High Court Won't Hear Death Row Inmate's Evidence of Innocence

By: Bob Drummond
San Francisco Chronicle
Monday, February 27, 2012

Feb. 27 (Bloomberg) -- The U.S. Supreme Court today refused to consider stopping the execution of Larry Ray Swearingen, a Texas death row inmate who says newly uncovered evidence proves his innocence.

Swearingen's lawyers had asked the high court to decide for the first time whether executing an innocent person constitutes cruel and unusual punishment under the Constitution.

Lower federal courts declined to intervene in Swearingen's case in part because, as the law now stands, even uncontested scientific proof of innocence isn't a valid reason for a federal judge to stop an execution.

Texas Attorney General Greg Abbott, who opposed Swearingen's request for a Supreme Court hearing, said Swearingen's new scientific testimony doesn't outweigh a "mountain" of other evidence "that Swearingen is guilty of capital murder."

Federal courts also don't need to intervene because Texas's justice system provides methods for review of innocence claims, the state attorney general's brief said. A state court has said it will consider Swearingen's claims, Abbott said. Swearingen also could get a pardon or commutation from Texas Governor Rick Perry.

'Brooding Omnipresence'

Questions about the constitutionality of executing an innocent person are a "brooding omnipresence" in federal law that have "been left unanswered for too long," Judge Jacques Wiener wrote in a 2009 ruling on Swearingen at the New Orleans- based 5th U.S. Circuit Court of Appeals. Swearingen's appeal "might be the very case" for the Supreme Court "to recognize actual innocence as a ground for federal habeas relief," Wiener wrote.

Swearingen was sentenced to die for the murder of 19-year- old Melissa Trotter, a college student who disappeared on Dec. 8, 1988, and was missing for 25 days before her body was discovered in Sam Houston National Forest, north of Houston.

Swearingen, who knew Trotter and was seen with her on the day she disappeared, was considered a suspect early in the police investigation. He was arrested Dec. 11, 1988, on unrelated warrants and has been in jail ever since.

Medical Examiner

Swearingen's lawyers say forensic specialists -- including the medical examiner who testified for the prosecution -- have looked at evidence that wasn't considered at Swearingen's trial and now agree that Trotter's body was placed in the forest no earlier than Dec. 18, 1998, a week after Swearingen's arrest.

More than that, Swearingen's lawyers say medical examiners who looked at tissue samples say Trotter's internal organs were in a condition suggesting that she was killed no more than several days before her body was found.

The Innocence Network, an umbrella group of more than 60 organizations that helps prisoners uncover favorable evidence, said in a friend-of-the-court brief that Swearingen has "an airtight alibi -- he was in jail when the victim was murdered."

Imposing the death penalty on someone who isn't guilty of a capital crime, Swearingen's lawyers said, would violate the Eighth Amendment's ban on cruel and unusual punishment and the 14th Amendment's due process protections.

Trotter's Hair

Texas authorities said strands of Trotter's hair were found in Swearingen's truck, and fibers matching Swearingen's jacket, bedroom carpet and truck upholstery were found on Trotter's clothing. Cleaning Swearingen's trailer after Trotter's body was discovered, the suspect's landlord found part of a torn pair of pantyhose that, prosecutors said, matched hosiery used to strangle the victim.

Swearingen's case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate's rights have been violated.

In a 1993 Supreme Court decision, seven justices said they at least presumed, for argument's sake, that the Constitution prohibits putting innocent people to death. The high court, however, has never turned that hypothetical discussion into a concrete rule of law.

Earlier Investigation

The court ruled in 1993's Herrera v. Collins decision that new evidence, by itself, says nothing about whether a defendant's rights were respected during an earlier investigation and trial. An inmate needs additional evidence of a separate constitutional violation to warrant a federal court's involvement, the high court ruled.

"Federal habeas courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution," then-Chief Justice William Rehnquist wrote for a 6-3 majority. "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."

'Truly Persuasive'

Rehnquist acknowledged the stakes would be keenest in death penalty cases.

"We may assume, for the sake of argument," he wrote, "that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim."

Even then, the court said, the standard for assessing new evidence would "be extraordinarily high."

In Swearingen's Supreme Court brief, his lawyers called the appeal an "extraordinary" case "in which the evidence of the petitioner's innocence is so compelling that his execution would violate the Constitution."

Legal Precedent

A federal judge who reviewed the new evidence declined to stop Swearingen's execution, in part citing legal precedent that claims of innocence alone don't warrant habeas corpus relief.

The district court also said Swearingen, who had previously sought federal court review of his conviction, couldn't meet strict legal standards permitting a second habeas corpus review because the newly presented evidence, such as tissue samples, existed at the time of his earlier appeal and could have been discovered before his first appeal with sufficient effort.

The case is Swearingen v. Thaler, 11-233.