2017-11-03 13:06:22 UTC
Lawyers agree to DNA testing in Swearingen's death row case
After years of courtroom wrangling, lawyers from both sides are finally
agreeing to move forward with DNA testing in the 1998 rape and murder of
Montgomery College student Melissa Trotter.
The agreement, expected to be finalized in court papers in the coming weeks,
comes just days after a judge called off the pending execution of death row
inmate Larry Swearingen, who was convicted in the slaying nearly 2 decades ago
and has since repeatedly professed his innocence.
"They're doing the right thing," defense attorney James Rytting said Sunday,
pointing to another death row inmate's alleged plan to confess to the crime as
evidence of the need for testing.
A lab would likely evaluate the rape kit, the ligature used to strangle
Trotter, finger nail scrapings and hair.
"We're still working out the details, but I'm excited that Mr. Rytting has
finally agreed to allow us to test this DNA," Montgomery County District
Attorney Brett Ligon said Sunday. "I'm glad to be moving forward on this
Years-long legal battles over DNA testing have become a hallmark of
Swearingen's case, which even sparked changes to state laws regarding
post-conviction DNA testing in 2015. Both sides have pushed for DNA testing at
times, but always using different legal mechanisms and never in agreement.
At least twice, a trial court judge sided with Swearingen's testing requests -
but each time the state slapped down the lower court's move, ruling that new
DNA wouldn't be enough to counter the "mountain of evidence" pointing to
In 2013, prosecutors filed a failed bid for DNA testing, but the defense
Now, though, an alleged death row confession plot that could have seen another
convicted killer confess to Trotter's death has sparked new interest in
"Both sides now recognize that there's a need to test the evidence," Rytting
Swearingen and Trotter were seen in the college's library together on Dec. 8,
1998 - the day of the teen's disappearance. Afterward, a biology teacher
spotted Trotter leaving the school with a man.
Hair and fiber evidence later showed that she'd been in Swearingen's car and
home the day she vanished.
The killer's wife testified that she came home that evening to find the place
in disarray - and in the middle of it all were Trotter's lighter and
cigarettes. Swearingen later filed a false burglary report, claiming his home
had been broken into while he was out of town.
That afternoon, Swearingen placed a call routed through a cell tower near FM
1097 in Willis - a spot he would have passed while heading from his house to
the Sam Houston National Forest where Trotter's decomposing body was found 25
Swearingen was convicted and sentenced to death in 2000, but on Friday a judge
approved calling off his Nov. 16 death date - the fifth one scheduled in the
case - as a result of a filing snafu.
Back in August,, the Montgomery County District Clerk sent notice of the
November execution scheduling to the Office of the Attorney General's writ
office instead of to the Office of Capital and Forensic Writs. Because the law
requires notice to the OCFW - which defends death row convicts - to be mailed
within 2 days of the setting of an execution, the date had to be called off. It
has not been rescheduled.
Swearingen's attorneys first pointed out the problem in court papers on
Wednesday, filing a motion to withdraw the execution in light of the mistake.
But aside from the clerical issues, Rytting also requested calling off the
execution in order "to investigate newly discovered information suggesting that
Anthony Shore - a convicted serial killer - has confessed to the murder of
Melissa Trotter," according to court papers.
"Mr. Swearingen will seek to depose Mr. Shore in order to preserve his
testimony regarding the nature of any confessions he made, to obtain a DNA
sample, and to obtain all other relevant information including documents,
recordings and any other evidence concerning Mr. Shore's connection to Ms.
Word of the alleged confession scheme emerged on the eve of Shore's scheduled
execution on Oct. 18.
Hours before he was scheduled to die, Shore won a 90-day stay after prosecutors
said the 4-time killer admitted to an abandoned plan to admit to Swearingen's
Officials first found out about the possibility of a last-minute confession
attempt back in July, when a death row cell search uncovered materials relating
to Trotter's killing - including a hand-drawn map marking the supposed location
of more evidence - stashed in Shore's cell.
The day before his scheduled execution, Shore told investigators he'd only
considered confessing to get his friend off, and not because he'd actually
committed the additional crime. The multiple murderer also agreed to answer
questions about other cases, and a judge greenlit pushing back his first
scheduled execution date. He is now slated to die by lethal injection on Jan.
