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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

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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