Wednesday, January 30, 2013

Spectacular News in the Swearingen Case

Larry Swearingen's death warrant has been withdrawn and comprehensive DNA testing has been ordered by recently elected State District Judge Kelly Case. From Brandi Grissom's article in the Texas Tribune:
Update, Wednesday, Jan. 30, 5 p.m.: Montgomery County state district court Judge Kelly Case on Wednesday withdrew an order that had set the execution of condemned murderer Larry Swearingen for Feb. 27. The judge's decision came after a hearing in which Swearingen's lawyers argued that more time was required to accomplish DNA testing they believe will prove his innocence in the 1998 murder of Melissa Trotter. 
Montgomery County assistant district attorney Bill Delmore said he was disappointed with the decision, the first ruling in the case from the newly elected judge. Delmore said that prosecutors had offered to conduct the testing at the state's expense in an expedited manner that would allow the execution to proceed as scheduled. Swearingen's lawyers, however, declined. 
"Their refusal to negotiate on the timing of doing the testing between now and the execution date suggests their motion was primarily for the purpose of delay," Delmore said. 
Bryce Benjet, a lawyer for the New York-based Innocence Project who is representing Swearingen said that more time is needed to conduct the complicated testing that is necessary in the case. 
"We hope the district attorney will agree to conduct testing within the law so that Larry Swearingen can finally get the testing that can dispostively prove his innocence," Benjet said.
Previously, Assistant District Attorney Bill Delmore had said he hadn't read Swearingen's latest motion for DNA testing but would probably oppose it. Then District Attorney Brett Ligon agreed to DNA testing but insisted it be done expeditiously so as not to delay the execution. Now Judge Case has put an end to that nonsense and ordered both the testing and the time necessary to do the testing properly.

Last November, Judge Case defeated State Court District Judge Fred Edwards the general elections. Judge Edwards is the judge who recently ignored the science that proves Swearingen innocent by denying a new trial. (See The Most Innocent Man on Death Row)

If Preston Hughes had James Rytting as his attorney or had Judge Case ruling on his Motion of DNA Testing, Hughes would be alive today. It is due to such vagaries that one innocent man on death row is granted DNA testing while another is given the needle.

UPDATE: January 31, 2013
According to the Houston Chronicle, Judge Case did not order that DNA testing be conducted. Instead, he gave the prosecutor 60 days to respond to Swearingen's motion for DNA testing. The article does make clear that Swearingen's execution has been stayed. The article suggests that it could be three to four months before there is a hearing on Swearingen's Chapter 64 motion for DNA testing.  This is still really good news.


Anonymous said...

This is promising news, I hope the DNA testing proves his innocence once and for all, unlike Hank Skinners case where it still leaves doubt either way.

Anonymous said...

Swearingen is guilty. And Hughes was guilty. This is just more stall tactics by bleeding heart judges and lawyers like yourself. I find it ridiculous that the defense lawyers did not want to get the DNA testing done sooner than later. MORE stalling tactics. No matter, Swearingen will get his date with the gurney, sooner or later.

Andy said...

Hey Anonymous, if the DNA comes back exonerating Swearingen will you take back what you just said? And then maybe have a think about Preston Hughes.

Anonymous said...

Sure, no problem ! The DNA is going to put Swearingen right on the gurney where he belongs !

Anonymous said...

Mr. Swearingen is fortunate. His county of conviction, Montgomery County, has sent 18 men to death row since 1976. Of those 18, 15 have been executed, and 2 have had their sentenced reduced or overturned. Larry Swearingen is the only person at present from Montgomery County on the Texas death row. Texas executed 2 from there in 2012. While looking on the tdcj website, I noticed that the average stay on death row for the 15 executed offenders was quite short, averaging less than 10 years. I list the following 15 inmates here, along with their reception date to death row and their execution date.

Jonathan Green: 7/17/2002 - 10/10/2012
Keith Thurmond: 11/14/2002 - 3/7/2012
Michael Perry: 3/3/2003 - 7/1/2010
Larry Hayes: 5/26/2000 - 9/10/2003
Hilton Crawford: 7/25/1996 - 7/2/2003
James Colburn: 11/1/1995 - 3/26/2003
Richard Kutzner: 4/29/1997 - 8/7/2002
Gerald Casey: 11/15/1991 - 4/18/2002
Dennis Dowthitt: 10/30/1992 - 3/7/2001
Alvin Goodwin: 8/7/1987 - 1/18/2001
David Gibbs: 3/21/1986 - 8/21/2000
Glen McGinnis: 8/3/1992 - 1/25/2000
Daniel Corwin: 4/5/1990 - 12/7/1998
G.W. Green: 10/13/1977 - 11/12/1991
Joseph Starvaggi: 3/17/1978 - 9/10/1987

Montgomery County has unprecedented efficiency in ensuring the execution of its death row inmates. Larry Swearingen received his first execution date in January 2007, only 6 years, 6 months after his arrival to the Polunsky Unit. Without a skilled attorney, he would have met the same fate as these 15 men listed: Most of them executed within 10 years. The longest survived on death row 14 years.

