Another execution scheduled in Texas. A claim of actual innocence, bolstered by four experts. A prosecutor who responds that it’s “only opinion.” A court that rejects the habeas corpus petition on procedural grounds (only one per customer).
From Grits for Breakfast and Talkleft comes Larry Swearingen’s long walk. He’s convicted for the 1998 rape-murder of a Montgomery County, Texas, coed. Put aside your shock that the death penalty in Texas hasn’t deterred people from committing rapes, murders or rape-murders. The fact remains that executions are still considered a parlor game, enjoyed by true-blue Texans and subject only to the ridicule of outsiders like me, I’ve been told before that a New Yorker has no business criticizing Texas. Unfortunately, Texas remains a nominal part of the Union, so I can’t just ignore it.
I take no position on the validity of the science behind the four pathologists who are of the view that Swearingen was in jail at the time the crime was committed, thus precluding any possibility of guilt. From the Austin American-Statesman :
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 [on traffic warrants] when the 19-year-old’s body was left behind, the pathologists say.
In short, the state’s pathologist, who testified that the body had been in the woods for 25 days, which coincidentally happened to be the exact amount of time she had been missing, was scientifically wrong. Even so, prosecutors are unconvinced.
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.
Slightly short of compelling evidence perhaps, but evidence nonetheless. So here’s the question: Why wouldn’t the Texas Court of Criminal Appeals prefer to figure out whether this guy is innocent before executing him?
Thus far, only the Texas Court of Criminal Appeals has seen the opinions from the four forensic pathologists.
The state’s highest criminal court, however, did not rule or comment on the information. 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.
Can’t you just hear a judge muttering to herself, “rules are rules, ya know.” And it’s far more important to the integrity of the system that we adhere to the rules than execute an innocent man? I wouldn’t want to take a vote in Texas on the issue.
But perhaps even the bluest of true-blue execution enthusiasts can agree that it would be a pretty good idea to hear this evidence out, which may conclusively prove that this traffic-warrant scoundrel is not a raping murderer? Maybe, just maybe, there might be an iota of concern about the fact that if he didn’t do it, the raping murderer is still walking around Montgomery County.
Is the Republic of Texas really in that much of a rush to put Larry Swearingen to death that it can’t decide first if he’s innocent? Come on, Texans. Watch an old CSI episode next Tuesday. Someone else will be executed soon enough to make you happy.
Update: Swearingen’s execution has been stayed by the 5th Circuit Court of Appeals. Notably, it wasn’t stayed by the Texas Court of Criminal Appeals.
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Hey Yankee lawyer,
Let me begin by saying that I enjoy reading your blog. I’m not a Texan, just a neighbor from the even more nominal state of Oklahoma where a condemned killer was executed last Thursday evening. I happen to be a lawyer who supports the death penalty and I have no shock to put aside regarding whether or not the death penalty acts as a deterrent. That’s because I don’t support the death penalty for the sake of deterrence but for the sake of justice. I mean isn’t justice the whole point behind the “criminal justice” system?
Having said all of that, I do agree that the system should pause to examine and consider all exculpatory evidence that comes to light since the execution of the death sentence cannot be undone.
Oh, right, justice. Why didn’t Scott think of that? Thanks, Nunley. Good to see also that you favor considering exculpatory evidence before executing someone who may be innocent, rather than…you know…opposing that sort of thing.
Lee,
Why would Nunley oppose capital punishment? Once someone has been determined “guilty as sin”, why not execute him?
On that note, there is no undoing execution. Most cases can be judged “beyond a reasonable doubt” but for execution, there can be no doubt. I would go so far as to say that those willing to execute a defendant should be so sure of his guilt that they themselves will be executed if they err.
I’m a hard core fan of capital punishment but judging by the information that is publicly available, I would say that Swearingen’s case needs further examination before proceeding with execution.
Also, there is a difference between “deterrence” as in “MAD will act as a deterrence against nuclear war” and that in criminal justice. The death penalty is a great deterrence. No criminal who has ever been executed as gone on to be a repeat offender.
There are two types of deterrence, general and specific. Specific means that the individual won’t commit another crime, and general applies to society at large. The justification for the death penalty isn’t specific, since life without parole does the same trick.
I’m not sure that any conversation we have about this topic could be productive as you have described yourself as a hardcore fan of the state killing people, but I’ll take the bait nonetheless.
First, let’s start by you acknowledging that there are lots of reasons why one might oppose the death penalty and to flippantly say, “why not kill someone,” and to describe yourself as a “hardcore fan” of people dying is probably not a good way to discourse about such a serious topic. Here’s one reason. Anyone who is honest with themselves must acknowledge that in the course of our country’s use of the death penalty, we have executed innocent people. I feel that there are cases in which there is such a thing as proof beyond any doubt. That standard is not required in death penalty cases. So I’ll start with that as a moral reason why one might oppose the death penalty. There are also far more practical reasons, but your question asked for a reason Nunley might oppose capital punishment. There’s one. Here’s one back for you: why WOULD we allow our government to execute its own citizens as opposed to sentencing them to life without the possibility of parole?
