Turkey and Everclear, his favorite drink. Long had motive ("I hated the dude," he said about Billy, toward whom he had various druggy grudges) and a history of violence: In 1983, after being fired by his boss, Long had used whiskey to set the man’s trailer on fire. "I killed him because I hated the son of a bitch," he said in a 1986 confession.

In 1995 lead attorney Jim Blank, of Latham and Watkins, went to the CCA with the new evidence. The court ruled in 1996 that trial judge Jones should hold hearings to determine whether Willis was entitled to a new trial. The wheels of justice ground slowly; hearings were held intermittently during the next three years. Blank brought forward the previously ignored witnesses, who testified to Willis’ good character. He found an arson expert who said the state’s pour-pattern theory was all wrong—the patterns on the floor could have been caused by any number of things. The expert had also done an experiment to see if Long’s Wild Turkey and Everclear cocktail was capable of setting fire to carpet and wood; it was. Blank got Woolard to admit on the stand to several serious trial errors, including failing to offer any character witnesses. ("I loaded my guns for the guilt-innocence question and felt so very strongly about that," Woolard offered.)

Jones was convinced: Willis had not gotten a fair trial. In June 2000, in a 33-page opinion, he ordered a new trial based on the withheld psychological profile, the mind-numbing drugs, and the ineffective assistance of counsel. All Ernest Willis needed was for the CCA to uphold Jones’s order, and he would get the shot at freedom he deserved.

DISORDER IN THE COURT

THE COURT OF CRIMINAL APPEALS is no ordinary court. The idea of a separate court of last resort for criminal cases is one that has been embraced by only one other state, Oklahoma. The court has always had its critics. Its isolation in a single area of the law caused it long ago to develop a fondness for legal hypertechnicalities at the expense of justice. It used to have a reputation for being pro-defendant, overturning cases for minor procedural defects. In the forties the CCA famously reversed the conviction of a murderer who had stomped an old woman to death because the indictment didn’t say he stomped her with his feet. Through the eighties, the court kept its reputation for overturning convictions and ordering new trials, reversing up to a third of its cases. The CCA was all Democratic until 1992, when the first Republican judge was elected. Outrage in 1993 over a brutal Houston murder—in which the CCA ordered a new trial because the cards containing the names of potential jurors were shuffled an extra time—led to the elections in 1994 of Republicans Sharon Keller and Steve Mansfield, and by 1999 all nine judges were Republicans. As with elections for DAs, elections for the CCA have increasingly emphasized how tough the candidate would be on criminals. Keller, now the presiding judge, has campaigned on the idea that failure to give the death penalty is a human rights violation. (She declined to be interviewed for this story.) In 2001 Judge Tom Price, the closest thing to a voice of moderation on the court, received an official reprimand from the Commission on Judicial Conduct for his 2000 campaign literature, which included the statement: "I have no feelings for the criminal. All my feelings lie with the victim." Indeed. Since 1994, the CCA has reversed only thirteen death penalty convictions on direct appeal, about 3 percent of the total cases—the lowest death penalty reversal rate of any state court of last resort in the country. The court is even tougher on habeas corpus appeals; since 1995, the CCA has granted new trials on death penalty writs only twice—out of more than five hundred writs coming its way. "From the seventies through the nineties, I got reversals on sixty percent of my habeas writs," remembers Houston defense attorney Randy Schaffer. "Since the mid-nineties, I doubt if I get ten percent reversed. Did I get real stupid? I don’t think so. The judges stopped looking at the damn cases."

When Judge Jones made his recommendation for a new trial for Willis, he was going out on a limb. Trial judges, who must face the local electorate, don’t arbitrarily recommend new trials for death row inmates. For this reason, appellate courts usually defer to trial judges, who are closest to the action. Not the CCA. "If the trial judge recommends that relief be refused, the court will follow the trial judge," says Charlie Baird, a Democrat who served on the CCA until the end of 1998. "But if the trial judge recommends relief be granted, the court will figure out some way to get around that recommendation."

In the change from Democrat to Republican, the court changed its philosophy but not its character: It is still hypertechnical. The most notorious example of this did not involve the death penalty. Roy Criner had received a 99-year sentence for the rape of a woman who was also murdered. In 1998 a DNA test proved that the sperm in the victim wasn’t Criner’s, and the trial judge ordered a new trial. In a 5-3 opinion written by Judge Keller, the CCA denied Criner a hearing on the new evidence. "The DNA evidence . . . does not establish his innocence," she wrote, noting that Criner could have used a condom or not ejaculated. Former judge Baird, who dissented, is still outraged: "The problem with Keller’s position was that those arguments were never made by the state. Keller left any semblance of being an impartial judge behind and became a partisan advocate for the prosecution. And it begs the question, Why would anyone want an innocent man to stay in prison?" Judge Price later wrote that the decision had made the CCA a "national laughingstock." Keller didn’t help matters when she gave an interview in 2000 for Frontline, discounting the DNA evidence and calling the victim "promiscuous." About Criner’s little innocence problem, she said, "He has to establish unquestionably that he is innocent, and he hasn’t done it." When asked how a person could prove he was innocent, she replied, "I don’t know. I don’t know." She’s right: It’s almost impossible under the court’s standard, which is "clear and convincing evidence." If exonerating DNA isn’t "clear and convincing," what is? (Criner was eventually freed after the Board of Pardons and Paroles recommended that he be pardoned.)

The CCA has also made it almost impossible to show that the state violated a defendant’s right to a fair trial. The court typically describes mistakes or misconduct during a trial as "harmless error." In other words, the defendant would have been convicted anyway. Perhaps the most infamous examples of harmless error occurred in the sleeping-lawyer cases, one of which involved Calvin Burdine. Even though the trial court said he should get a new trial, the CCA overruled. (A federal judge rejected the CCA’s opinion in June, and he will get a new trial next year.)

