In his 12 years on death row, Larry Swearingen's execution date has been set 3
times. 3 times he has known when he would be strapped to a stretcher and put
down with drugs: sodium thiobarbital to anaesthetise him, pancuronium bromide
to paralyse his muscles and potassium chloride to stop his heart.
In January 2009, he had written his goodbyes and was on his way to the chamber
when the stay of execution came through. ''The way I had to look at it was,
'I'm just gonna lay down and go to sleep,''' he says. ''I wasn't gonna grovel.
I wasn't gonna sit there and cry. I can't be remorseful for a crime that I
Swearingen lives at the Allan B. Polunsky unit, an hour or so north of Houston.
Along with another 292 men and 10 women awaiting execution for capital crimes
committed in Texas, he is kept in solitary confinement. His cell is not quite
four metres long and a little more than two metres wide, with a slit above head
height, more a vent than a window. He has a toilet, a typewriter, a radio and a
hotplate. His daily hour of recreation is spent alone, although he can talk and
play chess, through gaps between the cells. Most of his companions are here
because they have committed horrendous acts of violence.
After the security check, more thorough than an airport pat-down, a public
relations officer escorts me to the visiting area. A hand-painted notice in the
antechamber reads ''Do The Right Thing''.
Swearingen and I have a booth at the near end, equipped with old-fashioned
telephone handsets. He is strikingly calm, even as he complains about the
injustice of being locked up for a murder that forensic science shows he cannot
have committed. ''It's not easy being here,'' he says. ''There are men who are
hanging themselves, men who are cutting themselves, men sitting in their own
faeces, men slowly losing their minds. If people think it's easy they are sadly
Swearingen is a born-again Christian. He sometimes lapses into platitudes,
about forgiveness and cherishing the simple things.
I wonder whether this is an act, or a result of his prolonged isolation, with
only his thoughts and prayers for company.
To supporters of the death penalty, the possibility of a fatal miscarriage of
justice is negligible. The conservative US Supreme Court justice, Antonin
Scalia, has asserted there has not been ''a single case - not one - in which it
is clear that a person was executed for a crime that he did not commit''.
In Texas, doubts have been raised by the case of Cameron Todd Willingham,
executed in 2004 after being found guilty of starting the fire that killed his
3 young children - a conviction secured with faulty forensic science,
unreliable witness reports, the word of a jailhouse informant and testimony
from a psychiatrist who pronounced Willingham a ''sociopath'' without having
met him. Several renowned arson investigators have since concluded that the
fire almost certainly started accidentally. <>P> Last year, Troy Davis was
executed in Georgia, after a federal court upheld his conviction for shooting a
police officer, Mark McPhail, even though no forensic evidence was presented at
his trial and several of the witnesses who testified against him changed their
stories. The case provoked an international outcry but it is no more possible
to prove Davis's innocence than it is to be certain of his guilt.
Swearingen's case is different, in that forensic science provides him with an
alibi. He cannot have raped and murdered his supposed victim, because he was
already in prison when she was killed. If his last appeals fail and he is
executed, abolitionists will have the unequivocal miscarriage of justice they
have been waiting for.
Melissa Trotter disappeared on December 8, 1998. Swearingen was one of the last
people to see her alive, at Montgomery College. Three days later police picked
him up on outstanding arrest warrants for minor offences, threw him in jail and
began to build a case against him. In a missing person's report, distributed a
week later, he was named as the only suspect.
Ms Trotter's body was discovered on January 2, 1999, in the Sam Houston
National Forest, by hunters looking for a lost gun. She was wearing jeans but
her torso was naked. She had been strangled with one leg of a pair of tights. A
search team, with cadaver dogs, had passed within 20 metres of the spot a
fortnight earlier and found nothing.
Although there were signs of decomposition on Ms Trotter's head, her corpse was
in remarkably good condition. At the autopsy, with the district attorney and
two sheriffs in the room, the Harris County Chief Medical Examiner, Dr Joye
Carter, estimated that she had been dead for about 25 days, meaning she had
been killed the day she went missing.
