Elementary, My Dear Watson

How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?

Sherlock Holmes, The Sign of the Four

His name is Larry Swearingen, and whatever he did or might have done, he did not murder Melissa Trotter.

Oh, she was murdered.  And there's a wealth of circumstantial evidence that led the cops to arrest and the DA to prosecute and the jury to convict Swearingen of Trotter's kidnap, rape, and murder.  And the law allowed it and it was Texas so there's no surprise, really, that in the summer of 2000, after the trial, Swearingen was sentenced to be killed.

He appealed, of course.  And argued.  And made his claims.  And there he was, near the end.  August 18 is when they planned to kill him.  Until someone said to hang on.  Because, see, whatever Larry Swearingen did or might have done, he did not murder Melissa Trotter.  Really, it's not even a debatable point, though the state of Texas continues to debate it.

Here's the thing.  Years after the trial, in 2007 and then in 2009, experts (even the coroner actually looked at evidence from Melissa Trotter's body to figure out when she was killed.  Huh?  Don't they always do that?

Apparently not.

Here's the thing.  Trotter disappeared on December 8, 1998.  She and Swearingen, who knew her and had a relationship with her, were seen together that day.  She was never seen alive again.  He was arrested on traffic warrants three days later and has been in custody ever since.  Her body was found in January.  And there was all that circumstantial evidence (and there was plenty).

But when the scientists actually looked at the physical evidence of the body, well, ooops.  Seems she wasn't killed until after he was in custody.  Couldn't have been.  So say some 10 separate scientists based on several different sorts of analysis.

Let's be clear.  If she wasn't killed until after he was in custody, then he couldn't have done it.  Not possible.

But all that circumstantial evidence.  My god.  Of course he did it.

Except he couldn't have.

Swearingen's been trying to get the courts to look at this, to recognize that if it was impossible for him to have killed her, then he didn't.  The courts weren't biting.

Prosecutors in Montgomery County do not buy the setup theory, and the courts have rejected repeated pleas from Mr. Swearingen’s lawyers to review the scientific evidence. Brandi Grissom, for the Texas Tribune explains.
In a November 2009 court ruling, Melinda Harmon, a judge in the United States District Court, wrote that Mr. Swearingen should have discovered and presented the forensic evidence years earlier. But she did not only deny his plea based on procedure; Ms. Harmon wrote that the scientists’ reports were not credible because they each reviewed different kinds of evidence. Some looked at microscopic tissue samples, some examined photos and video, and others looked at bugs. “This is not a case where Mr. Swearingen’s evidence is so compelling that a court cannot have confidence in the outcome of his trial,” she wrote.

OK, what Judge Harmon said was a little more nuanced than Grissom makes it sound, but that's the general point.  The experts didn't agree on all the details, and there's still some stuff that's troubling.

So there sat Larry Swearingen.  On death row.  To be executed August 18.  For a crime that, whatever he did or might have done, he did not commit.  

And then.

Look, we know Keller's view, that finality is more important that innocence.

We know that Trotter's family wants Swearingen killed.

We know that the courts have never been convinced and the prosecutors aren't even close.

And yet, and over dissents (including by Keller and her opponent in the next election), the Texas Court of Criminal Appeals stayed the killing and sent the case back to the trial court.

[T]o review and resolve the claims raised.

Hard to know exactly what that review will entail.  But Swearingen gets to present his evidence.  Which is no small thing.

Since whatever Larry Swearingen did or might have done, he did not murder Melissa Trotter.

As Holmes would say, it's elementary.

Swearingen Op

To Exact Revenge

So the jury said Anthony Sowell did it.  Raped and murdered 11 women.  Kept bodies and body parts hanging around.

Now what?

For a week, the experts have been testifying and arguing.

• He was nuts.
• He knew what he was doing.
• He suffers from.
• No he doesn't.  And it doesn't matter anyway.
• Yes it does.

All of which is about getting to the nub of things. 

Here's what we know.

Anthony Sowell will die in prison.

