Day: February 5, 2014

TEXAS – CCA Denies DNA Testing in Swearingen Case



Court Reverses DNA Testing Decision in Swearingen Case

The state’s highest criminal court on Wednesday unanimously reversed a lower court’s decision to allow further DNA testing in the case of death row inmate Larry Swearingen, sending his case back to a district court for further proceedings.

Swearingen was sentenced to death in 2000 after he was convicted of kidnapping, raping and killing 19-year-old Melissa Trotter in Montgomery County. His lawyers say DNA testing on evidence found near Trotter’s body could prove his innocence, but prosecutors say further testing is unnecessary.

James Rytting, a lawyer representing Swearingen, said he would revisit the present motion for further DNA testing now that the case is before the district court once again.

“They remanded it,” Rytting said of the Court of Criminal Appeals’ decision. “They didn’t say DNA testing is completely forbidden.”

Bill Delmore, the Montgomery County assistant district attorney prosecuting Swearingen’s case, said he would ask the court to set another execution date, adding that there was a “mountain of evidence” of Swearingen’s guilt.

“Here we are, back where we started,” he said.

february 5, 2014

Death row inmate Larry Swearingen cannot prove that biological materials exist on evidence connected to the 1998 murder of Melissa Trotter – including on the alleged murder weapon – and therefore is not entitled to DNA testing of those items, the Court of Criminal Appeals ruled this morning.

Swearingen was convicted and sentenced to die for the 1998 murder of 19-year-old Trotter, a Montgomery County community college student who disappeared from her college campus on Dec. 8, 1998. Her body was found several weeks later, by a group of hunters, in the Sam Houston National Forest near Lake Conroe.

Swearingen was seen with Trotter on campus not long before she disappeared. He has maintained his innocence and has been seeking DNA testing for a decade. Among the never-before-tested items of evidence are two lengths of pantyhose – one used to strangle Trotter, found around her neck, the other later found by Swearingen’s former landlord inside a house Swearingen and his wife had previously rented from the man.

The state maintains that visual comparison proves the two pieces came from a single pair of hose. Neither piece has ever been subjected to DNA analysis.

In ruling against Swearingen on Wednesday, Judge Paul Womack wrote for the unanimous court that a district court ruling that last year approved the requested DNA testing would be overturned because Swearingen “cannot prove the existence of biological material” that could be tested. Although the defense presented to the district court expert testimony that biological evidence would “likely” be found on the pantyhose that is not enough to secure testing, the court ruled. “[W]e have explicitly held that appellee must prove biological material exists and not that it is merely probable.”

In other words, without testing, there can be no testing.

The court’s conclusion also precludes any testing of cigarette butts found near Trotter’s body or of Trotter’s clothes, absent a showing that biological material exists on each item.

Only finger nail scrapings taken from Trotter are considered “biological evidence per se” and thus not restricted by the need to prove DNA exists before testing can be done. Only some of the collected scrapings were tested, and material found from under one of Trotter’s fingernails produced DNA from an unknown male.

Still, that result is not enough to convince the court that if additional testing were to be performed it would do anything to convince a jury of Swearingen’s innocence. “In order to be entitled to DNA testing,” Womack wrote for the court, “[Swearingen] must show by a preponderance of the evidence (51%) that he would not have been convicted if the exculpatory results were available at trial.”

Indeed, the unidentified profile previously identified was presented to Swearingen’s jury, the court notes, apparently without effect. “Since the jury already was aware that an unidentified male’s DNA was found under the victim’s fingernails, we fail to see how other such results would have changed its verdict,” Womack wrote. “The jury chose to believe that the foreign DNA either was contamination or that it came rom outside the context of the crime.” In short, the court concluded, Swearingen “cannot show that new testing would lead to a different result.”

During a December hearing on the matter before the CCA, Montgomery County prosecutor Bill Delmore told the court that the mountain of circumstantial evidence against Swearingen is insurmountable and that even if further DNA testing revealed additional evidence from another male – even from a known “serial killer” – that he would conclude only that Swearingen had an accomplice. “Nothing will ever convince me of his innocence,” Delmore said.

