Texas executes man for 1998 rape and murder of college student

The 12th Execution of 2019

Larry Ray Swearingen was executed at 6:47 p.m. on August 21, 2019  in Texas for the death of 19-year-old Melissa Trotter, reported CNN.

"Lord forgive them. They don't know what they are doing," he said in his last words.

Swearingen was sentenced to death in July 2000 for Trotter's abduction, rape and murder.

The Montgomery College student was last seen alive on December 8, 1998. Her body was found in the Sam Houston National Forest on January 2, 1999, with a torn pair of pantyhose tied around her neck.

Swearingen repeatedly challenged his conviction and sentence over the years, and his execution was postponed five times. Over the years, he argued that the case against him was built on circumstantial evidence and questionable forensics.

Prosecutors contended that Swearingen killed Trotter after she rejected his sexual advances. Witnesses testified they saw Trotter leave campus with Swearingen on December 8, according to court documents. The state also pointed to the fact that Swearingen's wife found a lighter and a pack of cigarettes matching Trotter's preferred brand in the couple's trailer, although they did not smoke, and a detective found a pair of pantyhose in the trash outside the trailer with one leg missing.

In a prepared statement his lawyer released after his death, Swearingen said he had proved his "innocence beyond any shadow of doubt," although it was not enough to stop his execution.

"Today the State of Texas murdered an innocent man. Sadly, so many people have suffered from all this. Melissa's family and friends were denied the opportunity for closure. My family was torn apart," the statement said.

"I want everyone to know I'm not angry about my execution. Sure I would've liked to live and go free. But I feel certain that my death can be a catalyst to change the insane legal system of Texas which could allow this to happen. I am now one of God's sacrificial lambs, and hopefully people will use my example to help keep others from experiencing this dreadful and wrongful persecution."

The week before his execution, Swearingen requested another stay based on two claims, according to court documents.

He argued that the state allowed "false and misleading" trial testimony regarding blood flecks found under Trotter's fingernails. He also claimed the state knew that a criminologist had "manufactured" evidence that the torn pantyhose used to strangle Trotter matched pantyhose found at Swearingen's house.

The Fifth Circuit Court of Appeals denied his request on August 16, saying the evidence he presented to support his claims was not strong enough to have made a difference to the outcome of his trial.

On Wednesday night, the Supreme Court turned down Swearingen's final appeal.

Swearingen nevertheless continued to maintain his innocence in an interview with the Houston Chronicle published Wednesday, and questioned if his scheduled execution would come to pass.

But the slain teen's mother told the Chronicle she is still convinced of his guilt.

"The overwhelming evidence is not just a coincidence," Sandy Trotter said. "There was a trial; he was found guilty, and they agreed on a sentence."

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Stevenson: Slavery gave America a fear of black people

An essay by Bryan Stevenson for the 1619 Project, New York Times Magazine:
The United States has the highest rate of incarceration of any nation on Earth: We represent 4 percent of the planet’s population but 22 percent of its imprisoned. In the early 1970s, our prisons held fewer than 300,000 people; since then, that number has grown to more than 2.2 million, with 4.5 million more on probation or parole. Because of mandatory sentencing and “three strikes” laws, I’ve found myself representing clients sentenced to life without parole for stealing a bicycle or for simple possession of marijuana. And central to understanding this practice of mass incarceration and excessive punishment is the legacy of slavery.

It took only a few decades after the arrival of enslaved Africans in Virginia before white settlers demanded a new world defined by racial caste. The 1664 General Assembly of Maryland decreed that all Negroes within the province “shall serve durante vita,” hard labor for life. This enslavement would be sustained by the threat of brutal punishment. By 1729, Maryland law authorized punishments of enslaved people including “to have the right hand cut off ... the head severed from the body, the body divided into four quarters, and head and quarters set up in the most public places of the county.”

Soon American slavery matured into a perverse regime that denied the humanity of black people while still criminalizing their actions. As the Supreme Court of Alabama explained in 1861, enslaved black people were “capable of committing crimes,” and in that capacity were “regarded as persons” — but in most every other sense they were “incapable of performing civil acts” and considered “things, not persons.”

The 13th Amendment is credited with ending slavery, but it stopped short of that: It made an exception for those convicted of crimes. After emancipation, black people, once seen as less than fully human “slaves,” were seen as less than fully human “criminals.” The provisional governor of South Carolina declared in 1865 that they had to be “restrained from theft, idleness, vagrancy and crime.” Laws governing slavery were replaced with Black Codes governing free black people — making the criminal-justice system central to new strategies of racial control.