(soruce: Houston Chronicle)
Executions under Greg Abbott, Jan. 21, 2015-present----26
Executions in Texas: Dec. 7, 1982----present-----544
Abbott#--------scheduled execution date-----name------------Tx. #
27---------Nov. 8------------------Ruben Cardenas---------545
28---------Dec. 14-----------------Juan Castillo----------546
29---------Jan. 30-----------------William Rayford--------547
30----------Feb. 1-----------------John Battaglia---------548
(sources: TDCJ & Rick Halperin)
Prosecutor asks for current medical standards in death penalty evaluations
The top prosecutor in Harris County is proposing a new way for Texas to
determine if a death-sentenced inmate is intellectually disabled and therefore
ineligible for execution: use the current clinical books.
When determining whether someone with a death sentence has a mental disability,
Texas has long used outdated standards partially created by elected judges. Now
that those standards have been ruled unconstitutional, one district attorney
wants the state to use a markedly different measuring stick: current medical
Harris County District Attorney Kim Ogg sent a brief to the Texas Court of
Criminal Appeals Wednesday afternoon in the case of Bobby Moore, a man
convicted in the 1980 shooting death of a Houston supermarket clerk. Ogg now
says Moore is intellectually disabled, but the questions surrounding the
prisoner's mental capacity led to a March Supreme Court ruling that invalidated
Texas' method of determining intellectual disability for death row inmates.
Justice Ruth Bader Ginsburg wrote in the court's opinion that the state's test
created an "unacceptable risk" of executing intellectually disabled people, a
practice deemed unconstitutional.
But while the ruling tossed out Texas' old way of determining the disability,
it didn't create a new one. Instead, cases of death-sentenced inmates who were
deemed competent for execution under the old test were suddenly ripe for new
litigation, and at least 2 men who had been on death row for decades had their
sentences changed to life in prison - all while awaiting a final ruling on
Moore's intellectual capacity.
Ogg asked for Moore's sentence to be reduced to life in prison, and her brief
also asked Texas to create a new way of determining intellectual disability -
one that sticks to the medical books.
'"Unacceptable risk' necessitates that the States should strictly adhere to the
definitions of intellectual disability as contained within the most current
versions of the clinical manuals," said the brief.
She implored Texas to conform to the standards set by the American Psychiatric
Association, similar to how Louisiana and Mississippi determine intellectual
disability. If the Texas court accepts Ogg's suggestion, death penalty experts
say it will put Texas in line with the Supreme Court's ruling and will put
fewer Texas death penalty cases in front of the high court in the future.
"You don't have the same systemic problems in states that are using medical
definitions," said Robert Dunham, executive director of the Death Penalty
Information Center, a national organization critical of current death penalty
practices. "We see persistent problems in states [that] have adopted standards
that are clearly inconsistent with the contemporary medical standards or have
created procedures that make it virtually impossible to prove intellectual
Dunham said in general that states have sought to conform to previous Supreme
Court rulings, but others -0 Texas, Georgia, Missouri, Arkansas and Florida -
have created hurdles for proving the disability. He said the best way for Texas
to avoid future problems is to use existing medical standards.
The Texas Attorney General's Office, which represents the state in federal
death penalty appeals, and several district attorneys in counties where
intellectual disability cases are in play did not return phone calls Thursday.
In 2002, the Supreme Court ruled that executing people with intellectual
disabilities is unconstitutional under the Eighth Amendment, but it left it up
to the states to determine how to qualify the condition. The legal definition
of intellectual disability doesn't have to fully match a medical definition,
but it does have to be informed by the current medical frameworks, according to
The Texas Court of Criminal Appeals created its own method 2 years later. Death
penalty critic Judge Elsa Alcala wrote in a 2015 opinion that the test was only
meant to be a temporary solution "in the absence of any legislative guidance."
The method found inmates facing execution intellectually disabled if their IQ
was 70 or below. If an IQ was above 70 but close enough to be within a margin
of error (the state put Moore at 74), the court would look at how well the
person functioned in daily life by referencing 1992 medical guidelines and a
controversial set of questions called the "Briseno factors."
The factors included questioning if a neighbor or family member would consider
the person disabled, the person's ability to lie and the planning involved in
the murder. In its March ruling, the U.S. Supreme Court said the Briseno
factors strayed too far from medical-based frameworks.
"The [Court of Criminal Appeals] overemphasized Moore's perceived adaptive
strengths - living on the streets, mowing lawns, and playing pool for money -
when the medical community focuses the adaptive-functioning inquiry on adaptive
deficits,??? Ginsburg wrote.
Chief Justice John Roberts agreed with the incorrect usage of the Briseno
factors but wrote in a dissenting opinion that the court's majority tossed the
Texas court's ruling without considering societal standards.