Federal prosecutors are in no mood for compromise in the Boston Marathon bombing case — at least not yet.

february 5, 2014 (newgazette)

Two brothers allegedly killed three people and wounded more than 260 others by planting bombs last April near the finish line at the Boston Marathon. Now the U.S. Justice Department said it intends to seek the death penalty if the surviving brother is convicted.

Given the sickening nature of the crime, the Justice Department decision in this high-profile case is completely understandable, even laudable. However, it’s still a long way to the execution chamber for Dzhokhar Tsarnaev, who was 19 when he was arrested shortly after the bombings.

His 26-year-old brother and alleged co-conspirator, Tamerlin Tsarnaev, was killed in a shoot-out with police. Dzhokhar Tsarnaev was severely wounded when he engaged officers in gunplay, but survived to face trial.

The big question, however, is whether a trial actually will take place. Authorities say they have collected a mountain of evidence linking the brothers to the bombings, including photographic evidence showing Dzhokhar Tsarnaev placing a backpack believed to be filled with explosives along the marathon route near the finish line.

Given the evidentiary realities and potential death penalty, defense lawyers can be expected to pursue an agreement that allows him to plead guilty in exchange for a life sentence. That’s how cases like this have played out in the past when the Justice Department has opted to seek the ultimate punishment.

If the case does go to trial, defense lawyers can be expected to argue that the plot was conceived by the older brother and that Dzhokhar Tsarnaev’s life should be spared because of the subordinate role he played.

At the same time, however, the facts indicate that the bombings were carefully planned and carried out, that the aim was to inflict maximum damage on large numbers of innocent people and that Dzhokhar Tsarnaev has not shown any remorse for his actions.

Both Muslims, the Tsarnaevs indicated they were motivated by religious reasons to strike out at America, and they allegedly did so in a way that attracted worldwide attention.

It is unclear when the case might get to trial, but if and when it does, the proceedings will be immeasurably complicated by the legalities surrounding the death penalty. Nonetheless, U.S. Attorney General Eric Holder was correct when he said that “the nature of the conduct at issue and the resultant harm compel this decision.”

FLORIDA – Carlie Brucia’s killer appeals death sentence – Joseph Smith

february 5, 2014 (

Carlie BruciaSARASOTA, Fla. – The man convicted of killing 11-year-old Carlie Brucia in 2004 is appealing his death sentence to Florida’s Supreme Court. 

Joseph Smith was found guilty of the 2004 kidnapping, sexual battery and murder of the young girl in Sarasota County.  Smith’s attorney claims a number of errors in his trial led to his death sentence.

Florida’s Supreme Court judges will hear the argument Wednesday.  Smith’s appeal requests a new trial or penalty phase.

This is the second appeal for Smith, who is currently on death row in a Tallahassee prison



Carlie Brucia

With 132 Death Row Inmates Readied for Execution, Lawyers Contest Fast-Track Law Before Florida Justices

February 4, 2014 (

A new law intended to speed up executions did little to change the status quo, an attorney representing the state told the Florida Supreme Court on Tuesday.

But a lawyer representing Death Row inmates argued that the “Timely Justice Act” is premised on a faulty list that violates the constitutionally protected separation of powers as well as inmates’ rights to due process.

More than 150 lawyers and Death Row inmates are challenging the law, signed by Gov. Rick Scott in June.

The law requires the Supreme Court clerk to give the governor a certified list of Death Row inmates whose initial state and federal appeals have been exhausted. The law orders the governor to sign death warrants for the condemned on the list within 30 days and to direct the warden to schedule their executions within 180 days — but only once the executive clemency process has been completed. Scott and his lawyers maintain that the clemency process ends when the governor signs a warrant.

In October, then-Supreme Court Clerk Tom Hall certified to Scott an initial list of 132 inmates who are at least partially “warrant ready” under the requirements of the law.

Scott has signed four death warrants since the law went into effect. Prior to that, Scott ordered nine executions since taking office in 2011.

Marty McClain, who represented the lawyers and inmates during oral arguments before the court on Tuesday morning, said the “warrant ready” list was flawed and included some Death Row convicts whose litigation was still pending.

But Assistant Attorney General Carol Dittmar told the justices that “the list is just to provide for information purposes” and did not change the process by which warrants are signed by the governor. Lawmakers who sponsored the legislation said it was intended to shorten the time between conviction and execution, which now is longer than two decades.

