News and Developments 2009: Innocence

Texas death row inmate Larry Swearingen was unanimously granted a stay one day before his scheduled execution by the U.S. Court of Appeals for the 5th Circuit on January 26.  “We think this is an extraordinary case of actual innocence,” said Swearingen’s attorney James Rytting.  “We’re hopeful that the federal courts will give the evidence a fair review.”  Judge Jacques Wiener, who concurred in the Circuit Court's opinion and stay, underlined the potential importance of the case. He said there was a "real possibility'' that the District Court, when it reviews Swearingen's evidence, could conclude that he is innocent.  Moreover, the judge said, "[T]he Supreme Court of the United States has never expressly recognized actual innocence as a basis for habeas corpus relief in a death penalty case. . . . [but] this might be the very case . . . .”  He added,  "To me, this question is a brooding omnipresence in capital habeas jurisprudence that has been left unanswered for too long.”

The Houston Chronicle is calling on Texas Governor Rick Perry to delay the execution of Larry Swearingen, which is scheduled for January 27.  The Chronicle notes that the forensic scientist who testified about the time of death of the victim at Swearingen's trial now believes the death occurred later, a time at which Swearingen was in police custody on another matter. Five other physicians and forensic experts concurred that the murder occurred after the time that Swearingen was arrested on a traffic matter.  Blood and hair samples from the victim also indicated the presence of another assailant.  Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told the Texas Monthly that “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

The Orleans Parish District Attorney’s office in Louisiana may file for bankruptcy because of a multi-million dollar law-suit award stemming from the office’s misconduct in a death penalty case.  John Thompson, a former death row inmate, was awarded $14 million after he was exonerated due to the withholding of evidence by the former District Attorney.  Thompson spent 18 years in prison, including 14 years on death row in Angola. The jury award was recently upheld by the U.S. Court of Appeals for the Fifth Circuit.  The District Attorney’s office said it can’t pay this and other settlements and will resort to bankruptcy in an effort to stay open.  “If those funds aren’t there, those people can’t afford to work for free,” said Rafael Goyeneche of the Metropolitan Crime Commission.  “That means it shuts down the district attorney’s office, but it also shuts down the entire criminal justice system.”