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"Although my concurrence in the foregoing opinion makes it unanimous, I write separately to address the elephant that I perceive in the corner of this room: actual innocence. Consistently repeating the mantra that, to date, the Supreme Court of the United States has never expressly recognized actual innocence as a basis for habeas corpus relief in a death penalty case, this court has uniformly rejected standalone claims of actual innocence as a constitutional ground for prohibiting imposition of the death penalty. The Supreme Court has, however, made statements in dicta which at least strongly signal that, under the right circumstances, it might add those capital defendants who are actually innocent to the list of persons who – like the insane, the mentally retarded, and the very young – are constitutionally ineligible for the death penalty.

I conceive the real possibility that the district court to which we return this case today could view the newly discovered medical expert reports as clear and convincing evidence that the victim in this case could not possibly have been killed by the defendant, yet find it impossible to force the actual-innocence camel through the eye of either the Giglio or the Strickland needle, and thus have no choice but to deny habeas relief to an actually innocent person. Should that prove to be so, this might be the very case for this court en banc – or the U.S. Supreme Court if we should demur – to recognize actual innocence as a ground for federal habeas relief. To me, this question is a brooding omnipresence in capital habeas jurisprudence that has been left unanswered for too long."

JACQUES L. WIENER, JR., Circuit Judge, In Re: LARRY RAY SWEARINGEN (January 26, 2009)


The morning of December 8, 1998 Swearingen arrived at his parents home on Old Montgomery Road, Willis, Texas around 9:30am. (29 R.164) (33 R.82) After leaving the Old Montgomery Road residence, Swearingen was tracked south to the Woodlands, where records show he had automotive work done at Sears Automotive Center starting around 10:17am. Work appears to have been completed around 11:03am. (25 R.248-252). Swearingen's cellphone records introduced at trial, show two calls being made at 10:17am and 10:42am from the general location of Sears Automotive Center. (27 R.61 lns.18-25) (27 R.62 lns.3-7) (State's Exhibit 63). Swearingen was tracked further south into Houston, where sale's receipts showed Swearingen made one single transaction at the FM1960 West Cavendars Boot Town location at 11:39am. (25 R.267-70) (27 R.63 lns.16-20).

It appears Swearingen, once leaving the Cavendars Boot Town location, was traveling north towards his Brandon Road residence in Willis, Texas. Cellphone records show Swearingen at 12:00pm (noon) made a call near the FM1960 West and I-45 North intersection. (27 R.64 lns.16-21) (State's Exhibit 63). Through Swearingen's own statement dated December 11, 1998, he was tracked north back into the Woodlands area where he stopped and washed his truck around 12:30pm at the Rayford/Sawdust Road Carwash. (26 R.44 lns.16-25) (State's Exhibit, unedited video statement of Swearingen). Though Detective Bryan Dubose testified Swearingen utilized the Willis Carwash location, review of the video statement, Swearingen clearly provides detectives with the Rayford/Sawdust location.

Leaving the Carwash, cell phone records show that Swearingen made a 1:15pm call from the general area of the Montgomery Community College. (27 R.65-66 lns.25-2) (State's Exhibit 63). Swearingen was next seen by Officer Gail Wilson at the Montgomery College, where she and he spent some time together before Officer Wilson returned to the ELC building to use the telephone, with Swearingen following along. (25 R.84; 88; 92). Upon entering the ELC building around 1:30pm or so, Swearingen and Melissa Trotter saw one another for the first time that day. According to computer records Trotter logged onto her school e-mail account at 1:37pm (25 R.168). Swearingen and Trotter visited for a short time. Swearingen left the school alone.

Cell phone records show Swearingen made two calls near the intersection of FM1488 and I-45 North at 2:05pm and 2:09pm. (27 R.66) (State's Exhibit 63). Cell calls were being placed a considerable distance from the Montgomery College and McDonalds on Hwy 242 and I-45 South.

Tracking further north, Swearingen was seen next by his grandmother around 2:30pm at Ms. Davis' apartment in Conroe, located on North Loop 336 West and I-45 North. Ms. Davis was explicit in her times, providing names of those to whom was was speaking to on the telephone from when Swearingen arrived at her residence around 2:30pm, until she and Swearingen returned from the Post Office around 3:00pm. Looking at the clock upon arrival and television shows airing, Ms. Davis was able to provide an accurate time frame for when she and Swearingen were together. (33 R.90-95).

