DNA

Defense lawyers: Skinner won’t appear in Pampa

31.01.2014

Hank Skinner, the Texas death-row inmate convicted of murdering his live-in girlfriend, Twila Busby, and her sons, Randy and Elwin “Scooter” Caler, will not be attending an evidentiary hearing scheduled in Pampa Monday and Tuesday.

An employee who works for Skinner’s defense attorneys, Douglas Robinson and Robert Owen, told The Pampa News that both the state and defense attorneys will offer witnesses and other evidence, such as laboratory reports, to show what results were produced by the DNA testing that has been performed in Skinner’s case over the past 18 months. The attorneys will try to argue about what inferences can be drawn from those test results, she said.

A series of tests on DNA taken from the crime scene have been performed since June 2012, two by a Texas Department of Safety crime lab in Lubbock and one by an independent laboratory in Virginia.

The Texas Attorney General’s Office, who is presenting the state’s case to the court, claims the DNA tests overwhelmingly show that evidence collected at the crime scene consistently shows that Skinner is guilty of strangling and bludgeoning Busby in the living room of her home on New Year’s Eve 1993.

The defense attorneys claim the DNA tests performed at the Virginia lab point to Robert Donnell, Twila Busby’s deceased uncle, as the real killer in the triple homicide. The attorneys say it is well known that Donnell was making unwelcome advances to Busby on the night she was killed.

Judge Steven R. Emmert of the 31st District will not issue a definitive ruling at the conclusion of the hearing, the employee said.

Instead, the parties will have an opportunity to submit written arguments in late February, and the judge will issue a definitive ruling after considering those arguments.

A ruling in Skinner’s favor in this proceeding would not automatically reverse his conviction.

(Source: The Pampa News) #deathpenalty #hankskinner

Wrongly imprisoned Tulsa man declared innocent, eligible to seek compensation from state

A man who spent some 16 years behind bars on now-nullified burglary and robbery convictions has made a sufficient showing of “actual innocence” that he can seek to recover financially from the state of Oklahoma, a Tulsa County judge determined Tuesday.

Tulsa County District Judge William Kellough found that Sedrick Courtney “has made a prima facie showing of actual innocence for the purpose of initiating a claim pursuant to the Oklahoma Governmental Tort Claim Act.”

The most Courtney could recover through the state’s compensation process for wrongfully convicted people is $175,000, lawyers say.

Earlier this month, the state Supreme Court ruled that Kellough had erred previously in denying Courtney a “threshold determination of actual innocence” in a post-conviction relief proceeding.


CLEARED
Sedrick Courtney: He served 16 years in prison for crimes he didn’t commit.

Kellough also erred in ruling that Courtney did not present “clear and convincing evidence of his actual innocence in the face of the exonerating scientific evidence that supported the vacation of the criminal conviction,” according to the high court’s order.

Courtney, now 41, had been found guilty in a 1995 case in which two masked intruders robbed a woman at her Tulsa apartment. He was sentenced to 60 years in prison.

The victim identified Courtney – who denied being one of the intruders, denied any involvement and had alibi witnesses.

Results from DNA testing available at the time were inconclusive, but more recent DNA tests of numerous hairs found in ski masks excluded Courtney as a possible donor of the hairs, court filings show.

The Innocence Project, an organization that uses DNA evidence in an effort to get wrongfully convicted people exonerated, took on the case while Courtney was in prison.

Courtney, now 41, was released from prison on parole in 2011.

In July 2012, Kellough granted post-conviction relief based on the newly discovered evidence – the new DNA testing results. The judge vacated Courtney’s convictions for robbery and burglary, with the agreement of District Attorney Tim Harris.

Kellough declined then to make any finding of actual innocence and indicated that Courtney did not establish by “clear and convincing” evidence that he did not commit the crime.

In September, Kellough ordered the dismissal of the robbery-burglary charges.

An appeal challenging Kellough’s ruling on the actual innocence issue was initiated in the state Supreme Court in October.

According to the Supreme Court, a finding of actual innocence is necessary under Oklahoma law for Courtney to recover money damages based on a wrongful conviction.

Individuals who are convicted and imprisoned for crimes they did not commit can apply for as much as $175,000 in compensation from the state under legislation that was signed into law by then-Gov. Brad Henry in 2003.

