Reprieve for Larry Swearingen, whom four pathologists say is innocent

An execution-eve reprieve was granted Larry Swearingen by the 5th U.S. Circuit Court of Appeals in New Orleans on Monday [01/26/2009], giving his lawyers time to present evidence that he did not commit the 1998 Texas murder.

Swearingen faced lethal injection Tuesday in Texas for the death of Melissa Trotter. Yet four forensic pathologists agree that he could not have committed the murder, because he was in jail when it occurred.

Harris County Medical Examiner Dr. Joye Carter is one of the four.

In the words of the court:

At trial, Dr. Carter testified that Trotter’s body had been left in the forest for approximately twenty-five days, which was consistent with the State’s theory that Swearingen murdered Trotter on December 8, 1998, and left he body in the forest. In her affidavit, Dr. Carter does not address the correctness of her original testimony based on decomposition and fungal growth, but states that if she had been provided certain additional data, she would have testified that the findings of her autopsy “are consistent with a date of exposure in the Sam Houston National Forest within fourteen days of discovery, and incompatible with exposure for a longer period of time.”

Those results indicate that Swearingen was in jail on outstanding traffic warrants when the 19-year-old’s body was left in the forest south of Huntsville, Texas. Specifically, he was in jail when the body was discovered on Jan. 2, 1999, and had been in jail since Dec. 11, 1998. Even using Dr. Carter's maximum of 14 days, the body was placed two days after Swearingen was jailed.

Thus the court goes on to say, "... that but for the alleged constitutional error of the State sponsoring the false testimony of Dr. Carter, no reasonable juror could find guilt beyond a reasonable doubt." (The full decision is here [.pdf]).

Texas state courts had refused to hear the issue:

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.

Swearingen's attorneys now return to federal court to seek a new trial or release from prison.