Fifth circuit stays planned execution of Swearingen

On Thursday, the Houston Chronicle ran an editorial on Thursday about the impending execution of Larry Ray Swearingen, convicted of a rape-murder in 1998. The evidence tying him to the murder of a coed was circumstantial. Swearingen, a convicted rapist, had been seen near the location on the day the victim disappeared, and a sock in his trailer was matched to a fiber found on the body.

But there is growing evidence that he was not the murderer. Notably, four pathologists have since come forward after reviewing the evidence and have said they believed the victim died much later than first reported at trial. In fact, they believe the victim was killed at a time when Swearingen was in state custody on traffic warrants.

What is even more remarkable is that a pubic hair taken from the victim's rape kit and the scrapings from under her fingernails prove that Swearingen was not the murderer.

The question is whether these new opinions, and the other scientific evidence, constitute new evidence in the legal sense, enough to get Swearingen a new trial. On that, the state has contradicted itself:

The Texas Court of Criminal Appeals correctly stayed Swearingen’s execution last year on the basis of the new evidence. It inexplicably later denied his appeal for a new trial without addressing the seeming impossibility of his involvement in the woman’s killing.

...Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told Texas Monthly that "no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime."

The Innocence Project of Florida joins the Houston Chronicle and others in asking Governor Perry to stay Swearingen's execution so that the most probative evidence in the case can be thoroughly DNA tested. The worst that could happen is that Swearingen is shown to be the murderer beyond a reasonable doubt – a doubt which has just now meteorically risen. On the other hand, Texas is only four days away from executing what many people reasonably believe is an innocent man.

Update: Today the Fifth circuit in Texas stayed Swearingen's execution. "The federal appeals court gave Swearingen permission to bring another appeal — focused on the pathologists’ opinions — to a U.S. district court." Article here.