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No Second Chances: What to Do After a Botched Execution

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Ohio tried and failed to execute Alva Campbell. The state shouldn't get a second chance.
The pathos and problems of America's death penalty were vividly on display yesterday when Ohio tried and failed to execute Alva Campbell. Immediately after its failure Gov. John Kasich set June 5, 2019, as a new execution date.
This plan for a second execution reveals a glaring inadequacy in the legal standards governing botched executions in the United States.
Campbell was tried and sentenced to die for murdering 18-year-old Charles Dials during a carjacking in 1997. After Campbell exhausted his legal appeals, he was denied clemency by the state parole board and the governor.
By the time the state got around to executing Campbell, he was far from the dangerous criminal of 20 years ago. As is the case with many of America's death-row inmates, the passage of time had inflicted its own punishments.
The inmate Ohio strapped onto the gurney was a 69-year-old man afflicted with serious ailm…

Texas: Supreme Court rejects Larry Swearingen's plea for DNA testing

Larry Swearingen
Larry Swearingen
Supreme Court rejects Texas death row inmate’s plea for DNA testing in murder case

WASHINGTON – The Supreme Court will not allow additional DNA testing of evidence a death row inmate in Texas says could show he didn’t kill a suburban Houston college student.

The justices on Monday rejected an appeal from Larry Swearingen, who was convicted of abducting, raping and killing 19-year-old Melissa Trotter in 1998.

Swearingen has sought to test fingernail scrapings from Trotter, items of her clothing and cigarette butts found near her body. 

The trial court in his case has twice ordered the testing, but was reversed by the state Court of Criminal Appeals on both occasions.

Swearingen was sentenced to death for the murder July 11, 2000, and the CCA first affirmed the decision March 26, 2003.

His first execution date was set for Jan. 24, 2007, then stayed by the CCA for the trial court to resolve fact issues. 

A second execution date was set for Jan. 27, 2009, but the CCA again stayed the execution for further review.

A third execution was stayed July 28, 2011, and the most recent order for Feb. 27, 2013, was struck by Case to allow for more DNA testing.

Appellate attorney James Rytting has argued there could be evidence to support Swearingen’s claim that he was not the last person with Trotter before she was brutally murdered.

Rytting said biological material on various clothing items have been identified for testing, supported with a signed affidavit from DNA expert Huma Nasir.

Rytting wanted testing on hair evidence to determine whether a full DNA profile can be identified from various items of clothing — Trotter’s underwear, shirt, sweater and blue jeans.

“We have identified some very important facts that are clearly mistaken that change the way this DNA testing must be looked at,” Rytting said. “The law has changed, the facts have changed, and now we have additional evidence we believe Mr. Swearingen was not the last person with the victim — that she was with someone else. They have the wrong person in jail.”

Swearingen has always said he did not kill Trotter. His claim of innocence is supported by the opinion of a number of influential Texas pathologists—together responsible for thousands of death investigations every year—who say that scientific evidence proves that Trotter had not been dead very long when her body was found. If that’s the case, then Swearingen could not have killed her, since he would have been in jail when she died.

The central question— low long Trotter had been dead—hinges on histology samples collected during her autopsy and saved in a paraffin block. Veteran pathologists who have reviewed the evidence agree that the samples of Trotter’s lung, heart and vascular tissues reveal intact structures that would have broken down had her body really been left in the forest for nearly a month.

Even the Houston medical examiner who conducted the autopsy, Dr. Joye Carter, has recanted her trial testimony, admitting in 2007 that the ease with which she was able to weigh and dissect Trotter’s organs made the state’s timeline impossible.

Had Melissa Trotter been killed today, it is hard to imagine that Swearingen would be facing execution without the alleged murder weapon or other evidence first being subjected to DNA testing.

The use of science, and DNA in particular, in criminal cases has advanced greatly since 1999. “This is evidence that would routinely be tested if the case was investigated today, and any one of these pieces of evidence could produce a DNA profile that could lead to another perpetrator,” says Bryce Benjet, who is working with the Innocence Project on Swearingen’s behalf. “Regardless of where you stand on the death penalty, I think we can all agree that we should be absolutely certain of guilt before putting someone to death.”

Source: mrt.com, October 3, 2016, Jan. 4, 2015; The Nation, Feb. 2013

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