Texas, the death penalty and science

Hard to know where the fault lies:  with Governor Perry who seems to like to execute people without seeming to inquire too much about the circumstances or with the anti-scientific cultural bias that seems to inhabit the state.  Both are at play with the pending execution of  Larry Swearingen for a murder he may not have committed.

Jordan Smith (a reporter for the Austin Chronicle) writes for the Nation

Just over a year ago, in January 2012, Texas Governor Rick Perry marked a gruesome milestone: with 239 executions under his belt, he had officially overseen half of all executions carried out in that state since the reinstatement of the death penalty. Since then, Texas has killed fourteen inmates, solidifying Perry’s position as the governor who has presided over the most executions in history. To date, 492 prisoners have been put to death since the state’s death chamber roared back to life in 1982. By the time this issue of The Nation hits newsstands, the number will likely be 493.

Amid so much state-sanctioned killing there is scant official acknowledgment that the state’s capital punishment system is fraught with problems. As the body count rises, nagging evidence points to the possibility that Texas has executed at least one innocent person, and may be poised to kill more. The arson-murder case of Cameron Todd Willingham, killed in 2004, is the best known, but there are many other cases that raise serious questions about the guilt of people on Texas’ death row.

As it moves down the roster of executions scheduled for this year, the state is perilously close to adding another name to its list of potential innocents: Larry Swearingen, whose case highlights a growing tension in Texas between science and the law. Add to that conflict the all-too-familiar problems of prosecutorial bias and tough-on-crime politics, and you’ve got a recipe for wrongful conviction that, when death is involved, can’t ever be remedied.

I’ve written twice about Cameron Todd Willingham, once in 2009 and again in 2010.  Most people who know about the Willingham case believe that this was a case where an man known to be innocent was executed.  According to Smith, it may well happen again.  Interestingly, both cases hinge on science.

In Swearingen’s case, the courts have demonstrated little tolerance for scientific questions that are not only central to his guilt or innocence, but that have implications for every single death investigation in the state. Until Texas courts— particularly the state’s highest criminal court, the Court of Criminal Appeals (CCA)—accept that understanding science is key to doing justice, the risk that innocent men and women will be locked up, or worse, is inevitable. And in the absence of such a eureka moment, Swearingen, whose latest execution date was February 27, will die despite serious unresolved questions about his guilt.

According to the story in the Texas Observer

When a dead body is discovered, investigators can work out the likely time of death in a number of ways. The first clue is the bugs. It can take no time at all for blowflies and house flies to home in, searching for open wounds and orifices in which to lay their eggs. Between 12 and 24 hours later, when the body is cold to the core, those eggs hatch and the larvae feed on the flesh. The insects offer important clues for forensic pathologists, but it’s also important that they note what the outside temperature was in the days and weeks preceding the body’s discovery. That’s because the higher the temperature, the faster the insects will develop and once entomologists have identified the species, they can determine when they hatched and therefore how long that body has been there.

By day four, bacteria have started to break down the tissues and cells, releasing fluids into the body cavities that produce gases and cause the body to bloat. In summer, a human cadaver in an exposed location can be reduced to bones in just nine days—particularly if there are wild animals around.

Decomposition science is morbid but it can help solve heinous crimes. And it could be the key to figuring out if a man sitting on Texas’ death row was the killer in the gruesome 1998 murder of 19-year-old Melissa Trotter.

In February, nine forensic experts took the stand at an evidentiary hearing for convicted murderer Larry Swearingen to explain that precisely because of this decomposition science, they were sure that Trotter hadn’t been dead very long when her body was discovered— as little as a day; as long as 14. Either way, Swearingen couldn’t have killed her, they said, because at the time of her death he was in jail.

Smith concludes his piece in the Nation

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.”

Of course, Texas’ efficient death machinery doesn’t necessarily discriminate between the certainly guilty and the probably or even possibly so. Finality of conviction has long been the force driving justice in Texas, especially as practiced from the bench of the CCA. But DNA has already exonerated forty-seven inmates in Texas—one of them on death row—and inspired efforts to ensure better certainty in convictions, in the state and beyond. Whether the court will accept and apply such science in Swearingen’s case—or in the cases of any of the twelve other inmates scheduled for execution in 2013—remains an open question.

Larry Swearingen’s execution has been stayed until evidence can be reexamined.  Let’s hope this happens before the courts and the state get impatient.  Let’s hope the science is accepted before he is put to death, not after as with Willingham.

Larry Swearingen

Larry Swearingen

Photograph Alex Hannaford