Scott,
Thanks for the clarification on specific and general deterants. These are things that I often contemplate but had not quantified.
I disagree on life without parole being as effective as death. Willie Horton had life without parole but lived to rape and attempt murder again. Members of the “Texas Seven” that killed Aubrey Hawkins also had life without parole. Those are just a few examples and while we shouldn’t legislate by exception, the number of instances at least warrant consideration that life without parole is not good enough to deter these criminals.
Lee,
That would depend on how “productive” is defined.
Please forgive me for sounding flippant. I assure that capital punishment is a matter I take very seriously and am even hawkish on governments’ use of it. (I’m pretty hawkish of governments’ use of everything.) Your statement to Nunley seemed to berate him for supporting capital punishment despite proper judical review. It seemed to take for granted that there is no reason to support capital punishment.
I’ll acknowlege that there are reasons to oppose the death penalty. It costs more than a lifetime incarceration. It removes any possibility to reconcile with victims’ families. It is a direct reflection mankind’s inability to rehabilitate.
I am a supporter of government execution for many reasons:
One is that it is much more civil than lynch mobs. A death row inmate will recieve the most scruitiny of his crimes. In the case of Swearingen, it hasn’t and it should be. A lynch mob may well hang an innocent person. We cannot correct the mistakes of the past but we can take care not to make those mistakes in the future.
Another is that the execution of some of these criminals is the only justice that they and their victims families will ever know. Life sentences without the possibility of parole do not absolve them of their crimes. It can be argued that there is no absolution in these cases. That is why I ask, “Why not execute him?”
Because of the number of criminals that belong in that category, I describe myself as a “hardcore fan.”
The Texas seven were not serving life without parole. Life without parole was not an available punishment in Texas until 2005. Even now it is only available as an alternative in capital murder cases.
tiger,
I suppose I should have enumerated the Texas Seven:
One was serving a 30 year sentence;
Three were serving 50 year sentences;
The others were serving sentences of 99 years or more and eligible for parole sometime after they were dead.
Since Rikers won’t take them, they need the death penalty.
Allow me add some definition and thus clarify this issue. Life without parole is meant to be exactly what it says. Not the Texas version, or New York version or any other version. To the extent a state chooses to water down its application, then your issue is with the state and not the concept, and it provides no basis to claim that capital punishment is needed because a Lege fails to provide a proper alternative.
That said, party on Garth.
I can respect that reasoned analysis, although I disagree with it.
In California, where I practice, life without parole means what it says. Short of pardon or commutation, someone serving LWOP will never be released from prison.
Your lynch mob reason doesn’t make much sense because that is not what the death penalty is an alternative to.
Your second reason does, and it is the only one that I think I can really understand. The death penalty is about vengeance for the victim’s family and that is something that is real and that does not need to be apologized for by victims or their family members. This does not mean, however, that our government’s policy should be shaped by the hurt and anger of those people. The absolution of the defendant I’ll leave alone because it sounds like that is tending towards a religious argument. I am not a very religious person although it is unclear to me how any God, particularly one who has commanded that man should not kill man, would care one way or another with respect to absolution what punishment a criminal’s fellow man doled out and that if he did, he would probably prefer that mankind had followed his direction not to kill one another.
I don’t use the lynch mob reason to argue for or against the death penalty. You’d made reference to the state killing people so I mention it to show that the state killing people is preferrable to a lynch mob (as long as the state is a government of, by, and for the people that is).
I prefer not to bring God into an argument about the death penalty but, if you are referring to God which made the Ten Commandments, this is also the same God that had order the execution of entire tribes including the livestock. Also, it would be impossible to mention it without getting into the “kill vs murder” debate.
In my use of “absolution”, I am referring to that of man or “absolution instead of atonement”.
Making policy based on the hurt and anger of victims and/or their families is debatable too. However, there are many good reasons for the death penalty that do not necessarily relate to victims and their families.
You also leave out the possibility of escape or the laws regarding LWOP changing.
It isn’t that I think LWOP is bad or even possibly a viable alternative for the death penalty. It is the death penalty is justified.
As I was writing before the computer rebooted itself — alas; I was brilliant, and that so rarely happens — the DP issue is, at base, a religious one: either you believe that there is such thing as a confluence of bad act, bad actor, and confidence that you’ve got the right guy that society is justified in killing him all at once rather than bit by bit. . . or you don’t. (I’m in the former camp, and really don’t have a problem with, say, Eichmann or Ted Bundy or El Sayid Nosair getting a fair trial and then an execution — and I think Nosair is a pretty good example of the risks taken in not at least trying to fry a guy because the, err, complainant he offed was a political undesirable.)
The problem for at least some of us in this camp isn’t that, from time to time, the wrong guy gets killed — as though that’s somehow profoundly worse than the wrong guy, from time to time, getting locked up for the rest of his life. It’s that it seems that the wrong guy gets killed a whole lot, as at least some of the DNA testing has shown.
And, from my POV, that’s kind of a big deal. YMMV.