Tracking Swearingen further north on I-45 had him making a cell phone call at 3:03pm, just south of the FM1097 corridor, which Swearingen lived north of, indicating he had not arrived home to the Brandon Road residence. (27 R.67 lns.9-14) (27 R.77 lns.8) (State's Exhibit 63). Mr. John Harrell, Swearingen's landlord, saw him at the Brandon Road residence around 3:30pm, and leave a few minutes later. (29 R.12; 16 ln.9).

After leaving his Brandon Road residence, Swearingen was seen by Mr. Joe Martinez around 4:00pm at North Shore Marina located on FM1097 West, where Swearingen was removing his jet-ski from behind the Marina where he normally kept it. (24 R.58 lns.23-25) (State's Exhibit 9, security video dated December 6, 1998). Swearingen and Mr. Martinez discussed their electrical job for the evening at the McDonalds on FM1097 West and I-45 South, before Swearingen left to return the jet-ski to Awesome Aqua Toys for the remaining repairs to be completed.

Swearingen was tracked from North Shore Marina on FM1097 back to his Brandon Road residence, where shortly after 4:00pm Swearingen's wife paged him to pick she and their daughter up at the Old Montgomery Road residence (29 R.166). Swearingen, at 4:25pm made a cell phone call to the Old Montgomery Road residence, returning his wife's page. Swearingen's landlord, Mr. John Harrell, saw Swearingen leaving his Brandon Road residence around 4:30pm, indicating Swearingen had to be home in order to be seen leaving. (26 R.22) (27 R.67 lns.18-25) (27 R.78-79) (State's Exhibit 63).

Swearingen was next seen at the McDonalds located on I-45 and FM1097 around 4:30pm by Mr. Joe Martinez, before he traveled onto the Old Montgomery Road residence to pick up his wife and daughter. (29 R.166-67) (33 R.83). It appears Swearingen, along with his wife and daughter, returned to McDonalds where Swearingen spoke with Mr. Martinez and Mr. Carl Jones before returning to their Brandon Road residence, where Swearingen remained the rest of the evening with his wife and daughter. (26 R.27-28) (29 R.183) (27 R.73).


Three witnesses saw (Swearingen) sitting with Melissa in the Montgomery College library between 11:30am and 1:30pm on December 8, 1998.

As previously discussed in summary of facts, Swearingen was not, and could not have been the male that witnesses claimed to have seen with Trotter between 11:30am and 1:30pm on December 8, 1998. It appears while each witness identified Swearingen at trial, subsequent testimony shows they saw two different and separate males that were not Swearingen.

Q. Can you describe what he was wearing?
A. He had a cowboy hat, looked like blue jeans, boots, and I remember a, like, a blue-jean coat.

Id., 25 R.27-28. This witness viewed the male he saw with Trotter from the side for approximately 5 seconds. Id. However, as counsel showed on cross-examination, the male seen with Trotter had blond hair with a large build., Id. At 33-34. Swearingen, however, has black hairs, not blond.

The State's next witness, claimed to have been about 15 feet from the male and Trotter. Like the first witness, this witness viewed the male from his side and described him to the court as follows:

Q. What was the person wearing, if you can recall?
A. He had a baseball cap on, some western wear, kinda tall, heavy set.

Id., at 184. This witness however, did not initially identify anyone in the courtroom. Instead, with coaching from the District Attorney, he identified the male most likely the one he claimed to have seen Trotter with. Id., at 186; 199-200. Even though each witness eventually identified Swearingen, their testimony is suspect. Trotter's biology teacher testified that Trotter was in her class study session scheduled from 11:30am to 1:30pm on the 8th of December, 1998. The following testimony was given to the court:

Q. Directing your attention back to December the 8th of 1998, were you having class that day?
A. We were having a review session for the final that was going to be on the 10th.
Q. When was that review session scheduled for?
A. 11:30 to 1:30.
Q. Was Melissa present at the review session?
A. Yes, she was present.