A year earlier, Arvin McGee was exonerated by DNA evidence in an unrelated Tulsa County kidnapping and rape case.

A Tulsa federal jury awarded McGee $14 million from the city of Tulsa in 2006 – $1 million for each year he served in prison – but a settlement was reached after the verdict for the city to pay a total of $12.5 million.

Courtney’s compensation could be resolved through the state’s risk-management claims process, but it could be taken to trial, one of Courtney’s attorneys, Richard O’Carroll, has said previously.

Death row inmate Willie Manning granted DNA testing

 

Jul. 25, 2013

 

The Mississippi Supreme Court has given death row inmate Willie Jerome Manning the chance to argue before a judge for DNA and fingerprint testing that he alleges will show him innocent in the deaths of two college students.

The high court on Thursday gave Manning 60 days to file a brief in Oktibbeha County Circuit Court, where he was convicted, to support his motion for DNA testing and fingerprint analysis.

The order reversed an earlier decision in which the Supreme Court ruled 5-4 against Manning’s request for DNA testing.

Manning argues that technological strides in the past two decades in DNA testing could lead to proof that he is innocent of killing two Mississippi State University students in 1992.

The Supreme Court had stopped Manning’s execution on May 7 so it could further review his arguments.

The bodies of Jon Steckler and Tiffany Miller were found in rural Oktibbeha County in December 1992. Manning, now 44, was convicted in 1994 and sentenced to death. Prosecutors said Manning was arrested after he tried to sell some items belonging to the victims.

Manning’s efforts to stop his execution were supported by the U.S. Justice Department. The department had said there were errors in FBI agents’ testimony about ballistics tests and hair analysis in the case.

The FBI said its microscopic analysis of evidence, particularly of hair samples found in the car of one of the victims, contained erroneous statements. The FBI also said there was incorrect testimony related to tests on bullets in the case.

The FBI has offered to conduct the DNA testing.

Manning’s lawyers said in filings with the Mississippi Supreme Court that the execution should be blocked based on the Justice Department’s disclosures and until further testing could be done.

The Mississippi attorney general’s office rebutted that testing wouldn’t exonerate Manning because the evidence is so overwhelming.

Also Thursday, the state Supreme Court denied Manning’s request for a hearing on the Justice Department’s filings on the reliability of expert testimony. It also denied Manning’s request to have his convictions set aside.

U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors

An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.

The review led to an 11th-hour stay of execution in Mississippi in May.

How accurate is forensic analysis?

Learn more about the reliability of each type of forensic analysis.

DNA

Fingerprint

Handwriting

Polygraph

Firearm evidence

Hair and
fiber

Pattern and impression

Bullet lead composition

Independent scientists critique suspect forensic work

It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions. Those questions will be explored as the review continues.

The discovery of the more than two dozen capital cases promises that the examination could become a factor in the debate over the death penalty. Some opponents have long held that the execution of a person confirmed to be innocent would crystallize doubts about capital punishment. But if DNA or other testing confirms all convictions, it would strengthen proponents’ arguments that the system works.

FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer. The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined. The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).

The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.

At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes.

Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification. However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.

The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework.

Whatever the findings of the review, the initiative is pushing state and local labs to take similar measures.

For instance, the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases, in a state that has executed more defendants than any other since 1982.

Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.

“We didn’t do this to be a model for anyone — other than when there’s a problem, you have to face it, and you have to figure how to fix it, move forward and make sure it doesn’t happen again,” FBI general counsel Andrew Weissmann said. “That tone and approach is set from the very top of this building,” he said, referring to FBI Director Robert S. Mueller III.David Christian “Chris” Hassell, director of the FBI Laboratory, said the review will be used to improve lab training, testimony, audit systems and research, as it has done when previous breakdowns were uncovered. The lab overhauled scientific practices when whistleblowers revealed problems in 1996 and again after an FBI fingerprint misidentification in a high-profile 2003 terrorism case, he said.

“One of the things good scientists do is question their assumptions. No matter what the field, what the discipline, those questions should be up for debate,” Hassell said. “That’s as true in forensics as anything else.”