The most troublesome use of harmless error was in 1996, when the CCA ruled on the capital murder conviction of César Fierro, the suspect who had confessed after being warned that his parents would be tortured in Mexico. In a July 1994 affidavit, the DA at the time of the trial, Gary Weiser, said, "I believe that Medrano and Palacios colluded to coerce Fierro’s confession." Had he known, he says, he would have recommended that the judge suppress the confession and dismiss the case unless he could have corroborated other testimony. The trial judge found a "strong likelihood" that the confession had been coerced and said Fierro should get a new trial. Alas, the CCA overruled a judge once again. Yes, Keller wrote, the police had lied about coercing a confession, but the trial court would have found Fierro guilty anyway. "[W]e conclude that applicant’s due process rights were violated," she wrote. "But, because we conclude that the error was harmless, we deny relief." Though he believes Fierro committed the murder, Weiser thinks he deserves to go free. "I was a prosecutor for ten years, and I put a lot of people to death," he says. "I never lost one. But to execute a man on illegally produced evidence—it’s wrong. It’s not justice. Nobody should be convicted on illegally obtained evidence." Once again: If violating a citizen’s right to due process and threatening torture isn’t harmful, what is?

One of the more baffling things about the CCA is its failure to respect the fact that competent counsel is an essential part of the constitutional guarantee of a fair trial. The CCA’s position is that any licensed attorney meets the competency standard. For example, in 1997 a death row inmate named Ricky Kerr wrote the CCA, saying he was worried that his neophyte court-appointed appellate lawyer was overlooking his constitutional claims and that he wanted a new attorney. The court refused. The attorney subsequently botched the appeal, which the CCA dismissed. A federal judge stayed Kerr’s execution and called the CCA’s actions in the case "a cynical and reprehensible attempt to expedite petitioner’s execution at the expense of all semblance of fairness and integrity."

The CCA’s critics say that the court is result-oriented, ruling on ideology. Asked to explain the court’s sometimes bizarre opinions, former judge Baird says, "They are beyond comprehension. They cannot be understood because they are the product of judges who are intellectually dishonest. They first determine the result they want, and then they distort the law to fit that result." But a former colleague of Baird’s, Mike McCormick, who served on the court from 1980 to 2000, thinks critics have an agenda of their own: "Calling a court result-oriented, well, it depends whether you’re on the winning side or the losing side."

The real question is whether the role of the court should be restricted to construing the law or broadened to include dispensing justice. McCormick believes the CCA’s job is to interpret the law: "One individual judge’s concept of justice is not what the court is all about." And what about cases like Ernest Willis’, where it looks like an injustice is being done, where it looks like the guy really might not have committed the crime? "If you have evidence of actual innocence," says McCormick, "the vehicle to get it in the system is the governor and clemency."

The Board of Pardons and Paroles is often the last chance for the condemned. It isn’t much of a chance, though, and it isn’t much of a board either. The eighteen members, all appointed by the governor, have never gotten together to vote in the past quarter of a century. They’ve never even conducted a hearing. They individually consider the cases and then vote, by fax and e-mail. "We vote on our best gut feeling," says member Paul Kiel, "with all the information we have." A pardon can be granted by the governor only on the board’s recommendation. But the board has granted only two death penalty pardons since 1990, and both were requested by prosecutors. In short, the board has neither the desire nor the authority to deliberate issues of innocence. Board chairman Gerald Garrett says that innocence should be up to the judicial system. "I don’t think we should casually set aside rulings of the courts," he says. It’s a catch-22 worthy of the whole Texas death penalty system: No one cares about the possibility of innocence.

And so, six months after Judge Jones ordered a new trial for Ernest Willis, the Court of Criminal Appeals, in a six-page reply, denied all relief. The state’s court of last resort found that Willis hadn’t proved that he took the anti-psychotic drugs involuntarily; that perhaps the state had an "essential state policy" in giving them that Judge Jones never asked about; that Woolard used "reasonable professional judgment" in not calling character witnesses; and that the suppressed psychological report regarding future dangerousness was "inconclusive," an interpretation the psychologist, Jarvis Wright, disagreed with, later saying in an affidavit that he saw "no evidence that Mr. Willis would pose a future danger." Doping, cheating, bumbling—if these don’t trouble the Court of Criminal Appeals, what will?

WHAT NOW?

JIM BLANK HAS FILED A habeas petition in federal court and hopes for oral arguments in Midland soon. But the odds aren’t good—since Congress passed the Anti-Terrorism and Effective Death Penalty Act in 1996, the federal courts have been severely limited in granting habeas relief. Willis is beginning his sixteenth year on death row. In October 2000 he married for the seventh time, to Verilyn Harbin, the sister of former death row inmate Ricky McGinn, who was executed that same year. The two started writing each other a few years ago, then met and fell in love through the Plexiglas windows of the visitor’s cage. She says, "He is the most loving person I’ve ever met." He says if not for her, he would have given up already.

Meanwhile, former Pecos County prosecutor Johnson, now a defense attorney, still thinks Willis is guilty. "Twelve grand jurors and twelve members of the jury—that’s twenty-four people who made the decision unanimously," he says. He and other defenders of the Texas death penalty process insist that the system works. This, says Judge Michael Keasler, of the CCA, is the reason the court doesn’t overturn more cases: "They’re tried well. That’s a tribute to the jobs the trial judges, prosecutors, and defense lawyers are doing." Try telling that to the federal judges who have castigated the system. Or to Blank. He and his firm have worked billable hours in excess of $1 million trying to get Willis off death row. Ultimately, the only death row inmates who stand a chance in Texas are those with pro bono attorneys—lawyers with the resources, experience, and desire to take on the state. And this is the final proof that the system doesn’t work. Every Texan who has walked free from death row has done so with outside help—filmmakers, TV stars, preachers, activists, and pro bono lawyers, not the attorneys appointed by the state to represent them. They got out in spite of the system, not because of it.