These strategies intensified whenever black people asserted their independence or achieved any measure of success. During Reconstruction, the emergence of black elected officials and entrepreneurs was countered by convict leasing, a scheme in which white policymakers invented offenses used to target black people: vagrancy, loitering, being a group of black people out after dark, seeking employment without a note from a former enslaver. The imprisoned were then “leased” to businesses and farms, where they labored under brutal conditions. An 1887 report in Mississippi found that six months after 204 prisoners were leased to a white man named McDonald, dozens were dead or dying, the prison hospital filled with men whose bodies bore “marks of the most inhuman and brutal treatment ... so poor and emaciated that their bones almost come through the skin.”

Anything that challenged the racial hierarchy could be seen as a crime, punished either by the law or by the lynchings that stretched from Mississippi to Minnesota. In 1916, Anthony Crawford was lynched in South Carolina for being successful enough to refuse a low price for his cotton. In 1933, Elizabeth Lawrence was lynched near Birmingham for daring to chastise white children who were throwing rocks at her.

It’s not just that this history fostered a view of black people as presumptively criminal. It also cultivated a tolerance for employing any level of brutality in response. In 1904, in Mississippi, a black man was accused of shooting a white landowner who had attacked him. A white mob captured him and the woman with him, cut off their ears and fingers, drilled corkscrews into their flesh and then burned them alive — while hundreds of white spectators enjoyed deviled eggs and lemonade. The landowner’s brother, Woods Eastland, presided over the violence; he was later elected district attorney of Scott County, Miss., a position that allowed his son James Eastland, an avowed white supremacist, to serve six terms as a United States senator, becoming president pro tempore from 1972 to 1978.
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Democrat senators go after SCOTUS in amicus brief

It is rare that an amicus brief filed in a Supreme Court case is characterized as both a brassy reality check and unprecedented political bullying, reports the Washington Post

But such is the controversy that Sen. Sheldon Whitehouse (D-R.I.) and four other Democratic senators have ignited with a filing that instructs the Supreme Court to either drop a New York gun case it has accepted for the coming term or face a public reckoning.

 “The Supreme Court is not well. And the people know it,” writes Whitehouse, who is listed as the attorney of record on the friend-of-the-court brief. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ” The phrase is from a poll question with which a majority of Americans agreed.

Democratic Sens. Mazie Hirono (Hawaii), Richard Blumenthal (Conn.) Richard J. Durbin (Ill.) and Kirsten Gillibrand (N.Y.) joined the incendiary brief, which questions whether the court’s conservative majority — nominated by three Republican presidents — is motivated by partisan intent and is in the pocket of the National Rifle Association and the Federalist Society, a conservative legal group.

“Out in the real world, Americans are murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in active-shooter survival drills,” Whitehouse writes. “In the cloistered confines of this Court, and notwithstanding the public imperatives of these massacres, the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their ‘project.’ ”

The brief has lit up the right. Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) called it an extraordinary threat from one branch of government to another and tweeted: “Packing the Supreme Court . . . Bad idea. Liberal dream. Trump’s 3rd term is looking better and better.”

The Wall Street Journal editorial board dubbed it the opposite of an amicus filing — an “enemy-of-the-court brief” — and the National Review’s David French called it “astonishing.”

“It is easily the most malicious Supreme Court brief I’ve ever seen,” he wrote. “And it comes not from an angry or unhinged private citizen, but from five Democratic members of the United States Senate.”

In an interview, Whitehouse was unapologetic, saying he was cautioning the court, not threatening it.

“In the same way that you might warn somebody walking out on thin ice — ‘Hey, the ice is thin out there, you want to be careful, maybe you want to come in’ — I think that was the motivation for filing this brief,” said the former U.S. attorney and state attorney general.

“To warn the court that it already has its reputation in some degree of trouble . . . it’s getting to the danger that they might fall through the ice.”

The Supreme Court in January said it would hear New York State Rifle & Pistol Association v. City of New York, a case involving some unique-to-New-York restrictions on how gun owners with permits may transport their weapons. The rules were so strict that they forbade taking an unloaded weapon to a firing range outside the city or to a permit-holder’s second home within the state.

It is the first Second Amendment case the court has accepted in a decade, and it came after the NRA-endorsed Justice Brett M. Kavanaugh replaced the more moderate Justice Anthony M. Kennedy on the closely divided court. Gun-control advocates worried that the case would provide a chance for the new majority to establish a right to carry a weapon outside the home, or impose heightened judicial scrutiny on gun control laws.