Advocates for defendants and the wrongly convicted called the undertaking a watershed moment in police and prosecutorial agencies’ willingness to re-open old cases because of scientific errors uncovered by DNA testing.

Peter J. Neufeld, co-founder of the Innocence Project, which supports inmates who seek exoneration through DNA testing, applauded the FBI, calling the review historic and a “major step forward to improve the criminal justice system and the rigor of forensic science in the United States.”

Norman L. Reimer, executive director of the NACDL, also praised the effort, predicting that it would have “an enormous impact on the states” and calling on the defense bar to represent indigent convicts.

“That’s going to be a very big job as this unfolds,” said Reimer, whose group has spent 1,500 hours identifying cases for the second round of review.

Under terms finalized with the groups last month, the Justice Department will notify prosecutors and convicted defendants or defense attorneys if an internal review panel or the two external groups find that FBI examiners “exceeded the limits of science” when they claimed to link crime scene hair to defendants in reports or testimony.

If so, the department will assist the class of prisoners in unprecedented ways, including waiving statutes of limitations and other federal rules that since 1996 have restricted post-conviction appeals. The FBI also will test DNA evidence if sought by a judge or prosecutor.

The review will prioritize capital cases, then cases in which defendants are imprisoned.

Unlike DNA analysis, there is no accepted research on how often hair from different people may appear the same.

The federal inquiry came after the Public Defender Service helped exonerate three D.C. men through DNA testing that showed that three FBI hair examiners contributed to their wrongful convictions for rape or murder in the early 1980s.

The response has been notable for the department and the FBI, which in the past has been accused of overprotecting its agents. Twice since 1996, authorities conducted case reviews largely in secret after the scientific integrity of the FBI Lab was faulted.

Weissmann said that although earlier reviews lawfully gave prosecutors discretion to decide when to turn over potentially exculpatory material to the defense, greater transparency will “lessen skepticism” about the government’s motives. It also will be cheaper, faster and more effective because private parties can help track down decades-old cases.

Scientific errors “are not owned by one side,” he said. “This gives the same information to both sides, and they can litigate it.”

The review terms could have wide repercussions. The FBI is examining more than 21,000 federal and state cases referred to the FBI Lab’s hair unit from 1982 through 1999 — by which time DNA testing of hair was routine — and the bureau has asked for help in finding cases before lab files were computerized in 1985.

Of 15,000 files reviewed to date, the FBI said a hair association was declared in about 2,100 cases. Investigators have contacted police and prosecutors in more than 1,200 of those cases to find out whether hair evidence was used in a conviction, in which case trial transcripts will be sought. However, 400 of those cases have been closed because prosecutors did not respond.

On May 7, Mississippi’s Supreme Court stayed the execution of Willie Jerome Manning for a 1992 double homicide hours before he was set to die by lethal injection.

FBI cases may represent only the tip of the problem.

While the FBI employed 27 hair examiners during the period under review, FBI officials confirmed for the first time this week that records indicate that about 500 people attended one-week hair comparison classes given by FBI examiners between 1979 and 2009. Nearly all of them came from state and local labs.

State and local prosecutors handle more than 95 percent of violent crimes.

In April, the accreditation arm of the American Society of Crime Laboratory Directors declined to order state and local labs to conduct reviews, but issued a public notice recommending that each laboratory evaluate the impact of improper statements on past convictions, reminding them of their ethical obligation to act in case of a potential miscarriage of justice.

FBI Lab officials say they have not been contacted by other labs about their review or who completed the FBI classes.

First US man released by DNA evidence after being on death row celebrates 20th year

june 28, 2013

ANNAPOLIS, Md. — A man who was on Maryland’s death row for a murder he didn’t commit is celebrating the 20th anniversary of his release.

Kirk Bloodsworth is marking the anniversary on Friday, just months after Maryland banned the death penalty.

Bloodsworth, who recently moved from Maryland to Philadelphia to be director of advocacy for Witness to Innocence, was twice convicted of a girl’s 1984 murder. He spent two years on death row following his first trial. A second trial brought another conviction, although he received a life sentence instead of capital punishment.

Bloodsworth was cleared in 1993, becoming the first American freed because of DNA evidence after being convicted in a death penalty case.

Reflecting on his experience, Bloodsworth says: “If it can happen to me, it can happen to anyone.”