"The Court instead crafts a constitutional holding based solely on what it
deems to be medical consensus about intellectual disability," Roberts wrote.
"But clinicians, not judges, should determine clinical standards; and judges,
not clinicians, should determine the content of the Eighth Amendment."
It's unknown when the Texas court will make a decision in Moore's sentence or a
new way to determine intellectual disability. In the meantime, the death
penalty's intersection with intellectual disability is up in the air.
(source: The Texas Tribune)
FL Supreme Court Denies Stay of Wednesday's Execution
Pat Hannon's jury never heard any evidence of mitigation and his codefendant
received a life sentence for the same crime.
The Florida Supreme Court has refused to grant a stay of execution for Patrick
Hannon. Justice Barbara Pariente dissented on the (Nov. 1, 2017) denial of a
stay: "In recommending between life and death in Hannon's case, the jury was
denied access to 'voluminous evidence of mitigation.' Also Hannon's
codefendant, who had personal motivation to commit the crime and first attacked
the targeted victim, received a life sentence of which this Court was unaware
when it affirmed Hannon's sentences on direct appeal. For all these reasons, I
dissent from denying Hannon relief from his pending death warrant."
Governor Scott ordered the execution of Patrick Hannon for Wednesday, November
8th at 6pm ET. Hannon was sentenced to death in 1991 for participating in the
killing of Brandon Snider and Robert Carter. He has been on death row 26 years.
Please Take Action!!!
Contact Gov. Rick Scott and urge him to halt the execution of Patrick Hannon
and convene the Board of Executive Clemency to commute Hannon's sentence to
Life in Prison With No Parole.
Governor Rick Scott
400 S. Monroe St.
Tallahassee, FL 32399
Phone: 850-488-7146 (Mon-Fri 8am-5pm)
When you call or write, please be sure to give your name and where you live. If
you are not a Floridian, provide a connection (i.e., visit Florida, have
friends/family there, want to move there someday, etc). The staffer answering
phones will be very nice and courteous. They won't question or challenge you.
They simply record the issues that people are calling for and make a tally to
give to the Governor.
Your voice needs to be heard. When contacting the Governor's office you can use
the sample script below:
"I'm calling to urge Governor Scott to halt the execution of Patrick Hannon.
His jury never heard any evidence of mitigation and his codefendant received a
life sentence for the same crime."
(source: Floridians for Alternatives to the Death Penalty)
Luis Toledo declines to testify in death-penalty case
Luis Toledo shook his head and said, "No sir," when the judge asked him on
Thursday if he wanted to testify before the jury which will recommend whether
he be sentenced to death.
Toledo, sitting between his attorneys, said he was not aware he would have the
chance to testify but declined it anyway.
When Circuit Judge Raul Zambrano asked if he wanted to talk to his attorneys
about testifying, Toledo again said, "No sir."
Zambrano then gave Toledo the option to return to jail in time for a hot meal
or remain for the conference in which attorneys and the judge work on
instructions for the jury.
Toledo opted for the hot meal, saying he trusted his attorneys.
Toledo, 35, was convicted last Friday of 2nd-degree murder for killing his wife
Yessenia Suarez, 28. He faces up to life on that charge. Toledo was also
convicted of 1st-degree murder in the deaths of her children Thalia Otto, 9,
and Michael Elijah Otto, 8.
Toledo killed his wife after being enraged when he discovered she was having an
affair. Then he killed the children to eliminate them as witnesses, prosecutors
Ryan Will and Mark Johnson said.
The family vanished Oct. 23, 2013, and their bodies have not been found.
The same jury that convicted Toledo must next decide whether to recommend that
Toledo be sentenced to death. That recommendation must be unanimous for the
judge to have the option to sentence him to death. If just one juror recommends
life, then the judge must sentence Toledo to life without parole.
Toledo had already declined to testify during the first portion of the trial
before the jury found him guilty.
Toledo had even said on Friday that he did not want to allow his attorneys to
argue against him receiving the death penalty.
"But when I confronted you with the fact that I may appoint an independent
counsel to do that, then you decided to allow your lawyers to do it for you,"
Zambrano said on Thursday when he referenced the issue while talking to Toledo
about whether he wanted to testify.
Toledo's day in court on Thursday began with a different talk from the judge: a
Zambrano told Toledo to stop making hand gestures, which the judge said were a
distraction and a security violation. A camera caught Toledo on Thursday making
the hand gestures. The video showed Toledo bringing his hand close to his face
and apparently signaling what appeared to be numbers with his fingers.