In contrast, Preston Hughes, without sufficient legal help, had a stay on death row of 23 years, 6 months. Harris county (Hughes' county of conviction) is less timely and efficient at ensuring executions than Montgomery. 117 from there have met their end at the needle, but that is well short of half of the 287 who have been sentenced to death in that county.

In conclusion, I did not expect Swearingen to survive his fourth execution date. The past history of those from his county reinforced my hypothesis. A compelling case of actual innocence along with a superb legal team ensured his survival. One can hope that the courts will give full weight to the evidence his legal team has already presented and will again present. We await the results of the DNA tests.

Anonymous said...

That only says that Montgomery County is doing it right. Line 'em up and ship 'em out !

tsj said...

Save the too-cute "kill 'em all now" crap for the pro death penalty sites that encourage such tripe. On this site, we encourage free and open discussion based on reasoned argument.

Please feel free to make reasoned arguments. You could, for example, explain why you believe Swearingen is guilty. That would require a little more research and a little more thought, but you must be capable of that.

I'll leave your current comment up as an example of what is unacceptable. In the future, however, I will delete such childish comments as they arrive.

Anonymous said...

I posted that analysis of Montgomery county and the death penalty to emphasize the mortal peril that Swearingen (and any other death row inmates from that county) faces. I suppose it would make the "kill em all and let God sort em out" types cheer. I do believe that some crimes are worthy of capital punishment, but the current criminal justice system is currently too fallible. I don't actually "know" if he's guilty or not, but all of the evidence needs to be fully considered by an impartial court that doesn't merely rubber stamp the conviction and sentence. The courts thus far haven't given full weight to the forensics. For Larry Swearingen to be alive 12 and a half years after sentencing is a small miracle.

tsj said...

Comments such as yours are always welcome.

Angelika said...

Couldn't be more happy about this outcome.

Seriously, I can't understand why they have to do the DNA testing at all. The blood under the fingernails was tested for DNA. It was male and excluded Larry. He's innocent and still got he sentenced to death. The attorney, said he has proven his innocence 10 times over.

Anonymous said...

I said before that I didn't "know" if he was guilty or innocent. After reading your series on Swearingen, along with some articles online, I'm convinced that he's innocent of the crime. The forensics do not lie, and I believe the DNA will solidify his case of actual innocence even more. The fact that solid physical evidence hasn't already led to his release disturbs me. What is even more disturbing was that attempts to execute this man continue in light of the evidence and testimony of forensic scientists. The United States desperately needs a true safety valve in the judicial system to prevent these travesties. Appellate courts at all levels should have the power to consider evidence of actual innocence. It's my understanding that there is no "actual innocence" grounds for relief during post conviction appeals, unless there was a constitutional violation in the process of convicting the inmate.

Rick Bonin said...

This is very good news. Nice job with the troll.

Anonymous said...

Jesse Jacobs has also been executed.

Matthew Faler said...

TSJ - I largely agree with the science in this matter regarding how long Trotter had been dead when her body was found. However, a few lingering questions bother me (1) was she wearing the same clothes when they found her as she was last seen in? and (2) if she was alive for several weeks after she went missing, where was she?

tsj said...

You ask two $1,000,000 questions. I have a couple 10 cent answers.

First, I've wondered myself about the clothes. I've never seen that discussed. It seems as if the police could have clarified that point reasonably easily. A number of people saw her shortly before she disappeared. Was she wearing the same clothes or not? If the clothes were different, where did she change? If the clothes were the same, had she worn them continuously or had they been cleaned?

I suspect the police / prosecutor must know the answer. I suspect that since it is a secret, it doesn't help their case. My guess is that information about the clothing would tend to further exonerate Swearingen.

Regarding where she might have been, I speculated in my series Who Killed Melissa Trotter: Anthony Allen Shore.

Matthew Faler said...

I think the clothes would be an important item of evidence. I would imagine if she had been out there since Dec 11, the clothes would have some indication as such.

The Shore theory is an interesting argument. There are so many holes in this case, it is almost comical, how a jury could believe the state's story. On the other hand, being a civil attorney...I've seen juries do way crazier stuff, but hey it is only money, right?

Anonymous said...

So you think he killed Melissa while he was in County Jail?
Let's let the DNA evidence speak...with REAL testing, NOT EXPEDITED, so Melissa's parents can get some closure either way, once and for all.

Anonymous said...
This comment has been removed by a blog administrator.
tsj said...

To the most recent Anonymous commentor,

Even though I am on an extended hiatus, I nonetheless monitor the comment traffic on my blog. Please be aware that comments such as yours are discouraged on this site. Disagreeing with the others is permitted. Simple name-calling is not.

Since I have already warned of such behavior (even in this comment string), your comment has been deleted.

Anonymous said...

Before this last execution date, the DA stipulated to the evidence that the defense wanted tested, at the lab they chose, and with the expert they selected. The defense response was to object strenuously and demand the scheduled execution date be canceled. Now they are shit out of luck. They are not entitled to dna testing under Chap 64. So, hopefully Swearingen will be executed this year.

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