Texas death row inmate awaits final judgement – Hank Skinner

June 23, 2013 http://www.france24.com

Hank Skinner escaped execution in 2010 by only 20 minutes after a dramatic 11th-hour reprieve. He now regards this as a miracle.

The 51-year-old, who was convicted in 1995 of the brutal triple murder of his girlfriend, Twila Busby, and her two adult sons, has protested his innocence for years, despite DNA evidence against him.

Haunted by the possibility of execution, the wait has taken a mental toll, says Skinner, who admits that in one sense, death may come as a relief.

“Living under the sentence of death is never off, it’s always on your mind. It’s always sitting on your chest, it’s always on your shoulders and they’re killing people about once a week. It’s so heavy because there’s a pall of death over this place,” he told AFP in an interview.

He tries to paint a picture for outsiders: “If someone kidnaps you and takes you down to the basement and they have jail cells there, six of them. There are six people here and every morning they come down with a gun with six bullets. They point it at you and you hear somebody die right next to you”.

“The first 10 times it happens, you think you’d be glad it’s not you, but after so many times, watching it happen to somebody else, you’d be praying the gun would go off on you.”

Texas prosecutors argue that recently re-examined DNA evidence taken from the crime scene proves Skinner’s guilt.

They point to a knife found caked with his blood, and blood spattering on the walls of a room where two of the killings took place.

Skinner’s legal team counter by insisting the DNA evidence paints only a partial picture of the scene, that Skinner was injured and that questions remain about the disappearance of a bloody jacket worn by Busby’s late uncle.

Skinner points out that the first round of tests showed the presence of a third person’s DNA at the scene whose name has not been determined.

As things stand, barring another twist to his case, Prisoner Number 999-143 is still on death row, at the Polunsky Unit jail in Texas.

But Skinner said he has not given up hope of a final reprieve.

And while he insists he is innocent, he is adamant that even the guilty among his fellow death-row inmates deserve pity.

“I’ve been here 20 years now and they have killed 400 people since I’ve been here,” he says into a telephone sitting behind a reinforced glass divide. The 500th execution is scheduled for Wednesday in nearby Huntsville.

“People don’t realize, they say ‘Oh these guys are monsters’ or whatever. They’re not, they’re just regular people just like me”.

“You walk in the normal world you’d find the same people you find here, they’re just people who made terrible awful mistakes but they can’t be judged by the single worst thing they’ve done in their life.”

During his incarceration, Skinner has married a French wife, the militant anti-death penalty activist Sandrine Ageorges, who regularly visits him.

Skinner longs for a day when he can taste freedom and take Ageorges in his arms.

“The girlfriend that was killed she was the woman of my dreams,” says Skinner. “I have the same thing for Sandrine. You’ve seen love at the first sight, that’s pretty much what it was.

“I definitely see her as my second chance, we think so much alike, it’s amazing. We got married by proxy … when I get out of here we’re gonna have another marriage ceremony where I can be there and I can really kiss her.”

Despite the looming veil of execution, Skinner says he retains a lust for life. “I am a big party person, I like to make love, I like to have a good time, I like to laugh, to tell jokes,” he says.

He regards his 2010 reprieve, when the US Supreme Court stayed his execution in order to consider the question of whether DNA tests not requested by his trial lawyer could be carried out, as a “miracle.”

He vividly recalls his last meal, the journey to the execution chamber, and the realization that he had been spared.

“When they took me over there to kill me … they brought my last meal.

“I ate it all, the whole time I could look right up in bars through this door and there’s the gurney and the microphone hanging there and the witness window. Literally looking at death”.

“Getting in a bus to go to a place you’ve never been, like a different planet. The unknown, I’ve never died before. I don’t know what it’s like. But I know it’s permanent,” he laughs.

“My head was buzzing, and I dropped the phone. I couldn’t hear anything, I thought I was floating. I couldn’t believe it,” he said of the moment when he realized he had escaped execution by a matter of minutes.

Although he holds out hope of winning his freedom, Skinner has revealed the last words he then had thought of: “Before this body is even cold, I will walk again.”