Id., at 26 R.4-5. It appears law enforcement's photo lineup was sufficiently suggestive by having Swearingen stand with blond males, of a smaller build, and Swearingen wearing jail clothing, to create a misidentification (25 R.32-34; 206).

(Swearingen's) wife observed Melissa's cigarettes and lighter in (Swearingen's) home that evening, and those items were subsequently recovered from (Swearingen's) home during the investigation.

Trial testimony and police records demonstrated Swearingen's wife had been concealing her smoking habits. The following was presented:

Q. Now, I believe the State asked you if you were a smoker. Have you ever smoked?
A. No.
Q. Never in your life?
A. No, sir.
Q. Never bummed cigarettes from your relatives?
A. Yes.
Q. What kind of cigarettes were they?
A. Marlboro.

Id., at 29 R.178-79. Mrs. Swearingen did in fact, smoke and concealed this habit from her husband, Larry Swearingen, with the help of relatives. Not only did Mrs. Swearingen smoke, but DNA testing on the Marlboro cigarettes found at Swearingen's home excluded Trotter. (30 R.136).

Additionally, evidence collected by the Montgomery County Sheriff's office showed numerous Marlboro cigarettes and butts were collected from the yard and trash of Swearingen's home. DPS criminalist testified, after comparing the plastic wrapper from Marlboro cigarettes found in Trotter's vehicle to the package found in Swearingen's home, that there was no physical match between the two items. (30 R.67-68).

Following (Swearingen's) arrest, law enforcement authorities observed and photographed red marks on (Swearingen's) neck, cheek, and back.

Neither law enforcement nor trial counsel communicated with Swearingen or his family to determine if there was any medical condition Swearingen suffered from that would explain such symptoms at the time of his arrest. Had law enforcement or trial counsel communicated with Swearingen or his family, they would have discovered Swearingen suffered from chemical exposure after an electrical transformer exploded on him causing rushes and 'welts' on his back, neck, and face as a result. The following was presented to the court:

Q. Mrs. Swearingen, I have a few questions for you, please. During your marriage to Larry, was he ever injured in a transformer explosion?
A. Yes, I think so.
Q. Do you recall when that occurred?
A. No, I don't remember.
Q. What kind of symptoms or injuries did he exhibit after the accident?
A. He would break out, like, in welts on his neck.
Q. On his back?
A. On his back, neck, and on his face.
Q. You've seen this on more than one occasion?

Q. Mrs. Swearingen, I'm going to show you some photos here that purport to be Larry and ask you if these are the kinds of welts or break outs that we're talking about?
A. Yes, it looks like it.
Q. How about this one?
A. Yes, that's what it looks like.
Q. This one?
A. Yes.

Id., at 29 R.177-89. The Court seems to suggest Trotter had something to do with these marks, however, the male DNA found under Trotter's fingernails excluded Swearingen as the donor. (30 R.127; 134).

Two of Melissa's hairs that were recovered from (Swearingen's) truck still contained the anagen root, indicating they had been forcibly removed from Melissa's head.

This is for most a case of prosecutorial and forensic misconduct for their intentional sponsorship of false testimony to the court and jury. The State called DPS criminalist Ms. Sandy Musialowski to testify concerning hair and fiber evidence that State alleged was inculpatory. Ms. Musialowski testified two (2) hairs recovered from Swearingen's truck had been forcibly removed suggesting a struggle between Trotter and Swearingen. This, however, can only be described as false and misleading, at best. The following was presented to the Court and Jury:

Q. What is this?
A. State's Exhibit 259 is an envelope containing a tape lift from the suspect's vehicle, along with hair recovered from the suspect's vehicle.
Q. The hair in 259, do you know whether or not the hairs in this exhibit are the forcibly removed hairs from the suspect's vehicle?
A. Yes.
Q. Belonging to the victim?
A. Which contain microscopic characteristics similar to the victim.
Q. Those are the ones forcibly removed?
A. Yes, there were two of them forcibly removed.