It’s an unfair system, and we need a statewide debate on how to straighten it out. The 2001 legislative session showed that capital punishment sits heavily on people’s minds. Lawmakers made some changes, but more are needed: For example, beef up the Fair Defense Act, ensure that claims of innocence backed by new evidence get a hearing, restructure the Board of Pardons and Paroles, change the way we select judges to the CCA—or maybe just abolish the damned thing. At the very least, the Legislature should institute a two-year moratorium on executions, the length of one legislative cycle, while it studies the problem. In the long run, this won’t prevent any justifiable executions, but it will make sure that every execution is, in the best sense of the word, justified.

FREE AT LAST

SIX WHO WALKED OFF DEATH ROW.

RANDALL DALE ADAMS was convicted of the 1976 killing of a Dallas policeman who had stopped a car driven by David Harris. Adams said he wasn’t even in the car at the time, but Harris said Adams was the gunman. At the trial, the state relied on an eyewitness who had picked someone else out of a lineup, as well as Harris, a sixteen-year-old with a long juvenile record. As a juvenile, he wasn’t eligible for the death penalty. But Adams was, and he got it. In 1988 The Thin Blue Line, a documentary about the case, was released to great acclaim and Harris confessed. A year later Adams’ conviction was overturned, and he was granted a new trial. The DA dismissed charges, and Adams was freed.

CLARENCE BRANDLEY was a black janitor convicted of the 1980 rape and murder of a white teenager at Conroe High School. Police officers intimidated a witness who said one of the school’s four white janitors might have done it and refused to seek evidence that would have exonerated Brandley, such as blood samples from other potential suspects. Ten years later, with new attorneys, a New Jersey ministry, and 60 Minutes on his side, his conviction was overturned, and after the prosecution declined to retry, he was released in 1990. Whitewash, a Showtime movie about the case, was released earlier this year.

RICARDO GUERRA, an illegal immigrant, was riding in a car in Houston in 1982 with friend Roberto Flores when they were stopped by a policeman. Shots were fired from Flores’ gun, and both the officer and Flores were killed. Though all evidence pointed to Flores as the shooter, the police went after Guerra, hiding evidence pointing to Flores, bullying witnesses to lie, even threatening to take one witness’s child away if she didn’t cooperate. After Vinson and Elkins took the case pro bono, Guerra’s conviction was overturned in 1997 by a federal court, which called the police misconduct "outrageous." The DA dropped all charges, and Guerra was freed.

KERRY MAX COOK was convicted of sexually mutilating and killing a woman in 1977. His sentence was overturned in 1997 because the prosecution had withheld evidence and used statements from a witness who had previously made conflicting statements. Days before a new trial, Cook pleaded no contest and was released. Soon afterward, DNA tests on semen found in the woman’s underwear proved it didn’t belong to Cook after all but to her married boyfriend.

MUNEER DEEB was convicted of hiring David Wayne Spence to kill one of the three victims of the 1982 Lake Waco murders. The only substantive evidence against him came from two jailhouse informants, one of whom later recanted. The Texas Court of Criminal Appeals overturned the conviction in 1991, and Deeb was acquitted at a new trial."

Harold Levy...hlevy 15@gmail.com;

LARRY SWEARING CASE: PART FIFTEEN: FASCINATING PERSPECTIVE' MICHAEL HALL'S ARTICLE: "THE SCIENCE OF MURDER"; TEXAS MONTHLY;

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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A fascinating perspective on the Larry Swearingen case is found in an article by Michael Hall which appears in the January issue of Texas Monthly issue under the heading, "The Science of Murder."

"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," the article begins;

"Innocent men in prison often have two things in common," it continues;

"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 to get a stay of execution as well as DNA testing. If they don’t succeed, it is entirely possible, even likely, that the State of Texas will execute an innocent man in two and a half weeks.

A Shaky Case
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. She had been strangled with one leg of a set of panty hose. Around her neck and face there was some decomposition from maggots as well as evidence of rodent scavenging. She was clothed but her shirt had been bunched up around her neck, and though her torso was bare, it showed no evidence of having been scavenged by the wild pigs, crows, raccoons, or vultures that live in the forest. Her corpse was not bloated, and police reported no foul smell. In fact, the hunters had initially thought she was a mannequin. The body appeared to have been in its final resting place for only a short period of time.

Swearingen, an ex-con who was working as an electrician, had met Trotter on December 6 and asked her out on a date. She stood him up the next day, but on December 8 they rendezvoused on campus. That same day she disappeared, making Swearingen one of the last people to see her alive. Three days later, he was arrested for outstanding traffic warrants and put in jail, where he remained after becoming a suspect in Trotter’s disappearance. When her body was found, Swearingen had already been in jail for three weeks.

Though no one saw Trotter leave the campus with Swearingen, the state was able to stitch together a tenuous narrative that had Swearingen kidnapping her in his truck, taking her to his trailer, raping her, killing her, and dumping her in the forest. (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, and there were fibers found on her jacket that “appeared to be” from Swearingen’s jacket and other fibers found on her and her clothes that were “similar to” carpet fibers from his trailer and truck seat.

Swearingen made two cell phone calls that afternoon, and because the calls were routed through a tower near the crime scene, the prosecution said that proved he had dumped the body there. As for proof of rape, Harris County chief medical examiner Joye Carter, who did the autopsy, found no evidence of violent penetration of Trotter, but she did say there was some discoloration of the vaginal wall. Though this could have come from normal intercourse, the prosecution used this as evidence that Swearingen had raped Trotter. When the Court of Criminal Appeals later took up Swearingen’s appeal, it admitted, even as it affirmed his guilt, “The forensic evidence is inconclusive.”