Texas AG: New tests don’t clear death row inmate – HANK SKINNER

November 14, 2012

New DNA testing in the case of a Texas Panhandle man on death row for a New Year’s Eve triple-slaying doesn’t support an alternate theory of the crime, the state attorney general’s office said Wednesday.

Hank Skinner once came within an hour of execution for the 1993 killings of girlfriend Twila Busby and her two grown sons in Pampa, about 50 miles northeast of Amarillo. Now 50, Skinner’s execution has been stayed by the Texas Court of Criminal Appeals. Both his attorney and prosecutors agreed in June to new DNA testing of evidence.

The attorney general’s office filed a court advisory Wednesday that says new testing “does not support Skinner’s claim that an alternative suspect is the real killer.”

Skinner has argued he wasn’t the killer because he was passed out on a couch from a mix of vodka and codeine. The AG’s advisory says traces of Skinner’s DNA were located in blood in the bedroom where one of Busby’s sons, Randy Busby, was found stabbed to death. Prosecutors said his DNA also was matched to blood stains throughout the house.

Skinner attorney Rob Owen objected to Wednesday’s advisory, calling its findings premature. In a statement, Owen said it was “troubling” that the AG’s office submitted a report while testing was still ongoing. The AG’s office says both sides are discussing whether to conduct more tests.

“We will remain unable to draw any strong conclusions about whether the DNA testing has resolved the stubborn questions about Hank Skinner’s guilt or innocence until additional DNA testing has been completed, and the data underlying that DNA testing has been made available to our experts for a detailed review,” Owen said in the statement.

While Skinner’s DNA was found on the handle of a bloody knife on Twila Busby’s front porch, Owen said the handle also had genetic material from two other people: Busby’s other slain son, Elwin Caler, and a third person other than Skinner or the victims. Owen said an unknown person’s DNA also was found on the carpet of the sons’ bedroom.

Skinner has acknowledged he argued with Busby on the night she was killed and that he was inside the house where the victim’s bodies were found. He was found about three hours after the bodies were discovered, hiding in a closet at the home of a woman he knew. Blood from at least two of the victims was found on him.

The attorney general’s office had argued against DNA testing, which Skinner’s trial attorneys did not request, but changed course. The state agreed to allow testing of a list of 40 items, though not a windbreaker jacket Skinner’s advocates consider crucial to establishing an alternate suspect’s guilt.

Justice is debatable in Texas death penalty case – Larry Swearingen

November 12,2012 http://www.dw.de

Larry Swearingen faces imminent execution in Texas for a crime that forensic scientists say he could not have committed. His time is running out.

Larry Swearingen at the visitors center on Death Row (Allen B. Polunksy Unit, Texas)

In his 12 years on death row, Larry Swearingen’s execution date has been set three times. Three times he has known when he will be strapped to a stretcher and put down with drugs: sodium thiobarbital to anesthetize him, pancurium bromide to paralyze his muscles and potassium chloride to stop his heart.

In January 2009, he had written his goodbyes and was on his way to the chamber when the stay of execution came through. “The way I had to look at it was ‘I’m just gonna lay down and go to sleep,'” he said. “I wasn’t gonna grovel. I wasn’t gonna sit there and cry. I can’t be remorseful for a crime I didn’t commit.”

Swearingen lives at the Allan B. Polunsky unit, an hour or so north of Houston, together with around 300 men and women awaiting execution for capital crimes committed in Texas. He is kept in solitary confinement 24 hours a day, in a cell not quite four meters long (13 feet) and a little over two meters wide, with a slit above head height, more a vent than a window.

Swearingen is strikingly calm, his voice rarely rising, even as he complains about the injustice of being locked up for a murder that forensic science shows he cannot have committed. “It’s not easy being here,” he says. “There are men who are hanging themselves, men who are cutting themselves, men sitting in their own feces, men slowly losing their minds. If people think it’s easy they are sadly mistaken.”

supporters of the death penalty argue that the USA’s appeals system is so thorough that no innocent person has ever been executed.

In recent years, that faith has been shaken by a number of high-profile cases. Todd Willingham was executed in Texas for setting the house fire that killed his two young daughters, despite several of the country’s most prominent arson investigators testifying that the blaze almost certainly started by accident. Troy Davis went to the chamber in Georgia for shooting a policeman, despite a lack of DNA evidence and seven out of the nine prosecution witnesses later changing their stories.