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Trump softens on gun regulations after meeting with gun advocates

Days after a pair of deadly mass shootings in Texas and Ohio, President Trump said he was prepared to endorse what he described as “very meaningful background checks” that would be possible because of his “greater influence now over the Senate and over the House.”

But after discussions with gun rights advocates during his two-week working vacation in Bedminster, N.J. — including talks with Wayne LaPierre, the chief executive of the National Rifle Association — Mr. Trump’s resolve appears to have substantially softened, and he has reverted to reiterating the conservative positions on the gun issue he has espoused since the 2016 campaign, reports the New York Times.

Speaking to reporters on Sunday as he departed from New Jersey and returned to Washington, Mr. Trump said he was “very, very concerned with the Second Amendment, more so than most presidents would be,” and added that “people don’t realize we have very strong background checks right now.”

He also echoed the standard response to mass shootings delivered by the N.R.A., which since 1966 has pushed the government to focus on the mental problems of the gunmen rather than how they were able to obtain their guns. “I don’t want people to forget that this is a mental health problem,” Mr. Trump said. “I don’t want them to forget that, because it is. It’s a mental health problem.”

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Police in the U.S. make 10.5 million arrests a year

Police around the U.S. arrest people 10.5 million times each year, and many of those are unnecessary, contends a new report from the Vera Institute of Justice, reported by The Crime Report.

Because most arrests are not for serious crimes but for offenses like drug possession, public drunkenness, and disorderly conduct, many cases could be handled effectively by other means and thus not contribute to the nation’s mass incarceration, Vera suggested.

“To chart a new course in American policing, police should use arrest sparingly,
intentionally, and transparently,” declared the report.

The effect of arrests on incarceration is particularly noticeable in local jails, which held 745,200 inmates as of mid-2017, only a small number lower than the total in 2005.

Citing data from the FBI and the U.S. Bureau of Justice Statistics, Vera said that for every 100 arrests the nation’s 18,000 police departments made in 2016, there were 99 admissions to jail.

This compares with a much lower ratio 25 years ago, when there were 70 jail admissions for every 100 arrests.

Rates of reported crime have dropped sharply during that period, indicating that police these days are more likely to make an arrest in a typical case.

As the report puts it, “Police enforcement has become an expressway to jail.”

The high arrest totals have an especially severe impact on minorities. In
2016, black people were arrested at more than twice the rate of whites, approximately 5,313 and 2,444 per 100,000, respectively.

That disparity has been consistent for 15 years.

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GateHouse: The ‘right’ to counsel may depend on where you live

Matthew T. Mangino

GateHouse Media

August 16, 2019

The Sixth Amendment to the United States Constitution provides that ”(i)n all criminal prosecutions, the accused shall have the right ... to have the Assistance of Counsel for his defense.” What exactly does the Sixth Amendment guarantee?

The U.S. Supreme Court settled the issue more than 50 years ago in the landmark decision of Gideon v. Wainwright. In Gideon, the Court made it clear that the Sixth Amendment “requires appointment of counsel in ‘all criminal prosecutions’” - even when an indigent defendant cannot afford a lawyer.

The decision is recognized as one of the most important of the 20th century, but did it really alter the legal landscape? More importantly, did the decision finish the job?

In 1932, the U.S. Supreme Court decided Powell v. Alabama. The court ruled that the U.S. Constitution requires defendants in capital cases be given access to counsel upon request.

Ten years later in Betts v. Brady, the court refused to extend the right to counsel to criminal charges other than capital murder. In Betts, it was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not violate the U.S. Constitution.

Then came Clarence Earl Gideon, a 51-year-old drifter and petty-thief. He was charged with breaking and entering in Florida. The charge was a felony and when Gideon first appeared before the court he was without funds, without counsel and he asked the court to appoint him a lawyer.

The judge apologized to Gideon and said that Florida law only provides for counsel in capital cases. Gideon replied, “The United States Supreme Court says I am entitled to be represented by counsel.”

Gideon represented himself, was convicted and appealed to the Florida Supreme Court. His appeal was denied and his case made its way to the U.S. Supreme Court. The U.S. Supreme Court appointed a very capable attorney, Abe Fortas, to represent Gideon. Fortas would one day take a seat on the Supreme Court.

Fortas’ argument before the court was deliberate, learned and convincing. Fortas told the court that the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges.