The most damning piece of evidence against Swearingen was another leg of panty hose found in the trash outside his trailer four days after Trotter’s body was located. Even this was not as clear-cut as it should have been. When the fabric was found, the trailer had already been fruitlessly searched twice by half a dozen deputies who turned up nothing. It was matched to the piece around Trotter’s neck by a DPS criminologist. Swearingen’s appellate attorney James Rytting wrote in an appeal that the pantyhose matching “was not based on scientific or forensic principles. The pantyhose material . . . can be easily stretched or distorted, so ‘matching’ may easily be the artifact of the examiner’s manipulations, whether intentional or unconscious.”

The case wasn’t entirely circumstantial. The state also called medical examiner Carter, who testified that she thought Trotter had most likely been killed on or about the day she disappeared. She based her opinion on the body’s external condition—the decomposition and maggot activity around the head and neck. She wasn’t asked—and didn’t tell—about the condition of the body’s internal organs, which were remarkably intact for a person who had supposedly been dead for so long.

The defense had two important things on its side that should have given the jury pause. Most critically, blood was found underneath one of Trotter’s fingernails and DNA analysis proved it was not Swearingen’s. Also, a pubic hair found in a vaginal swab was found not to be his. But the defense pathologist didn’t question why Trotter’s body was in such good shape, nor did the expert question the prosecution’s theory that she had died on or around December 8. The jury found Swearingen guilty and gave him the death penalty in June 2000.

The Science of Death
It wasn’t until Swearingen was given his first execution date, January 24, 2007, that he began to get medical science on his side. First came the bug guys, or forensic entomologists, who use insect larvae found in corpses to figure out time of death. On January 22, appellate attorney Rytting filed a habeas corpus appeal anchored by the testimony of an entomologist who said that, based on temperature reports that said the average temperature that month was 50 degrees with highs in the mid-70’s, the earliest those maggots could have begun colonizing her body was December 18—a week after Swearingen was put in jail. (Swearingen himself, while studying the temperature data, had found a crucial error in the numbers that showed it had actually been warmer than the climatologists had initially reported.)

The CCA stayed the execution and called for a hearing to look into the matter in the trial court. At the hearing, another entomologist, James Arends, testified; he noted that there was no evidence of maggot colonization in the anal and vaginal regions, as would be expected in a body left in the wild for so long. He also pointed out that the body hadn’t been picked on by the thousands of wild pigs, crows, and vultures that live and feed in the forest. (Or, as he wrote in an affidavit, “It is very common to find near to complete skeletonization, and bones scattered over a wide area by scavengers, in cases where remains of missing persons are not recovered for significant periods of time after being left in locations such as the location in this instant case.”) Arends’s conclusion? Trotter’s body had been there no longer than a week.

Pathologist Luis Sanchez, the current Harris County medical examiner, also testified at the hearing, saying that a body in the forest 25 days would show more decomposition, color change, bloating, and skin slippage. He also explained that the autopsy showed Trotter’s internal organs had been in good enough condition to be pulled out and sectioned; however, organs begin to break down upon death. The pancreas, for example, usually liquefies completely within 24 to 48 hours. Sanchez’s conclusion: The body hadn’t been in the forest for more than 14 days.

Unbelievably, the CCA denied that appeal without even commenting on the forensic science. Rytting filed another habeas appeal last year that included affidavits from Larkin and Lloyd White, the Deputy Tarrant County Medical Examiner. Larkin said, “December 23 is the soonest that Trotter’s body could have been left in the woods, which is to say, twelve days after Mr. Swearingen was incarcerated.”

White thought the conditions of the organs made it more likely Trotter died close to January 2, 1999. He viewed photos of her heart; they revealed that “the muscle is still red and relatively fresh looking . . . the appearance of the heart is what one would expect to find upon an autopsy of a recently deceased individual.” White also wrote, “Unfortunately, the conviction in this case rests upon misleading forensic pathological testimony.”

He was referring to the words of Joye Carter. She had moved on from Harris County, but Rytting tracked her down in Marion City, Indiana, where she was the chief forensic pathologist. He got her to reread the Trotter autopsy report and other materials—such as the temperature reports. Carter realized she had made a mistake, and now she submitted her own affidavit, in which she admitted it. By her calculations, the body had been in the forest for only 14 days, not 25. Carter based her new opinion on the condition of Trotter’s bare torso as well as her internal organs. Plus, she noted how Trotter had weighed 109 pounds at a doctor’s examination on November 23; when found, she weighed 105. As Larkin wrote in his affidavit, “even if a corpse is not scavenged, a body will lose up to 90 percent of its weight in less than 25 days.”

Once again, the upshot of all of this is simple: Trotter was murdered while Swearingen was in prison. Rytting added other claims in the 2008 appeal—that detectives knew Trotter was getting threatening phone calls from another man and that there was evidence that Trotter and Swearingen had actually been dating. The CCA again asked the trial court to hold a hearing to look into these allegations—but only the latter ones, not the ones dealing with pathology or entomology. Again, the highest court in the state said nothing about the science or the doctors and their claims that Trotter was killed long after Swearingen had been locked up. “How can that not merit a new trial?” asks Rytting. “In order to merit a new trial, we have to show that, given the new evidence, no rational juror would have convicted Swearingen. There is solid forensic evidence to show this and there is nothing to counteract it on the other side except for Carter’s testimony, which she has since recanted. The truth is, if they tried Swearingen today he would walk. You put the testimony of those physicians and scientists in front of a jury, they’re going to acquit.”