Swearingen’s case is different, in that forensic science provides him with an alibi: He cannot have raped and murdered his supposed victim, because he was already in prison when she was killed.

Open-and-shut case?

Melissa Trotter disappeared on December 8, 1998. Swearingen was one of the last people to see her alive, at Montgomery College. Three days later police picked him up on outstanding arrest warrants for minor offences, put him in jail and began to build a case against him.

Trotter’s body was discovered on January 2, 1999, in the Sam Houston National Forest, by hunters looking for a lost gun. At first glance, they thought it was a mannequin, dumped in the woods. She was wearing jeans, but her torso was naked. She had been strangled with one leg of a pair of tights. A search team, with cadaver dogs, had passed within 20 meters of the spot a fortnight earlier and found nothing.

At the autopsy, with the district attorney and two of his sheriffs in the room, Harris County’s chief medical examiner, Dr. Joye Carter, estimated that she had been dead for around 25 days, which meant she had been killed the day she went missing.

When Carter repeated this at the trial, the defense team let it pass unchallenged. Jurors heard that Swearingen had a history of violence towards women, that he had repeatedly lied to police, that hairs forcibly removed from Trotter’s head were recovered from his truck and that the other leg of the pair of tights used to kill her was found in his house.

They were not told that the tights appeared during a fourth police visit to the property, after three prior searches had turned up nothing. The DNA under Trotter’s fingernails, belonging to somebody other than Swearingen, was dismissed as a contaminant – perhaps a drop of blood from a cut in a forensic technician’s hand.

The jury took less than two hours to find Swearingen guilty.

Science vs. the courts

Dr. Stephen Pustilnik, chief medical examiner for nearby Galveston County, says the autopsy results aren’t credible. Although there were signs of decomposition around Trotter’s head, her corpse was in remarkably good condition.

“For many days, where she was found, it was 72 degrees Fahrenheit [22 degrees Celsius],” he said. “If you’re at that temperature for three days, you’re green, bloated and stinky. Her internal organs look beautiful.”

At the morgue, her heart, liver, lungs and spleen were remarkably intact.

Pustilnik said the body could not have been dead for 25 days. Several other forensic scientists called by the defense team have come to the same conclusion. It means that Swearingen could not have killed Trotter, because he was already in jail when she died.

Final hearing

I returned to Montgomery County for Swearingen’s final evidentiary hearing. The case has been going back and forth between Judge Fred Edwards and the Texas Court of Criminal Appeals (TCCA) for years: Each time, Edwards has upheld Swearingen’s conviction and each time the appeals court has granted the defense one more hearing. This was categorically his last.

Swearingen sat with his defense team, feet shackled together, wearing a striped Montgomery County Jail jumpsuit. In the pews on the right, behind the district attorney’s table, Sandy and Charlie Trotter were surrounded by supporters holding pictures of Melissa. They are convinced Swearingen is guilty and need him to be gone, so they can grieve in peace. Sandy handed me a photograph of her daughter, but was too upset to talk.

The benches on the left were empty, apart from a couple of local newspaper reporters and a frail-looking woman taking notes. Pam Martinez, Swearingen’s mother, attended every day of the hearing, even though she had recently had heart surgery for the second time.

“My cardiologist tells me that I need to cut the stress out,” she said. “I would like to cut the stress, but I support my son. He’s my child and I want to protect him.”

‘Innocence doesn’t matter’

This time, too, Judge Edward upheld the conviction. Now the case goes back to the TCCA. If the panel again upholds Swearingen’s conviction, he will have run out of options. His “actual innocence” petition to the Supreme Court has been denied. Any further appeals will be summarily rejected. A new execution date will be set and, barring an unprecedented last-minute pardon, he will be taken to the execution chamber at Huntsville and put down.Swearingen knows his chances are slim. “Under federal law in the United States being innocent does not matter,” he said. “If being innocent makes no difference, this country is no better than Iran or Syria, these third-world countries that kill their own citizens. How can being innocent not matter?”

The TCCA’s ruling is expected in the coming months.

Supreme Court Weighing Genetic Privacy

November 8, 2012 http://www.wired.com

Supreme Court justices are to meet privately Friday to weigh whether it will hear a major genetic privacy case testing whether authorities may take DNA samples from anybody arrested for a serious crime.