When Carter repeated this at the trial, the defence team let it pass
unchallenged. Jurors heard that Swearingen had a history of violence towards
women, that he had repeatedly lied to police, that he had fabricated a letter,
from jail, full of details only the killer could know, in an attempt to confuse
investigators. They heard that hairs forcibly removed from Ms Trotter's head
were recovered from his truck and that the other leg of the pair of tights used
to kill her was found in his house.
They were not told that the tights appeared during a fourth police visit to the
property, after three previous searches had turned up no compelling evidence.
Carter did not disclose that she had taken tissue samples from Trotter's
internal organs, which were intact. The DNA under her fingernails, belonging to
somebody other than Swearingen, was dismissed as a contaminant. The jury took
less than two hours to sentence Swearingen to death.
The Chief Medical Examiner for Galveston County, Dr Stephen Pustilnik, has a
Latin inscription taped over the door to his autopsy room: ''Taceat colloquia,
effugiat risus, hic locus est ubi mors gaudet succurrere vitae'' (Let speaking
cease, let laughter flee, at this place, death delights to comfort the living).
Eleven years as a forensic pathologist in Texas have made him cynical about
pressure from law enforcement to provide convenient autopsy results. ''I'm the
sort of person that loves to tell police and DAs that they're wrong,'' he says.
''For many days, where she was found, it was 20 degrees Celsius. If you're at
that temperature for three days, you're green, bloated and stinky. Inside the
body where the heat is held, the organs will decompose at a faster rate than
the skin surface will. Her internal organs look beautiful.'' Ms Trotter's body
weighed 47.7 kilograms at the morgue. Alive, she had weighed less than 2
Judge Fred Edwards of the Ninth District Court of Montgomery County is
conducting an evidentiary hearing, to determine whether Swearingen merits a
retrial. Edwards, the original trial judge, has denied his appeal twice
already. He is up for re-election later this year and boasts in his campaign
flyers that he has never had a capital case overturned.
Last week, several of the most respected forensic pathologists in Texas
testified for the defence. Dr Joye Carter has been called by the prosecution,
even though she signed an affidavit in 2007 revising the estimated time of
death to two weeks before Trotter's body was found, when confronted with
evidence she collected herself at autopsy.
The problem for Swearingen is that most of their conclusions have been heard
and dismissed before. After a previous appeal, the findings of fact and law,
signed by the judge but written by the district attorney, concluded that
''inconsistencies'' between the entomology (estimating time of death by
studying insect larvae) and histology (a more accurate method, using tissue
samples) meant that none of the science could be relied upon.
''The sum total of their case was that scientists disagree and the jury would
have known by their own plain common sense that he was guilty,'' says the
Deputy Medical Examiner of Tarrant County, Lloyd White, whose microscopic
examination of tissue from the victim's heart and lungs concluded she had been
dead for no more than three days. ''I can't believe the Texas
attorney-general's office would put that in a document. A person walks in and
the jury knows he's guilty as hell, regardless of the evidence.''
During the appeals process, the burden of proof shifts to the defence. To win a
retrial, Swearingen's lawyer, James Rytting, must show that no reasonable jury
would convict, based on clear and convincing evidence of his client's
innocence. ''That is a system that is designed to fail,'' he says. ''It's also
designed to look as if it works because it supposedly gives you all these
chances but you do not have a chance in hell when you get down to the standards
that you have to meet.''
Whatever Edwards rules, the Texas Court of Criminal Appeals will have the final
say. The court, composed of 9 elected judges, has ordered only 3 retrials of
capital cases in the past decade - although it has commuted many sentences to
life without parole. The presiding judge, Sharon Keller, is best known outside
Texas for denying a 20-minute extension to a defence lawyer whose computer
malfunctioned as he filed an appeal. His client was executed that night.
Anthony Graves knows how hard it can be to have a wrongful conviction
overturned. He spent 18 years in prison, after being found guilty of murdering
a grandmother, her daughter and four of her grandchildren. His execution date
was set twice but he never stopped protesting his innocence. ''When you lose
hope, you lose your mind,'' he says, ''because the reality sinks in that you're
just gonna be here like an animal until you're murdered.''