He also pointed out that 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, 22 state attorneys general joined Gideon in urging the court to establish an absolute constitutional right to counsel in criminal cases. Only five states - Florida, Alabama, Mississippi, North Carolina and South Carolina - did not provide counsel for indigent defendants.

Justice George Sutherland wrote in Powell some 30 years before Gideon, “Even the intelligent and educated layman has small and sometimes no skill in the science of law.” Fortas argued in Gideon, “You cannot have a fair trial without counsel.”

Hugo Black wrote in Gideon, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries,” wrote the Court, “but it is in ours.”

As a result, the Gideon decision reaffirmed what all but a handful of states were already doing. What the decision didn’t answer was how is indigent counsel selected and managed - more importantly who pays the legal fees when the accused cannot?

According Criminal Legal News, depending on which of the 3,033 counties an accused resides, counsel is provided by contract attorneys, appointed attorneys or organized public defender offices. And depending on the state, the money to pay for these services is provided by the local government, the state or some combination of both.

The inconsistent method of providing and paying for indigent counsel inevitably leads to the inconsistent level of competence and experience of indigent defense.

Unfortunately, for many, the “right” to counsel in a criminal matter depends on where you live.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Tennessee uses electric chair to execute Stephen West on death row for 32 years

The 11th Execution of 2019
Tennessee executed its third inmate in the electric chair since November on August 14, 2019 for stabbing a mother and her 15-year-old daughter to death in 1986, reported the Associated Press.

State officials pronounced 56-year-old Stephen West dead at 7:27 p.m. at Riverbend Maximum Security Institution in Nashville.

This week, West decided he preferred to die in the electric chair after previously voicing no preference, which would have defaulted him to lethal injection. His attorney in a court filing wrote that the electric chair is “also unconstitutional, yet still less painful” compared with the state’s preference of a three-drug lethal injection.

Attorneys for inmates David Miller and Edmund Zagorski made the same arguments before they chose to die by the electric chair in 2018. Both unsuccessfully argued to courts that Tennessee’s procedure, which uses the drug midazolam, results in a prolonged and torturous death.

Tennessee has put three inmates to death by lethal injection since August 2018.

In Tennessee, condemned inmates whose crimes occurred before 1999 can opt for the electric chair.

West’s attorney has argued that some “feasible and readily implemented alternative methods of execution exist that significantly reduce the substantial risk of severe pain and suffering” compared with the state’s three-drug protocol or electrocution: a single bullet to the back of the head, a firing squad, a “euthanasia oral cocktail” or one-drug pentobarbital, according to a February court filing.

West was one of four death row inmates who sued last year, asking a federal court’s permission to use a firing squad as an execution method. Currently, just three states — Mississippi, Oklahoma and Utah — continue to allow the use of firing squads. However, the last time that method was used was in 2010.

The last state other than Tennessee to carry out an execution by electrocution was Virginia in 2013, according to Death Penalty Information Center data.

West was found guilty of the kidnapping and stabbing deaths of 51-year-old Wanda Romines and her 15-year-old daughter, Sheila Romines. He also was convicted of the teenager’s rape.

In a clemency plea to Gov. Bill Lee, attorneys for West wrote that his then-17-year-old accomplice Ronnie Martin actually killed both Union County victims. West was 23 at the time. Their cases were separated, and while West was sentenced to death, Martin pleaded guilty as a juvenile and received a life sentence with the possibility of parole in 2030.

In a court filing, the state said West brutally stabbed the victims to death. An expert at West’s trial concluded two people were involved in stabbing the teen.

Regardless of the arguments about who killed the women, Tennessee is one of 27 states that allow executions of “non-triggermen” convicted of involvement in a felony resulting in a victim’s death, even if they didn’t kill anyone themselves, according to the American Civil Liberties Union.

West’s clemency filing says the jury never heard a jail recording from Martin saying he carried out the killings, not West. But a 1989 state Supreme Court opinion rejected the recording as uncorroborated hearsay that wouldn’t have exonerated West.

West’s attorney opted against playing the tape at sentencing because the judge would have allowed other recordings in which Martin incriminated West, court records show.

The governor denied West’s clemency application, which also said West had been taking powerful medication in prison to treat mental illness.

West’s attorneys also said the jury didn’t hear about his abusive upbringing because his parents paid for his lead lawyer. They wrote that the abuse created conditions that made West freeze in response to traumatic events.

Another Tennessee execution is scheduled in December.

Charles Walton Wright had been scheduled to be put to death in October, but died in prison in May.

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