Here's what we don't know.

Will he be murdered by agents of the state of Ohio or will he die by other means.

Technically, and even if he's sentenced to be murdered rather than to death in prison, we won't know for years.  There are appeals and motions and a clemency hearing (some of that whether he wants it or not).  But none of that is really the point.  The point is what to do with him.

Regina Brett, columnist for the Plain Dealer, reveals her answer in the snappy title of today's column.

Anthony Sowell should not be sentenced to death.

Her argument goes roughly like this.

The death penalty doesn't deter.  It certainly didn't deter Sowell.  Whatever the experts say, Sowell is obviously crazy as a bedbug.  He actually does well in a highly controlled environment, you know, like prison.  Let him stay there forever.

Frankly, that's not much of an argument.  She's left out the connections.  A, B, Z.  Yeah, but how do you get there?  Here's what she didn't bother to write.

When we kill for no purpose other than revenge, when we kill people who are crazy, when we kill just to satisfy our own lust for blood, we become killers.  Without any hint of justification.  There's no need to kill Sowell.  There's no point to it.  It won't restore anything.  Let's put him where he can do no harm.  That protects and punishes.  But it doesn't make us into killers also.

At least, I think that's the argument she wanted to make.  And she's right.  (Or maybe I am.) She does get this part right though.

No matter what the diagnosis, those 11 women are still dead, those 11 families are still grieving and Anthony Sowell is still a man whose mind is a mess.

Of course, in today's electronic world, everyone gets to respond. So at 8:28 this morning, 1BL2MNY (which I hope doesn't stand for what I think it might) wrote

I really don't care if he gets the death penalty or not. It is the cost of this fiasco that is troubling to me. This trial has costs the taxpayers over $750,000 to date. We will be forced to pay more with the appeals that are sure to come with a death verdict. I don' know if it was ever an option, but a plea deal of life without parol should have been made from the get go. 

A fair question, perhaps.  Cost is probably the worst reason (morally, ethically, socially) to have or not have a death penalty.  In the real world, it matters a lot.  In any event, and especially for those who paid attention and know that the families of those 11 women, or at least some of them, actually petitioned the prosecutor to strike a deal (for personal reasons that had nothing to do with money), the idea of a deal for death in prison rather than death by needle in prison made sense.

Except it only made sense if you thought the death penalty served some purpose other than blood lust.  At 8:32, just 4 minutes after 1BL2MNY posted that comment, ManginisMother posted this reply.

You are 100% correct. But a plea deal for life in prison would not allow us to exact revenge.

Which is the truth.

And is, of course, at the heart of why we shouldn't kill.

Texas Three Step

STEP ONE - LET'S CALL THE WHOLE THING OFF (or Who Cares If He Was Innocent?)

That's Cameron Todd Willingham, of course.

I'm not going to review the whole sordid mess in detail here, just the quick and dirty by bullet point.

• Convicted of capital murder and sentenced to die for setting a fire that killed his kids.
• Evidence that the fire was set is pure junk.  Science says there's no evidence of arson.  As in none.
• Executed anyway.
• When he signed off on the killing, Gov. (and presumed presidential candidate) Perry had the information before him about the junk science but chose to ignore it.
• More investigation makes public aware that there's essentially no evidence of murder.
• Texas Legislature sets up Forensic Science Commission to investigate shit like that.
• Just as Commission is set for hearing on Willingham case, Perry replaces three members, including the chair.
• New chair, John Bradley, calls off hearing.  Rewrites Commission rules to prevent any investigation.  Commission eventually rebels.
• Hearing is held after Perry is relected (which seems to have been the point) and surprise, experts say what we knew - no evidence of arson.  State brings in a lawyer to say that in his opinion there sure was.

Do you reopen cases?  Do you issue a real report on Willingham?  Do you admit killing an innocent guy?  Do you admit there's at least a chance you did?

Or do you get the Attorney General to issue an opinion saying that Commission could investigate the case but couldn't look at the evidence?