“It seems that the argument being made is that the Timely Justice Act was all for show and didn’t actually change anything,” McClain argued. “Certainly that was not what was expressed by the Legislature at the time. They meant to make changes.”

Some of the justices took issue with McClain’s argument that the Legislature had encroached on their power by forcing their administrator to generate the list.

Justice R. Fred Lewis said he found “difficult to understand why it’s unconstitutional for this court to give information” because that is “very natural and normal” within court operations.

Justice Barbara Pariente suggested that, although “we may not all agree that this is the best policy,” the court could add more information to the list and give lawyers representing Death Row inmates the chance to show why their clients should not be included on it before sending it to the governor.

And she pointed out that there is nothing in the new law that prohibits the court from issuing a stay once a warrant has been signed, pointing to the case of Ray Swafford, whose execution was halted by the court hours before he was scheduled to be put to death in 1990. Swafford, who was deemed “warrant ready” by Hall in October, has spent 28 years on Death Row for the abduction, rape and murder of a gas station attendant in Volusia County.

In November, the Florida high court vacated Swafford’s sentence and ordered a new trial based on new DNA evidence. But McClain said the Swafford case was a perfect example why the law is problematic.

Swafford had at least five appeals before the court ordered a new trial in the fall, McClain pointed out.

“Twenty-one years after the conviction, the information develops. He could have been executed in 1990,” McClain said.

MISSOURI – Death row inmate appeals over police beating – Reginald Clemons

February 5, 2014

JEFFERSON CITYAn attorney for a Missouri man who has been on death row for two decades asked the state Supreme Court on Tuesday to overturn his conviction, asserting that prosecutors suppressed evidence indicating he may have been beaten into confessing.

Reginald Clemons is one of four people who were convicted or pleaded guilty to the 1991 deaths of sisters Julie and Robin Kerry, who prosecutors say were shoved off a St. Louis bridge into the Mississippi River after being raped.

Clemons was scheduled to die by lethal injection in June 2009. But a federal appeals court blocked the execution, and the state Supreme Court then appointed a special judge to investigate Clemons’ claims that he was wrongly convicted.

After a lengthy legal process, Judge Michael Manners issued a report last year concluding that prosecutors suppressed evidence that police may have beaten Clemons while questioning him.

Manners noted that former bail investigator Warren Weeks came forward in 2012 to say he had observed a bump the size of a golf ball or baseball on Clemons’ cheek a few hours after his police interview. Weeks had recorded that on a form at the time, but Manners said it was crossed out by someone on behalf of the state’s prosecution.

Manners wrote in his report that, had Weeks’ testimony been provided to Clemons’ attorneys, it “may have resulted” in a trial court ruling that Clemons’ confession could not be used at his trial.

The arguments before the Supreme Court on Tuesday focused on whether that would have created “a reasonable probability” that Clemons would not have been convicted.

Clemons’ attorney, Joshua Levine of New York, argued that a new trial was necessary because the confession was a critical piece of evidence.

“It’s a somewhat offensive proposition, the notion that a physically coerced confession that is the centerpiece of the state’s case could somehow not be something that results in a new trial for a defendant,” Levine told the Supreme Court. “Give Mr. Clemons what he’s been looking for all these years, which is just a fair trial.”

Clemons, who now is 43, was 19 at the time of the crimes. His parents and a busload of supporters traveled from the St. Louis area to watch Tuesday’s Supreme Court arguments.

“The whole trial was based on a lie, and based on a false confession,” said Maxine Johnson, who described herself as a “prayer warrior” for Clemons.


Basso went quietly enough. When asked for a final statement, she said “No, sir,” with a tearful look in her eyes. She reportedly looked to a couple of friends positioned behind a window and “mouthed a brief word to them and nodded.” As the drug began to take hold, she began to snore deeply; the snoring slowed and eventually halted and, eleven minutes after the injection, she was declared dead.

*Last Meal: Last meal requests no longer allowed.

