http://www.chron.com/disp/story.mpl/chronicle/6243255.html

The article says that until recently, the Texas A.G.'s position was that even an innocent man should be executed so long as he got a fair trial.

The AG claims this is no longer Texas' position, but the reporter notes that the AG opposes any delays to Larry Swearingen's execution, even tho, she claims, there is compelling evidence he was in jail at the time the victim was murdered.

I don't know anything about the Swearingen case. It would seem to be an easy matter for his first def. atty. to have brought up in court that he was in jail when the murder took place. Indeed, it seems very unlikely that a prosecutor trying a capital murder case, while preparing the case for trial, would be so incompetent as to not to notice the def. was in jail at the time of the offense.

But if there is a real issue of innocence here, it seems obvious to me it needs to be checked out.

And in any case, even in the best light, it is still very upsetting that Texas' official position at any time was that a "fair trial" was so sacrosanct that even conclusive evidence of innocence should not stop an execution. A trial is simply a means to an end, and not an end in itself. Its purpose is to achieve justice, and if it fails, then it needs to be corrected. That seems obvious to me. The former position of the AG's Office undermines public confidence in the Texas criminal justice system.

[This message was edited by Terry Breen on 02-03-09 at .]

Terry, there is conflicting testimony as to whether Swearingen was in jail at the time of the murder. Based on autopsy findings and the evidence of insects developing in the decomposing body, the initial report was that she was dead prior to his being jailed on other charges. Post-conviction, the medical examiner changed her mind. However, there was also compelling physical evidence. Namely, Melissa Trotter was strangled with a pair of cut pantyhose. The matching piece of cut pantyhose was found in Swearingen's possession (his home, as I recall). Also, the defendant quite ineptly wrote a letter in Spanish exculpating himself and signed it as from another person.

Now experts are lining up to say the blow fly evidence shows he was in jail. But all is not as clear as it might seem.

"Conflicting testimoney" seems to equal reasonable doubt, at the very least.

Nope. It doesn't.

[This message was edited by David Newell on 02-04-09 at .]

Dan,

I guess the reporter forgot to include the evidence you speak of in your post.

But the main point of the article, and the thing that upsets me, is that at least one time Texas' position before the SC was that its legal to execute an innocent man, so long as he got a "fair trial." That is a shocking position to take.

R_Smith, the whole point of a trial is to resolve conflicting testimony. The jury gets to decide if it believes Sister Agnes the eyewitness or the defendant's best friend Leroy the Louse. Pretty much ANY trial with experts is going to have the other side bringing in an expert who will testify to the exact opposite. Not all conflicting testimony is created equal.

quote:

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Originally posted by R_Smith:
"Conflicting testimoney" seems to equal reasonable doubt, at the very least.

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Man, if that were the case, we would never get a conviction. It is the jury's job to resolve those conflicts, either by conviction or by determining that reasonable doubt exists as to the defendant's guilt. [DOH, I see Andrea beat me to the punch.]

I'm not taking sides on this discussion, but, Terry, doesn't the BRD standard mean that it is possible to (legally) execute the innocent? The standard for a capital case isn't beyond any doubt.

Guess I missed the Evidence class that gave the formula Conflicting = Credible.

quote:

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Originally posted by R_Smith:
"Conflicting testimony" [sic] seems to equal reasonable doubt, at the very least.

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Wow.

p.s. - Mr. "Smith," please contact me if you are unable to post further responses on this forum.

[This message was edited by Shannon Edmonds on 02-04-09 at .]

thank you im very concerned tax payer that lives in Texas. please i mean no disrespect

[This message was edited by tom3 on 02-04-09 at .]

Looks like this thread has run its course, but I feel compelled to comment on this:

quote:

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Originally posted by Terry Breen:
But the main point of the article, and the thing that upsets me, is that at least one time Texas' position before the SC was that its legal to execute an innocent man, so long as he got a "fair trial." That is a shocking position to take.

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I think the position, properly stated, is that it is legal to execute a man CLAIMING to be innocent, as long as the trial was constitutionally sound. It is easy to over-simplify, but as a writ lawyer, I can see that this position resonates back to the days when actual innocence claims were not congizable on a writ without a constitutional violation to go along with it.And of course, logistically speaking, if someone is making that claim to the USSC on behalf of the AG, it is not because the petitioner is an "innocent" man that Texas is looking to execute: it's because he's raised a CLAIM of innocence to get a stay. Big difference. Do you really think Texas would claim the right to execute a man who's proven his innocence? Really?

Terry:

I notice that the argument quoted was the Herrera case: the reason that case was a "landmark" was because that was the first time the Supreme Court ever held that punishing an innocent person was a violation of the Constitution. You'll note that the argument was never "It's right to execute an innocent person," only that "It doesn't violate the Constitution to do so." And of course, if you look at the Constitution, it never specifically says anything about not punishing innocent people, it only requires that due process be afforded.

I doubt it was *ever* the position of the AG that it was good to execute an innocent person. I think the position was based on the idea that merely claiming to be innocent was not good enough to entitle you to the sort of federal process involved in allegations of Constitutional violations. And while the Court did finally say that actual innocence could be cognizable on federal habeas, they have established a much higher burden for seeking relief based on actual innocence than is required for the conviction itself.

The AG's argument, I think, was a technical claim, not a policy statement. For example, I could tell you that no law prevents me from calling another person a foul name, even though I may agree with you that it is wrong for me to do it. If the Supreme Court were to ask me, "Doesn't the Constitution prohibit you from calling people bad names?" I'd say "No, it does not." Not because I think calling people bad names is OK, but because I don't know of any Constitutional provision that prohibits it.

While that is a trivial example, the principle is the same: we may agree on what the "right" thing would be, without agreeing on whether the law *requires* the right thing to be done.

The bottom line is no prosecutor has ever said that an innocent person should be executed. I think any prosecutor convinced of innocence would appeal to the governor for clemency even if no legal mechanism existed for the person to get relief. The problem is that prosecutors dont want to see convictions obtained after fair trials getting overturned just because the defendant refuses to give up his claim of innocence. Any defendant who gets convicted will be able to find somebody to provide "conflicting evidence," R_Smith, but the real actual innocence claims are few and far between. Most news stories about these claims tend to take the "innocence" evidence at face value, unlike the trial evidence which was subjected to cross-examination and judged by a jury. Innocent people getting convicted make for much more interesting stories than guilty people not wanting to be punished for their crimes.

I'm not sure why we as prosecutors have to constantly remind each other not to believe what anti death penalty reporters put in newspapers. I have recently reviewed the entire record in Swearingen and the forensic reports provided by the defense and some recently developed by our office. I even participated in a surprisingly pleasant conference call with Barry Sheck.

Let me just say this. Despite many attempts by our office to provide the Houston Chronicle with ample information about Swearingen's case that could lead to a balanced and fair examination of Swearingen's "innocence", they have yet to print a word of it.

And, when the date comes that Mr. Swearingen sees the justice a jury said he deserved, I will not lose a bit of sleep.

I see that name and think of the Deadwood bar owner. Am I all alone on that?

No you are not alone...that was my first mental picture also, and then it's difficult to not hear him (Swearingen of Deadwood fame) shouting cuss words at any and everyone.

Dan Bradley and Phil Grant,

Thanks for filling in the details left out by the columnist, which, of course, utterly undermines her claims.

A bud of mine, a former Texas prosecutor, now a special agent in the State Dept's Diplomatic Security Service, e-mailed me the column, and asked, What's going on back in Texas? So I posted it. Now we know "The Rest of the Story."