"I'm going to warn you not to do that again," Zambrano said.
It's unknown what the gestures meant. Toledo was once a top ranking member of
the Latin Kings gang in Florida. That's a fact that the judge ruled could not
be told to the jury because it was too prejudicial.
After the warning from the judge, the jury was brought in to continue hearing
evidence in the penalty phase against Toledo.
Toledo's defense attorneys, Michael Nielsen, Jeff Deen and Michael Nappi, are
trying to convince at least one juror to recommend life by saying that Toledo
has an abnormal brain and has suffered traumatic brain injuries and seizures
since a young child.
Nielsen called psychologists who testified about Toledo losing his father to
ALS and his mother also dying when he was young. Toledo also spent seven months
in a psychiatric hospital when he was 9, according to testimony.
Nielsen called Dr. Joseph Wu to testify about PET scan images of Toledo's
brain. Wu said the scans found a decrease of frontal lobe metabolism which is
consistent with a traumatic brain injury. Wu said a damaged frontal lobe would
make it difficult for Toledo to control impulsive and violent behavior.
Toledo also suffered seizures from when he was a child, according to testimony.
Wu said several times during his testimony that the stress from learning your
wife was having an affair could trigger a seizure. That in turn could make it
difficult for Toledo to control his behavior, Wu said.
During cross examination, prosecutor Johnson asked Wu whether he could tell
just by the PET scan alone that Toledo had suffered a traumatic brain injury.
Wu said no but that was his opinion based on other evidence, such as medical
records, including a time when Toledo was hit by a ball in the eye when he was
Johnson said the doctors at the time of those other incidences did not find a
Wu said that traumatic brain injuries are often missed in emergency rooms.
Johnson asked Wu if he asked Toledo about what was going through his mind the
night of the murders. Wu said no. Wu said his job was to perform the PET scan.
Johnson asked if it wouldn't have been best to ask Toledo. Wu said it was not
Nielsen then came back up and asked Wu whether the defense had asked him to
interview Toledo. Wu said no. Wu said he usually he does not interview people
in such cases.
The penalty phase resumes at 11:30 a.m. Friday with closing arguments after
which jurors will begin deliberations on whether to recommend death.
Johnson later called Larry Holder, a psychiatric expert for the state, who
testified that he did not see any signs of brain abnormality in Toledo's PET
The defense finished the day by calling Toledo's cousin, Madeline Gonzalez, who
identified Toledo in a family picture when he was 8-years-old.
But Toledo said he did not want the picture viewed by the jury. Zambrano asked
him if that was his decision.
"Correct," Toledo said.
Gonzalez also said she still cared for Toledo and would continue to support
So the picture will not be shown to jurors who will return to hear closing
arguments at the Richard O. Watson Judicial Center.
(source: Orlando Sentinel)
Will history repeat itself when it comes to the death penalty in Florida?
Florida requires unanimous juries in death cases, and judges can no longer
change sentences voted up by juries.
But, Florida is on a path to continue executing people who had less than
unanimous jury verdicts because of when they were sentenced.
In 2002, in a historic decision known as "Ring," the U.S. Supreme Court said
juries, not judges, must impose death sentences.
Over the next 14 years, Florida executed 40 men and women, all sentenced by
judges. All of them argued their sentences were illegal.
Then, in 2016, the nation's high court ruled Florida got it wrong.
"The Florida Supreme Court did not apply Ring after it was issued by the U.S.
Supreme Court," said Mark Schlakman, a human rights attorney. "The U.S. court
said, in effect, Ring does apply."
Now, history may repeat itself. More than 170 death row inmates, all sentenced
before 2002 and most by non-unanimous juries, still face death.
But, those convicted after Ring can't be executed without a new, unanimous
The practice, known as "partial retroactivity," was challenged at the highest
levels in the 2 most recent executions with no relief.
Both Mark Assay, who was executed in August, and Michael Lambrix, who was
executed earlier this month, argued they weren't being treated fairly.
"These legal distinctions, while accepted and appropriate, are far from a
fundamental fairness perspective," Schlakman explained.
Partial retroactivity won't be an issue for Patrick Hannon. The state is
preparing for another execution; he's set to die on November 6.
In 1991, his Tampa jury found his crimes so heinous, it recommended death
twice, both by unanimous verdicts.
The Florida Supreme Court began recommending a unanimous jury verdict to state
lawmakers in 2005.
