Legal Commentary

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

By Jeralyn

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

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

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

Their evidence:

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

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

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

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

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

Instead, the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed.

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

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

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

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

Full post as published by TalkLeft on January 24, 2009 (boomark / email).