Reckoning
The CCA denied those final two claims in December, and Swearingen was given his new execution date: January 27. At this point, he doesn’t have a lot of options. Rytting will petition the US Court of Appeals for the Fifth Circuit to try and get them to allow another federal appeal, though the federal standard for bringing in new evidence is tough. On January 7, Rytting, with help from the New York–based Innocence Project, filed a request for a stay of execution—as well as more DNA testing. The attorneys want to use modern-day short tandem repeat (STR) testing, unavailable in 2000, to compare the DNA profile taken from the blood found under Trotter’s fingernail and put it into the federal CODIS database of DNA profiles of 6.3 million convicted offenders. They also want to use the new technology of “touch DNA”—it can detect DNA left behind in skin cells (it recently exonerated the parents of JonBenet Ramsey)—on the panty hose around Trotter’s neck and on her clothes, under the theory that the killer left cellular evidence behind as he dragged Trotter’s body through the forest.

It would be nice if, at this late date, the CCA showed some respect for science and granted the testing. It would also be nice if the high court took a step back and showed some respect for all the medical science it has ignored in Swearingen’s case. His conviction was based, as Dr. White said, on “misleading forensic pathological evidence”—as well as flimsy circumstantial evidence. Of course, cases are tried on circumstantial evidence all the time (often, that’s all law enforcement can find), but when circumstantial evidence is as tenuous as this was, and when it butts up against scientific evidence—when one says one thing and the other says another—you would like to think that the highest court in the state would at least give the science a look.

The bottom line: Someone killed Melissa Trotter and dumped her body in the Sam Houston National Forest. But that someone was not Larry Swearingen."

Harold Levy...hlevy15@gmail.com;

LARRY SWEARINGEN CASE: PART 14; IS LARRY SWEARINGEN GUILTY OF CAPITAL MURDER? A HOUSTON CRIMINAL DEFENCE LAWYER'S AND PARALEGAL'S POINT OF VIEW:

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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An informative analysis of the Larry Swearingen case was published by Houston criminal defence attorney John Floyd and paralegal Billy Sinclair on the criminal law blog "criminal jurisdiction," on February 4, 2009, under the heading: "Is Larry Ray Swearingen guilty of capital murder;"

"Is Larry Ray Swearingen guilty of capital murder? The State of Texas, through Montgomery County Assistant District Attorney Marc Brumberger, believes that he is. The parents of Melissa Trotter, Charles and Sandra Trotter, believe that he is. The Texas Court of Criminal Appeals believes that he is," the analysis begins;

"But Swearingen’s attorney, James Rytting, the New York-based Innocence Project, and a host of forensic pathologists, including Glenn Larkin, strenuously believe that he is not," it continues;

"As Larkin recently told Texas Monthly Magazine: “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.” While the Houston Chronicle, in a January 23, 2009 editorial, did not go as far as Larkin, the respected editorial board of the newspaper said: “He may not be a saint, but Swearingen does not deserve to die for someone else’s crime.”

The United States Court of Appeals for the Fifth Circuit is not concerned one way or the other about Swearingen’s guilt or innocence. The appeals court has long held that the execution of an inmate who has demonstrated “actual innocence” does not offend federal due process of law. The appeals court, however, recently stayed Swearingen’s pending execution and ordered a hearing to determine (1) if state prosecutors engaged in prosecutorial misconduct and (2) if he was adequately represented at trial by defense counsel. See: In Re: Larry Ray Swearingen, No. 09-20024, Jan. 26, 2009 [Online citation unavailable].

We cannot conclude whether Swearingen is innocent or guilty. Our intent is to lay out the legal and factual background of his case so our readers can draw their own conclusions based upon the evidence we’ve gleaned from the public record and court decisions.

LEGAL BACKGROUND

Larry Ray Swearingen, an electrician who lived in Willis, Texas, was arrested on December 11, 1998 by Montgomery County law enforcement authorities on outstanding charges unrelated to the murder of Melissa Trotter.

The body of Melissa Trotter was found on January 2, 1999 in the Sam Houston National Forest.

Swearingen was subsequently indicted by a Montgomery County grand jury for capital murder pursuant to Tex. Penal Code, Art. 19.03(a)(2)—a murder committed during the commission or attempted commission of either (1) a kidnapping or (2) an aggravated sexual assault.

A Montgomery County jury convicted Swearingen on July 11, 2000 and assessed his punishment at death.

Swearingen filed a mandatory direct appeal to the Texas Court of Criminal Appeals. That appeal was denied on March 26, 2003. See: Swearingen v. State, 101 S.W.3d 89 (Tex.Crim.App. 2003).

While his direct appeal was pending, Swearingen on March 11, 2002 filed his first state habeas corpus application. He raised ten claims for relief. The court of criminal appeals directed the trial court to make factual findings and legal conclusions on the writ application. The trial court heard, and rejected, Swearingen’s claims. The appeals court adopted the trial court’s ruling on May 21, 2003. See: Ex Parte Swearingen, No. WR-53,613-01 [Online citation unavailable].

On May 21, 2004, Swearingen filed his first federal writ of habeas corpus in the U.S. District Court, Southern District of Texas. He argued that there had been insufficient evidence presented at his state trial that he killed Melissa Trotter during the commission or attempted commission of either a kidnapping or a sexual assault. The district court denied habeas relief but issued a certificate of appealability authorizing Swearingen to appeal to the Fifth Circuit. Swearingen appealed to the Fifth Circuit raising the insufficiency of evidence claim and putting the appeals court on notice that he intended to file a future “actual innocence” claim. The Fifth Circuit was not impressed by either issue. Only July 31, 2006, the court denied the habeas claim and warned Swearingen’s counsel that if he intended to file an “actual innocence” claim, he should do so promptly. See: Swearingen v. Quarterman, 192 Fed. Appx. 300 (5th Cir. 2006), cert. denied, 549 U.S. 1216, 127 S.C. 1269, 167 L.Ed.2d 93 (2007).