The Texas Court of Criminal Appeals repeatedly upheld his conviction but after
a federal court granted a retrial, new prosecutors admitted there was no
evidence linking him to the crime and set him free. Graves has been out for 2
years. He is trying to build a relationship with his three sons, who are now
grown men. He cries when he thinks about calling his mother, the day he was
released, but he has a broad grin and a determinedly upbeat manner. ''I don't
have time for being angry and bitter,'' he says.
His case illustrates how easily an innocent man can become trapped in a system
that provides a political incentive for prosecutors to seek and judges to
uphold death sentences. His conviction was based almost entirely on the word of
the actual killer, Robert Carter, propped up by the lies of jailhouse
informants and forensic guesswork, presented as fact, but because his original
defence and first appeal were poorly handled, his appellate lawyers were
severely constrained in the evidence that they could present.
Robert Carter retracted his testimony to whoever would listen - his last words
before he was executed were: ''It was me and me alone. Anthony Graves had
nothing to do with it. I lied on him in court.'' But the district attorney
successfully fought to have this ruled inadmissible. Only a prosecutorial slip,
admitting that Carter had changed his story in a television news story about
the case, saved Graves from being sent to his death.
''Innocent until proven guilty are words written on a piece of paper,'' Graves
says. ''That's not how our system functions. A prosecutor can attempt murder on
a man's life and get away with it.''
Lloyd White offers an even blunter assessment. ''Constitutionally, you're
supposed to be innocent until proven guilty. In Texas, it's the other way
around. If you're charged … and you're sitting there as an accused person,
you're guilty. If the defence isn't all that sharp, you haven't got a chance.''
Indigent defendants in Texas generally get a court-appointed lawyer for their
trial and initial appeal. An investigation found that of 131 people executed
under the former governor George W. Bush, 43 were represented by attorneys who
had been disbarred or suspended for unprofessional conduct. Texas has since
passed the Fair Defence Act - in response to the notorious case of a lawyer who
went to sleep at his client's trial - but defence teams still often lack the
experience and resources they need.
Only certain types of murder qualify as capital crimes: when the victim is a
child or a police officer, for instance, or when the killing is combined with
another felony, such as rape or armed robbery. Hundreds of people are on death
row for stick-up robberies gone wrong - the crimes of poverty, addiction or
desperation - one more reason that capital punishment disproportionately
affects the poor. African-American and Hispanic defendants are also much more
likely to receive a death sentence, particularly if their victim is white.
Since the turn of the millennium, more than 50 men have been freed from death
row after having their convictions overturned. There are signs this steady drip
of exonerations is beginning to erode faith in the death penalty. Illinois
abolished capital punishment last year. The Governor of Oregon, John Kitzhaber,
halted a pending execution and declared that no more would occur during his
tenure. Only 8 people were sentenced to death last year in Texas, compared with
48 in 1999.
In the most recent Gallup poll about attitudes to the death penalty, 61 % of
respondents said they support capital punishment. When offered the alternative
of sentencing criminals to life without parole, in a CNN survey, there was a
more even split, 50 % in favour of incarceration, 48 % for the death penalty.
Graves argues that the death penalty, with its drawn-out appeals process,
constitutes ''cruel and unusual punishment'', and thus violates the Eighth
Amendment to the US constitution. ''From the seats that I sat in for 18 years,
seeing men going crazy, losing their minds, because they're sitting in a cell
with no windows, no television, no telephone, waiting to be executed,'' he
says. ''That's torture. I'd rather you put your hands on me, because those
wounds will heal.''
Under the current Supreme Court, among the most conservative ever, a national
moratorium remains a remote prospect. ''I'm not an abolitionist, I'm a realist.
And the reality is that we make mistakes,'' Graves says. ''And the cost is
gonna be too high, because it's gonna be a life.''
Swearingen is optimistic that he will be granted a reversal. But he also knows
that there is a chance he will be executed and become a martyr to a cause that
is not of his choosing.
''I hope it saves people's lives,'' he says. ''The more and more people that
are released from prison, over DNA, people are starting to look at it now -
would you want to sit on a jury and sentence a person to death, not knowing
what evidence is being kept from you?''
(source: Great Lakes Advocate)