Execution Watch with Ray Hill
can be heard on KPFT 90.1 FM,
in Galveston at 89.5 and Livingston at 90.3,
as well as on the net here
from 6:00 PM CT to 7:00 PM CT
on any day Texas executes a prisoner.

filed  february 4 : 5th circuit appeal  pdf

February 5, 2014

HUNTSVILLE, Texas (AP) — A woman convicted of torturing and killing a mentally impaired man she lured to Texas with the promise of marriage was scheduled to be executed Wednesday in a rare case of a female death-row inmate.

If 59-year-old Suzanne Basso is lethally injected as scheduled, the New York native would be only the 14th woman executed in the U.S. since the Supreme Court allowed capital punishment to resume in 1976. By comparison, almost 1,400 men have been put to death.

Texas, the nation’s busiest death-penalty state, has executed four women and 505 men.

Basso was sentenced to death for the 1998 slaying of 59-year-old Louis “Buddy” Musso, whose battered and lacerated body, washed with bleach and scoured with a wire brush, was found in a ditch outside Houston. Prosecutors said Basso had made herself the beneficiary of Musso’s insurance policies and took over his Social Security benefits after luring him from New Jersey.

The 5th U.S. Circuit Court of Appeals refused to halt the execution in a ruling Tuesday, meaning the U.S. Supreme Court is likely her last hope. A state judge ruled last month that Basso had a history of fabricating stories about herself, seeking attention and manipulating psychological tests.

Leading up to her trial, Basso’s court appearances were marked by claims of blindness and paralysis, and speech mimicking a little girl.

PAMPA-TX -Testimony ends in Hank Skinner’s DNA hearing

february 5, 2014

PAMPA — A Texas Department of Public Safety expert testified Tuesday that genetic material found on a knife at the scene of a 1993 triple homicide was consistent with Hank Skinner’s DNA profile, but the death row inmate’s defense team maintains that another man killed the family.

Georgette Oden, an assistant attorney general, quizzed DPS expert Brent Hester about a battery of DNA testing results during an evidentiary hearing at the Gray County courthouse.

Testimony ended Tuesday in the two-day hearing, but attorneys for both sides are expected to submit further briefs to District Judge Steven Emmert after court transcripts are completed.

The hearing focused on whether it is “reasonably probable” that Skinner, now 51, would have been acquitted if all DNA evidence in the case had been presented at his 1995 trial, according to court records.

Skinner was convicted of capital murder and sentenced to die in the slayings of Twila Jean Busby, 40, and her sons — 22- year-old Elwin “Scooter” Caler and 20-year-old Randy Busby.

Skinner has claimed he was too intoxicated to have slain the Busbys because he drank vodka and took codeine on the night of the killings.

After the Texas Court of Criminal Appeals halted Skinner’s execution three times due to changing post-conviction law, prosecutors agreed to allow DNA testing, and both sides now have received the results.

Hester, a DPS analyst from the Lubbock crime lab, testified Tuesday that genetic material recovered from the blade of a knife found on the front porch of the victims’ home could be linked to Skinner. Forensic tests on the knife blade, he said, proved the presence of blood on the weapon, and the material found on the knife contained DNA traces from Skinner, Caler and Busby.

“We do not say it was that person’s DNA,” Hester said of how DPS interprets DNA results recovered from a crime scene. “They are not consistent solely with him, but they are consistent with him being a possible contributor.”

Hester also testified that some DNA recovered from the crime scene was contaminated with his DNA and that of a former court reporter who handled evidence in the case. The longtime forensic scientist also testified that some genetic material recovered from a carpet stain, door handles in the home and a door frame could be tied to Skinner.

Hester also said DNA from an unknown individual also was located in the carpet stain, which was in a bedroom where the two male victims were found. Hester said that genetic material could have been deposited when the carpet was originally laid and could have come from nearly anyone who visited the Busby home at 804 E. Campbell St. in Pampa.

Robert Owen, Skinner’s attorney, said after the hearing that testimony showed minute traces of DNA from an unknown person and Twila Busby’s blood had been found on a dish towel that had been left in a plastic bag at the crime scene.

Owen also said the prosecution has claimed that Skinner stabbed Randy Busby in the back while he lay on his bunk bed, but Owen said testimony presented during the hearing casts doubt on the state’s theory.

“If Mr. Skinner stabbed Randy Busby in the manner claimed by the state, Mr. Skinner’s blood should have been on the blanket of Randy’s bed. It was not. If Mr. Skinner’s hands were covered with the victims’ blood when he staggered out of the house, their blood should have been mixed with his on the doorknobs he touched. It was not,” Owen said in a statement.