While the federal habeas proceedings were pending, Swearingen filed motions in state court in the fall of 2004 seeking DNA testing of certain evidence and requesting an evidentiary hearing on the matter. The trial court denied these motions in April 2005. Swearingen appealed this decision to the Texas Court of Criminal Appeals. That court upheld the trial court ruling on February 1, 2006. See: Swearingen v. State, 189 S.W.3d 779 (Tex.Crim.App. 2006).

In January 2007, Swearingen filed his second state application for writ of habeas corpus. The Texas Court of Criminal Appeals determined that the trial court should enter factual findings and legal conclusions on six of the claims presented the habeas application. The trial court heard, and rejected, all six claims, and the court of criminal appeals adopted the trial court’s ruling on January 16, 2008. See: Ex Parte Swearingen, 2008 Tex. Crim. App. Unpub. LEXIS 17 (2008).

On January 16, 2008, Swearingen filed his third state application for writ of habeas corpus raising another six claims for relief. The Texas Court of Criminal Appeals on March 5, 2008 found that four of the claims were an “abuse of the writ” but remanded two of the claims to the trial court for factual findings and legal conclusions. The two claims dealt with whether the state had withheld exculpatory evidence and sponsored perjured testimony. See: Ex Parte Swearingen, 2008 Tex. Crim. App. LEXIS 169 (2008).

The trial court heard, and rejected, the two claims dealing with prosecutorial misconduct, and the court of criminal appeals adopted the trial court’s ruling on December 17, 2008. See: Ex Parte Swearingen, 2008 Tex. Crim. App. Unpub. LEXIS 948 (2008), pet. for cert. filed (U.S. Jan. 14, 2009).

Facing a January 27, 2009 scheduled execution, Swearingen on January 14, 2009, filed motions in the Fifth Circuit Court of Appeals for leave to file a second federal petition with the court and for a stay of his pending execution. He raised seven claims for relief in these motions, including the “actual innocence” claim. The appeals court on January 26, 2009 granted the motions with respect to two of the claims: 1) whether the state sponsored perjured testimony and 2) whether Swearingen had been denied effective assistance of counsel. See: In Re: Larry Ray Swearingen, No. 09-20024 [Online citation unavailable].

FACTUAL BACKGROUND

Larry Ray Swearingen apparently met Melissa Trotter on Sunday, December 6, 1998, in Montgomery County. They chatted at some length. Swearingen managed to get Melissa’s telephone number. They made plans to see or talk with each other the next day. Swearingen bragged to co-workers that he would be taking Melissa lunch. But Melissa did not show up for the meeting. Swearingen explained to his co-workers that he had called Melissa and learned she had to take a test. They did not believe him. They teased him about being “stood up” by Melissa. Swearingen was reportedly angry the rest of the day.

On the evening of December 7 Swearingen transported some furniture in his red pickup truck. He was accompanied by two acquaintances, Bryan Foster and William Brown. Swearingen told Foster and Brown that he was going to meet Melissa the next day – and if everything went okay, they would have lunch together. Later that evening at Foster’s house Swearingen called Melissa and talked about meeting her for lunch and helping her study for an exam.

The following day, December 8, Swearingen met Melissa at approximately 1:30 p.m. at the Montgomery College library in Conroe. Melissa was eating tater-tots she had purchased from the school’s cafeteria. The couple sat around a computer chatting amicably before leaving the library together at around 2:00 p.m.

Melissa’s vehicle remained the college parking lot.

Five minutes after exiting the library, Swearingen returned a page he had received. He told the calling party he would call back later because he was having lunch with a friend.

Swearingen returned to his trailer and left sometime between 2:00 p.m. and 3:30 p.m. He returned again to the trailer sometime before 5:30 p.m. He asked his landlord some questions before leaving again to pick up his wife, Terry, from her mother’s house. This time period was uncertain but was placed at sometime between 4:30 and 5:30 p.m. A neighbor saw Swearingen’s truck coming and going that afternoon but could not see who got in or out of the vehicle because of its tinted windows.

When Swearingen returned home with his wife, she noticed a pack of Marlboro Light cigarettes and a red lighter on top of the television. The items caught her attention because neither she nor Swearingen smoked. But evidence revealed that Melissa smoked Marlboro lights.

Later, during the evening of December 8, Swearingen called a former girlfriend named Phyllis Morrison and told her that he was in trouble. He said the police might be after him.

Swearingen was arrested on December 11 in connection with several outstanding warrants unrelated to the Melissa Trotter case. While being handcuffed, he told the police that his wrists and ribs were sore from a bar fight he had been a week earlier.

Melissa Trotter’s body was found in the Sam Houston National Forest on January 2, 1999. A piece of hosiery, still tied as a ligature, was around her neck. The body was on its back in a pile of bushes. Her right arm was above her head and slightly to the left. Her top and bra had been pulled up under her arms, leaving her breasts and back exposed. The body had creases running from the neck to the waist, probably caused by lying on the pile of bushes. Melissa had on jeans at the time of her death. The pants were open but the fly was closed. A right rear pocket had been torn downward, exposing part of her buttocks and red underwear. There were no scratches on the body’s exposed skin which indicated she had not been dragged to the spot where the body was found. She had on one shoe, and the other lay nearby. There was no soil on the shoes, indicating she had not walked to that location in the forest.

The location of Melissa’s body was in a heavily wooded, secluded, and remote area. The police had searched the area three times before without finding a body. One had to be within 20 feet of the body to see it.