Alan Turner, writing in the Houston Chronicle, notes that current Commission chair, Dr. Nazim Peerwani, doesn't know for sure what will happen next.

"We will debate what impact the opinion has on Willingham at our meeting in September," he said. "It's something we will collectively decide."

Bradley, who was ousted from the chairship by the legislature, knows the right answer.

"I'm not on the commission, so I don't know what it will do," he said, adding that, given Abbott's ruling, moving forward with the investigation "would really threaten the rule of law."

He meant to say the Law of Rule.  Or maybe the Law of Cover-Up.  But then, like Humpty Dumpty, when he uses a word 

it means just what [he] choose[s] it to mean -- neither more nor less.

OK, maybe less.

Paul Kennedy has more on this.

STEP TWO - YOU'RE BREAKING MY HEART (or "It's real lives we are dealing with")

 

Last week, Rufus Sito Nanez, III lost his appeal.

Nanez had appealed his conviction on two counts of aggravated sexual assault.  His claim was that his trial lawyer was a grotesque incompetent.  The court of appeals disagreed.  Actually, it didn't just disagree.  It excoriated him and his appellate counsel.

Counsel is not ineffective simply because he did not do that which his accuser thought he should have done.   Nor is he legally deficient simply because some attorney who enjoys the benefit of hindsight and cool reflection would have taken a different tact.   Indeed, appellate counsel should not only recognize what is required by law but also use caution when calling someone ineffective.   Those before us today should heed that admonishment when next they think about invoking the theory.   Unfounded and undeveloped accusations like those uttered at bar needlessly belittle their human target and do little to serve a client's interests.   It “ain't” a game folks;  it's real lives we are dealing with.

Well, yeah.

But the lives at issue aren't the lives of the lawyers.  They're the lives of the defendants. 

The opinion in Nanez was written by Justice Quinn.  He's been down this road before.  In fact, he cites  an opinion he wrote in 1998 making the same point.

Claims of ineffective assistance seem to be the newest tactic in the criminal defense arsenal. They are increasingly being offered as a means of attacking the judgment. Yet, it has been our experience that very, very few have any semblance of probative value. Instead, appellants have ignored the admonishment that hindsight and perfection are not the test and have taken to castigating counsel for not doing what they would have done if they were lucky enough to have a record of the completed trial before them. It is enough that attorneys have become the butt of disrespect and incessant jokes within the public eye. But, to have attorneys attack attorneys on utterly baseless grounds, like here, where appellant does not even attempt to question the evidence of his guilt, is unacceptable.

OK, got it now.  You can only claim your lawyer was a fuck up if you're factually innocent.

Otherwise we might be concerned about, say, fair trials.

H/t Liberty and Justice for Y'all

STEP THREE - GOODNIGHT IRENE (or Don't Let the Door Hit You on the Way Out)

Killer Keller is running for Chief Judge of the Texas Court of Criminal Appeals.  Why not?  She wasn't actually censured or removed from office or defrocked or anything.  And there are still doors to slam, so her work isn't done.

If she wins the election this year and serves her full term, she'll have been CJ longer than anyone else in Texas history.  Enough.

From Grits.

Judge Larry Meyers - usually a member of the Keller-Hervey pro-prosecution wing of the CCA - has decided to run against Sharon Keller as presiding judge in 2012 in the Republican primary.

I'm not sure there's actually a wing of the court that isn't "pro-prosecution," but I get the point.  You wouldn't expect it of Meyers.

Meyers' challenge comes from a judge who's sided with Keller on most topics - and even went on a damage-control tour with the media on her behalf at the height of her troubles - but who now appears to have had enough of her. 

According to the Fort Worth Star-Telegram, there's nothing personal or even substantive here.  Meyers just thinks it's time for a change.

The normal term for this position is 8-10 years. As such, it is time to rotate the presiding judgeship on our Court.

More to keep a eye on.

As they like to say down there, 

It's a Whole 'Nother Country.