Owen said a state expert’s testimony also indicated that three of four hairs found in Twila Busby’s hand — hairs the defense said contain DNA consistent with a maternal relative of the victims — were “visually dissimilar” to the victim’s own hair. That testimony, he said, supports the defense team’s conclusion that Robert Donnell, Twila Busby’s now-deceased uncle, killed the Pampa family.

“The state presented no compelling evidence that the hairs could have come from another maternal relative. In fact, Ms. Busby’s mother stated under oath before Mr. Skinner’s trial that she had not been inside the house in the preceding four months,” Owen said in a statement.

Owen also said he was disappointed that Emmert did not allow testimony from a key witness about a jacket found at the crime scene. The witness was prepared to testify the now-missing jacket belonged to Donnell.

“At the DNA hearing, Mr. Skinner sought to present testimony from a witness who can positively identify the jacket as Donnell’s, and to have his DNA expert explain how testing could have confirmed Donnell’s DNA on the jacket,” Owen said in a statement. “We respectfully disagree with this decision. In our view, this evidence is at the center of the case. It shows why a jury that heard all the evidence, including DNA results, would have harbored a reasonable doubt about Mr. Skinner’s guilt.”

Owen also noted that much of the DNA evidence gathered in the case was mishandled, contaminated or lost.

Owen indicated in his statement that “doubts about Hank Skinner’s guilt are far too great to allow his execution to proceed, particularly where the state’s utter failure to safeguard key pieces of evidence may make it impossible to resolve those questions conclusively.”

(Source: Amarillo Globe News)

Condemned South Bay killer gets off California’s death row – Miguel Bacigalupo

February 4, 2014 (timesheraldonline)

A condemned Santa Clara County killer has been sprung from death row after nearly three decades, spared the possibility of execution because prosecutorial misconduct was found to have marred his 1987 trial.

The District Attorney’s Office on Tuesday notified a judge that it will not retry the penalty phase of Miguel Bacigalupo’s murder case, satisfied he will spend the rest of his life in prison without the possibility of parole unless he can overturn his murder convictions in further appeals.

In an unusual ruling, the California Supreme Court in 2012 scrapped Bacigalupo’s death sentence, finding that the prosecution’s failure to turn over key evidence tainted his 1987 trial. The Supreme Court left intact Bacigalupo’s convictions for murdering two brothers in a San Jose jewelry store in 1983, but concluded the misconduct could have tarnished the jury’s decision to recommend the death penalty.

District Attorney Jeff Rosen could have retried the penalty phase, but opted for a life sentence instead of pursuing another trial so many years after the crime.

“I decided, in the interests of justice, not to retry the penalty phase because … it is unlikely that a jury would return a death verdict more than 30 years after these murders,” Rosen said in a statement.

The Supreme Court found that the lead prosecutor in the original case — Joyce Allego, who later became a judge and retired from the bench last year — and her lead investigator did not reveal crucial evidence to the defense that a Colombian drug cartel was heavily involved in the murders. The evidence was crucial to Bacigalupo’s trial defense.

Robert Bryan, Bacigalupo’s lawyer, said Tuesday he is pressing forward with an appeal in federal court to overturn the murder convictions based on the same misconduct.

“The system worked,” Bryan said of the DA’s decision to drop the death penalty. “But the system only worked after sputtering, kicking and growling.”

The lengthy legal battle stems from Bacigalupo’s conviction for killing Jose Luis Guerrero and Orestes Guerrero, owners of a jewelry store on The Alameda. At trial, Allegro argued that Bacigalupo shot the brothers in a basic jewelry heist, mocking his claim that the Colombian mafia ordered him the carry out the murders or risk the death of his family.

But evidence unearthed in the ensuing decades suggested that the prosecution team, particularly lead investigator Sandra Williams, had strong information from a confidential informant that supported Bacigalupo’s defense. And that material was never turned over to defense lawyers at trial.

Bacigalupo was unlikely to face execution soon. California has not had an execution in eight years as a result of legal battles over its lethal injection method, and none are expected at least in the next year on a death row with more than 740 inmates.

Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at