Swearingen was familiar with this area. He had previously driven a date around this forest area a few months earlier in his pickup.

An autopsy revealed Melissa had died from asphyxia due to lacked of oxygen caused by ligature strangulation. The nylon ligature was cut from a pair of the pantyhose. The matching portion of the pantyhose was found in Swearingen’s trailer during a police search. However, two previous law enforcement searches had failed to discover the matching pantyhose. The New York Innocence Project is currently trying to obtain DNA testing of the matching pantyhose.

The autopsy also revealed a sharp-forced injury on Melissa’s neck that had been inflicted before she died and while her blood continued to flow. This area of injury also had animal tooth marks and activity around it.

There were no defensive wounds, such as broken fingernails, on the body. This suggested the nylon ligature had been tied around Melissa’s neck after she was unconscious. This suggestion was premised on the theory that a struggling Melissa would have fought hard against attempts to wrap the nylon ligature around her neck and caused defensive wounds.

Despite the body’s advanced stage of decomposition, the autopsy revealed that the left side of Melissa face was much darker than the other side. The report concluded this darken area had been caused by a bruise to that side of the face, indicating she had been struck in the face before her death.

The autopsy also revealed a deep bruise on Melissa’ tongue. The report concluded this bruise had probably been caused by a bite or a cut. This conclusion was premised on the theory that a blow under the chin would have pushed the lower jaw up onto the tongue, or that Melissa had bitten down on her tongue while being strangled.

The autopsy further revealed discoloration on Melissa’ vaginal wall. The report concluded this bruising could have been caused by sexual intercourse on the day prior to her death.

Fibers were removed from Melissa’s body. These fibers were similar to fibers found on Swearingen’s jacket, on the seat and headliner in his truck, and on the carpet in the master bedroom of his trailer. Fibers found in Swearingen’s truck were also similar to fibers found on Melissa’s jacket.

There were hairs found in Swearingen’s truck that appeared to have been forcibly removed from Melissa’s head.

The contents of Melissa’s stomach revealed what appeared to be some form of potato, chicken, and a small amount of greenish vegetable material. These contents indicated Melissa had eaten a recent meal before her death. It was clearly established that she had lunch with Swearingen on December 8.

While in jail, Swearingen reportedly sent a letter written in Spanish to his mother. Swearingen had used an English-Spanish dictionary to compose the letter and gotten a cellmate to copy it. The letter, purportedly written by someone named “Robin” and addressed to “Larry,” stated someone other than Swearingen killed Melissa. The translated letter read:

”I have information that I need to tell you about Melissa and Wanda. I was with the murderer of Melissa, and with the one that took Wanda from work. I am not sure what he did with Wanda, but I saw everything that happened to Melissa. He was talking to her in the parking lot. They went to school together is what he told me. “We drove for awhile, and then we went and had breakfast. I began to talk about sex when she said she had to go home.” He hit her in the left eye, and she fell to the floor of her car. He took her to the wood and began to choke her with his hands at first, then he jerked (jalar is slang) her to the bushes. He cut her throat to make sure that she was dead. Her shoe came off when he jerked (slang) her into the bushes. Her jabear (cannot make out/ no such word in Spanish) was torn. I am in love with him, and I don’t want him in jail. The man in jail doesn’t deserve to be in jail, either. To make sure that you know, I am telling you the truth. She was wearing red panties when R.D. murdered her. He choked her with his hands first, but he used A piece of rope the truck from his truck; he had a piece of black rope that he used in his boat to anchor it, or something, he said. When he dragged her from the car, he put her in the shrub on her back. I know that I should turn him in, but he told me that he would kill me, too, and I believe him. He has told about this murder to 3 other women in the past, will tell you that he smokes, and he smoked with her at the college at 2:30 and drove a blue truck. His hair is blonde and brown and lives here. His name is Ronnie, but that is all I can tell, if you want more information, say it on paper and I will continue to write, but I want to come in.”

See: Swearingen v. State, supra, at 92-95.

THE TEXAS COURT OF CRIMINAL APPEALS ASSESSMENT OF THE EVIDENCE AGAINST SWEARINGEN

At best, the evidence against Larry Ray Swearingen was circumstantial. The Texas Court of Criminal Appeals on direct appeal conceded at much. The state’s highest appeals court pointed out that the forensic evidence was “inconclusive” and the expert witnesses could not conclude that any one given explanation on this evidence was more likely than any other. For example, the experts could not positively state that there was a bruise or a knife wound on Melissa’s body, or that she had been unconscious when the ligature was applied. As for Swearingen’s fabricated Spanish letter, the court said it was not a “confession” and the jury could view it any way it wanted. The court, however, did point out that while the letter contained information inconsistent with the rest of the evidence, it stated information consistent with the “undisputed facts” of the case such as the cause of death, location of the body, and the color of Melissa’s underwear. The letter also supported the State’s theory that it was Melissa’s rejection of Swearingen’s sexual advances that “began the cycle of violence that led to her death.” Swearingen v. State, supra, at 96-97.

Based on the circumstantial evidence, and its reservations about it, the appeals court nonetheless found that:

“ … a rational jury could have concluded that: Trotter left the college with Swearingen in his truck. After she ate some chicken and green vegetables, he made sexual advances which she rejected. This rejection upset him and he hit her on the left side of her face. Then, through the use of the force or intimidation created by having hit her, he restrained her and substantially interfered with her liberty by confining her in his truck while moving her to the forest without her consent and that he did so with the intent to prevent her liberation by either secreting her in a place where she was not likely to be found or by using or threatening to use deadly force.