The case has wide-ranging implications, as at least 21 states and the federal government have regulations requiring suspects to give a DNA sample upon arrest. In all the states with such laws, DNA saliva samples are catalogued in state and federal crime-fighting databases.

The issue confronts the government’s interest in solving crime, balanced against the constitutional rights of those arrested to be free from government intrusion.

The case before the justices concerns a decision in April of Maryland’s top court, which said it was a breach of the Fourth Amendment right against unreasonable search and seizure to take DNA samples from suspects who have not been convicted.

The Maryland Court of Appeals, that state’s highest court, said that arrestees have a “weighty and reasonable expectation of privacy against warrantless, suspicionless searches” and that expectation is not outweighed by the state’s “purported interest in assuring proper identification” of a suspect.

Maryland prosecutors argued that the mouth swab was no more intrusive than fingerprinting, (.pdf) but the state’s high court said that it “could not turn a blind eye” to what it called a “vast genetic treasure map” (.pdf) that exists in the DNA samples retained by the state.

The court was noting that DNA sampling is much different from compulsory fingerprinting. A fingerprint, for example, reveals nothing more than a person’s identity. But much more can be learned from a DNA sample, which codes a person’s family ties, some health risks and, according to some, can predict apropensity for violence.

In the justices’ Friday conference, they are likely to agree to review the Maryland case, and announce their decision days later. That’s because Chief Justice John Roberts has stayed the Maryland decision pending whether the justices review the case. In the process, he said there was a “fair prospect” (.pdf) the Supreme Court would reverse the decision. If the justices decline the case, the Maryland decision becomes law.

The National District Attorneys Association is urging the Supreme Court to overturn the Maryland decision, saying DNA sampling “serves an important public and governmental interest.” (.pdf)

The group points to the Maryland case at hand, concerning defendant Alonzo King. After being arrested in 2009 on assault charges, a DNA sample he provided linked him to an unsolved 2003 rape conviction. He was later convicted of the sex crime, but the Maryland Court of Appeals reversed, saying his Fourth Amendment rights were breached.

The issue before the justices does not contest the long-held practice of taking DNA samples from convicts. The courts have already upheld DNA sampling of convicted felons, based on the theory that those who are convicted of crimes have fewer privacy rights.

Still, the U.S. Supreme Court has held that when conducting intrusions of the body during an investigation, the police need so-called “exigent circumstances” or a warrant. For example, the fact that alcohol evaporates in the body is an exigent circumstance that provides authorities with the right to draw blood from a suspected drunk driver without a warrant.

Maryland’s law, requiring DNA samples for those arrested for burglary and crimes of violence, is not nearly as harsh as California’s. The Golden State’s statute is among the nation’s strictest, requiring samples for any felony arrest.

A three-judge federal appeals panel has upheld California’s law, although the court is reviewing the issue again with 11 judges.

DNA testing in the United States was first used to convict a suspected Florida rapist in 1987, and has been a routine tool to solve old or so-called cold cases. It has also exonerated convicts and those on death row.

 

OHIO – Court to weigh DNA testing for man given death penalty in 1990 Portage County slaying – TYRONE NOLING

october 15, 2012 http://www.ohio.com/

COLUMBUS: The Ohio Supreme Court plans to hear arguments in the case of a condemned inmate whose attorneys argue DNA testing could help exonerate him.

At issue is the case of death row prisoner Tyrone Noling, convicted in 1996 of fatally shooting an elderly Portage County couple at their home.

The Supreme Court on Monday scheduled a Jan. 8 hearing for arguments from both sides.

Noling has been on death row at the Ohio State Penitentiary since his conviction in the slayings of Bearnhardt and Cora Hartig at their Atwater Township home.

The Hartigs, both 81, were shot multiple times in the chest April 5, 1990, as they sat at their kitchen table, according to the police investigation.

Lawyers for the Ohio Innocence Project want to test a cigarette butt found at the scene against DNA profiles of offenders in a national database, including a convicted killer who was executed.

The state says previous tests have excluded Noling as the smoker of the butt and says new testing would prove nothing.

A lower court judge has twice denied the request.