Id., at 30 R.55-56. However, after continued investigation, submitted reports to the District Attorneys office by DPS criminalist Ms. Sandy Musialowski shows the hairs testified to as belonging to Trotter cannot be said to have belonged to any one individual, to the exclusion of all others. In other words, hairs found in Swearingen's vehicle could belong to anyone, including Swearingen's children, wife, or anyone else that had been in his vehicle. The following was submitted in a supplemental report by Ms. Musialowski dated October 25, 1999:


DPS Supplemental Report of Sandy Musialowski (October 25, 1999)DPS Supplemental Report of Sandy Musialowski (October 25, 1999)


The State knowingly and intentionally sponsored false testimony by allowing DPS criminalist Ms. Sandy Musialowski to testify hairs belonged to Trotter, when her own report states otherwise.

On December 17, 1998, two neighbors of (Swearingen's) mother and stepfather collected numerous pieces of torn paper from along their street, which turned out to be Melissa Trotter's class schedule and some health insurance paper work Melissa Trotter's father had given to her.

On Tuesday, December 8, 1998, Melissa Trotter went missing from the Montgomery County Community college. Three days later, Friday, December 11, 1998, Swearingen was incarcerated for unrelated charges and traffic warrants, where he has remained to date (25 R.161).

State's witness, Mr. John Parsley, while putting his garbage out on Thursday, December 17, 1998, discovered numerous torn pieces of paper along the ditch area in front of his home. (28 R.140). Mr. Parsley explained his normal trash days were Mondays and Thursdays. Id. Before the discovery of these torn pieces of paper, Mr. Parsley had 2 separate trash pickups where no papers were evident in the ditch area where he had discovered them. Id., at 141. There were no papers on Thursday the 10th, nor on Monday the 14th while putting trash out. Id. The papers were damp, most likely from the morning dew, but not wet, just damp. Id., at 143.

As uncontested testimony showed, Swearingen was already incarcerated when these papers appeared in the ditch area of Mr. Parsley's home. In reviewing the December, 1998, calendar, it's impossible for Swearingen to have been responsible.


Understanding Texas' Unjust System

America's States have to abide by the United States Constitution, or Federal law. Each State has its own laws. Their laws must coincide with federal law. Before the Antiterrorism and Effective Death Penalty Act [AEDPA] was passed in 1995 if the trial court got a conviction by violating federal law, the federal court would most likely order a new trial. Now however, under the AEDPA, the federal court has to find that the trial court, not only violated federal law, but the violation has to have been unreasonable and perverse. The federal court must rule that no reasonable judge would have reached the State courts conclusion, which is far more difficult standard to meet because judges rule based on their own opinions and interpretations of the law.

How this Equal's Faster Executions'

Several things contribute to the fast executions in Texas. The AEDPA is the main factor, because it allows trial judges and Texas' highest court of appeals to easily turn down defendant's appeals. Even if they are wrong and fail to apply the law appropriately, if their decision was not unreasonable and perverse the federal courts cannot make a different ruling. Before the AEDPA was passed, the average person spent 12 years on death row due to pending appeals; now a person is fortunate to spend 4 years on Texas' death row.

By tying the federal courts hands, they have allowed Texas to rule by its law, not by the true standards of the United States Constitution. In 1995, Texas legislature passed laws that gave inmates on Texas death row appointed attorneys, and set funding at $7,500 dollars for the case. The funding was so low that qualified attorneys didn't want to take death row cases, leaving them to less qualified attorneys, which amounted to lame appeals being filed for inmates facing death. Texas also shortened time to file appeals. Essentially, the changed law to give inmates only 45 days to have the case investigated and filed with the convicting court before proceeding to the appeals court. The intense investigation needed in a capital murder case cannot be conducted in 45 days.

Coupling the qualified attorneys and shortened time limits, cases that are easily rubber stamped through the State appeal system. No real investigation is conducted. Once State court denies the appeals, the inmate appeals to the federal court, but can only argue the same claims that were appealed in State court proceedings. The federal court will only examine the rulings made by the convicting court judge and if the rulings are not unreasonable and perverse, even if the federal court disagrees with the ruling, they can't grant relief or reverse the case. Those standards passed within the AEDPA are why Texas has killed over 400 people since 1995. The 1995 Act which then President Bill Clinton signed into law, has allowed Texas to execute at an unacceptable rate; Truth and Justice is being denied by Texas courts over wanting “Finality“

Antiterrorism and Effective Death Penalty Act (AEDPA)