The legislature failed to heed their warning until after the U.S. Supreme Court
declared the sentencing scheme unconstitutional early last year.
(source: Capitol News Service)
State high court upholds Curtis Giovanni Flowers' last conviction and death
The Mississippi Supreme Court in a 5-4 decision has once again upheld the
conviction and death sentence of Curtis Giovanni Flowers in his 6th trial
involving the 1996 killing of Winona furniture store owner Bertha Tardy and 3
of her employees.
The court's decision comes after being ordered last year by the U.S. Supreme
Court to take another look at Flowers' claim that African-American jurors were
excluded from his last trial in 2010 for racial reasons.
"We have thoroughly reviewed the briefs, arguments, record, and trial
transcript, and we have determined that each issue raised by Flowers is without
merit," Justice Josiah Coleman wrote in the majority opinion. "Therefore, as
there are no individual errors, there is no cumulative error. Each issue raised
by Flowers is without merit. Flowers' 4 convictions for capital murder and
sentences to death were properly decided by the jury, and we affirm."
In addition to Coleman, Justices Dawn Beam, Mike Randolph, James Maxwell and
Robert Chamberlin voted to affirm Flowers' convection.
Chief Justice William Waller Jr., Leslie King, Jim Kitchens and David Ishee
opposed upholding Flowers' conviction and death sentence.
"I find plain error in the prosecution's mischaracterizations, particularly
given our admonishments in Flowers II," Waller said of misstatements to the
jury. "Therefore, I would reverse the judgment in this case and remand for a
King wrote in a separate dissenting opinion that he couldn't say Flowers
received a fair trial.
"The State presented insufficient evidence to meet its burden," King wrote.
"The most that may be said in this case is that the jury could speculate that
Flowers committed one of the murders to avoid arrest. There was no evidence
that he did. In fact, the State argued in the guilt phase that Flowers
committed the murders for different purposes: revenge and anger over being
fired as well as to effectuate the robbery. From its opening statement, the
state's theory of the case was that Flowers possessed a motive to commit the
murders because he had been fired by Tardy's. This motive - a revenge killing -
is at odds with a conclusion that he killed out of a necessity to avoid arrest.
No evidence was presented that Flowers expressed an intent to kill to avoid
In May of last year, the Mississippi Supreme Court, in a unanimous decision,
refused Flowers' motion to force District Attorney Doug Evans to turn over law
enforcement and prosecution files in his case as well as Evans' notes, jury
strike sheets and other documents relating to jury selection in Flowers' 6th
After Flowers' conviction in 2010, Circuit Judge Joseph Loper Jr. issued a
42-page opinion denying Flowers' motion to throw out the jury verdict, or, as
an alternative grant him a new trial. The state Supreme Court affirmed Flowers'
conviction. However, Flowers filed a new post-conviction appeal, citing
Flowers' attorney, David Voisin, said normally there is presumption that the
prosecution has fully disclosed all information.
"Ordinarily, we presume that public officials have properly discharged their
duties. However, this is no ordinary case," Voisin said in the motions.
"Instead, the lengthy and tortured history of this case includes an extensive
history of prosecutorial misconduct, to be detailed in petitioner's forthcoming
petition for post-conviction relief."
The state Supreme Court reversed Flowers' conviction 3 previous times.
Flowers, 47, was first convicted in 1997 for killing Bertha Tardy and then in
1999 for killing Derrick Stewart. He received the death penalty in both trials,
but the state Supreme Court reversed the convictions on appeal.
In 2004, Flowers was tried when all 4 killings were consolidated into 1 trial,
and he again received the death penalty. The Supreme Court reversed that
decision as well.
(source: Clarion Ledger)
Halt Execution of Alva Cambell (USA: UA 247.17)
OHIO TO EXECUTE 69-YEAR-OLD 'STATE-RAISED' MAN
Alva Campbell, aged 69, is due to be executed in Ohio on 15 November. The
governor can commute the death sentence despite a parole board vote against
Write a letter, send an email, call, fax or tweet:
* Calling on the Governor to stop Alva Campbell's execution and commute his
Friendly reminder: If you send an email, please create your own instead of
forwarding this one!
Contact below official by 15 November, 2017:
Governor John Kasich
Riffe Center, 30th Floor
77 South High Street
Columbus, OH 43215-6117, USA
Fax: +1 614 466 9354
Email (via website):
Salutation: Dear Governor
(source: Amnesty International USA)
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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