”A rational jury could also have concluded that at some point during the restraint, knowing that Trotter was unconscious or physically unable to resist, Swearingen intentionally committed acts in furtherance of his intent to have sexual relations with her, such as pulling up her bra and possibly penetrating her vagina. A rational jury could conclude that Swearingen compelled Trotter to submit or participate in such action by the use of physical force and without Trotter’s consent, as indicated by Trotter’s statement that she needed to go home when the conversation turned to sex. A rational jury could then find that Swearingen did attempt to, and succeeded in causing Trotter’s death in the course of the same criminal episode.” Id., at 96.

ACTUAL INNOCENCE CLAIM

Since his conviction, Swearingen has secured testimony from at least three current and former Chief Medical Examiners and another forensic pathologist who have concluded that Melissa Trotter’s body had been in the woods no less than 3 and no more than 15 days before it was discovered on January 2, 1999. Dr. Glenn Larkin said Melissa’s body had been in the woods and deceased no more than 3 to 4 days. Dr. Louis Sanchez concluded the body had been in the woods for 10 to 15 days but was “some place else before that.” Dr. James Arends, an entomologist, stated that the body was “stored someplace cold” [“frozen”) before being placed in the woods based on different decomposition of the body from one end to the other. Finally, and more recently, Dr. Lloyd White concluded Melissa had been dead no more than two or three days when her body was found.

This post-conviction forensic evidence is bolstered by an October 31, 2007 affidavit from former Harris County Chief Medical Examiner Joyce Carter, who testified at Swearingen’s trial that Melissa’s body had been in the forest for approximately 25 days. Carter’s testimony supported the State’s theory that Swearingen killed Melissa on December 8 and dumped her body in the forest that same day. Dr. Carter’s 2007 affidavit states she re-examined the autopsy evidence and changed her opinion. She states that had she been given additional forensic evidence that was not available to her prior to trial, she would have concluded that Melissa’s body had been in the forest no more than 14 days.

Since Swearingen was arrested on December 11, 1998 and in jail at the time these forensic experts state Melissa’s body was deposited in the Sam Houston State Forest, his attorney and the New York Innocence Project argue these experts make a compelling case of Swearingen’s “actual innocence.”

In granting the stay of execution, two judges of the Fifth Circuit panel were not so convinced and were actually dismissive of the “actual innocence” claim presented by Swearingen’s experts – both from a factual and constitutional perspective. Judges Jones and DeMoss at the outset pointed out that the Fifth Circuit “does not recognize freestanding claims of actual innocence on federal habeas review.” In Re: Swearingen, p. 6 (Slip Opinion) [citing Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003)].

As for the new forensic evidence, the judges took particular pains to stress that while each expert shared the opinion that Melissa’s body was not placed in the forest on December 8, 1998, the differences in their opinions as to how long her body had been in the forest before it was discovered “undermine[d] the credibility of their conclusions.” The refusal of these two judges to give credibility to the new forensic evidence was bolstered by the state’s post-conviction “entornological evidence” that Melissa’s body had actually been “colonized by the fly Cynomyopsis Cadavarina, a secondary colonizer, on December 8, 1998,” supporting its theory that her body had been placed in the forest that day. Finally, the judges noted that there was no expert testimony that weakened the link between the contents of Melissa’s stomach and the meal she had eaten with Swearingen on December 8, 1998. Id., at p. 6, n. 6.

THE CONSTITUTIONAL DILEMMA POSED BY SWEARINGEN

In a concurring opinion, Fifth Circuit Judge Jacques L. Wiener, Jr. articulated a constitutional dilemma posed by the Swearingen case. Judge Wiener stated:

“Although my concurrence in the foregoing opinion makes it unanimous, I write separately to address the elephant that I perceive in the corner of this room: actual innocence. Consistently repeating the mantra that, to date, the Supreme Court of the United States has never expressly recognized actual innocence as a basis for habeas corpus relief in a death penalty case, this court has uniformly rejected standalone claims of actual innocence as a constitutional ground for prohibiting the imposition of the death penalty. The Supreme Court has, however, made statements in dicta which at least strongly signal that, under the right circumstances, it might add those capital defendants who are actually innocent to the lists of person who—like the insane, the mentally retarded, and the very young—are constitutionally ineligible for the death penalty.

“I conceive the real possibility that the district court to which we return this case today could view the newly discovered medical expert reports as clear and convincing evidence that the victim in this case could not possibly have been killed by the defendant, yet find it impossible to force the actual-innocence camel through the eye of either the Giglio [prosecutorial misconduct] or the Strickland [ineffective assistance] needle, and thus have no choice but to deny habeas relief to an actually innocent person. Should that prove to be so, 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.” Id., at p. 10-11 (Slip Opinion).

Judge Wiener’s concurring opinion points out that under current federal habeas jurisprudence a condemned inmate who is actually innocent can be legally executed by the states absent a violation of a constitutional right clearly recognized by the United States Supreme Court. Put simply, a guilty condemned inmate with constitutional violations is entitled to a new trial while an innocent condemned inmate with no constitutional violations is not. That’s more than an “elephant in the room.” It’s ludicrous.

CONCLUSION

As we stated at the outset, we do not have enough information to draw a firm conclusion on Swearingen’s guilt or innocence. It is difficult to see the conflicting conclusions drawn by the medical experts as a “silver bullet” of innocence when compared to the indisputable evidence that Swearingen was the last person seen with Melissa while she was still alive and that he was aware of the undisclosed “red underwear” evidence as he stated in his fabricated Spanish letter. Neither sets of evidence—one favoring innocence, the other guilt—is “compelling” enough for us to draw a firm line in the sand on either issue.

However, we join with the Chronicle editorial that there has been enough “clear and convincing” medical evidence produced since Swearingen’s conviction to warrant further forensic testing and to prevent the condemned inmate’s execution. No one should be executed when doubts about guilt/innocence clutter the decision-making process."

Harold Levy...hlevy15@gmail.com;