Jan. 27 TEXAS----impending execution Execution set for Wednesday for convicted killer When a man ranting about voices telling him to kill was picked up by police in Del Rio and taken to a state hospital for a mental evaluation, authorities didn't know he already was being sought for a rampage that left four people dead more than 300 miles away. 2 weeks later, authorities determined the man in the Kerrville State Hospital was Virgil Martinez, a fugitive Houston security guard. Martinez had given them a fake name when he was brought in for mental health treatment that prosecutors said was a ruse to evade police trying to find him. On Wednesday, Martinez, 41, was set to die for the October 1996 fatal shootings of his ex-girlfriend, her 2 small children and a neighbor at a trailer home outside Alvin in Brazoria County, south of Houston. Veronica Fuentes, 27, had been shot 14 times; her 5-year-old son, Joshua, 5 times; his sister, Casandra, 3, 3 times; and John Gomez, 18, 8 times. Gomez had been helping the woman watch her kids. Before dying, he identified the gunman as Fuentes' former boyfriend. Martinez would be the 4th Texas inmate executed this year and the first of two on consecutive nights this week. "Senseless murders," Jerome Aldrich, who was one of the prosecutors at Martinez's 1998 trial, recalled. "The death penalty is very appropriate in these circumstances." David Dow, a University of Houston law professor, said Monday he hoped to get the lethal injection delayed so lawyers can be certain Martinez is competent to be executed. "He seems to us to have some potentially significant mental illness issues," said Dow, who works with the Texas Defender Service, a legal group that represents death row inmates. Don Vernay, a New Mexico lawyer who had been representing Martinez in federal court appeals, argued unsuccessfully that temporal lobe epilepsy suffered by Martinez caused the shooting frenzy. "The problem was, it was a bad crime," Vernay said. Martinez declined to speak with reporters in the weeks preceding his execution date. Just before his sentencing at his trial, Martinez told the court: "God knows my heart. I'm innocent." At trial, Martinez was defended by Jeri Yenne, who later was elected district attorney in Brazoria County. "I don't think it's appropriate for me to comment," she said when asked about the status of the case. "It's been real important for me to maintain my boundaries as district attorney. "I did everything we could from an advocacy perspective," she said of her defense. "We also want to make sure the system properly reviews it. I don't think I should talk about the particulars." In 2004, a federal appeals court ordered a hearing to look into Martinez's claims defense lawyers didn't present enough evidence about his medical condition being responsible for the shootings. Lawyers said pursuing that strategy would have contradicted Martinez's assertion going into the trial that he didn't do the shooting. Witnesses testified they saw Martinez shoot Fuentes in the front yard of the trailer park. Her two children were found dead in their beds, both shot in the head at point-blank range. Gomez, identified as a family friend from Houston, was gunned down as he ran to Fuentes' aid. Prosecutors combined all four slayings into a single capital murder charge. Police concluded a single 9 mm gun fired all the bullets. Police recovered a holster for the gun in Martinez' car and a box designed to house the same caliber weapon in his mother's Houston home, where he lived. The murder weapon, however, never was recovered. The shootings occurred a short time after Fuentes had ended a one- or two-month relationship with Martinez. On Thursday, Texas prisoner Ricardo Ortiz was set to die for the retaliation killing of Gerardo Garcia, 22, a fellow inmate at the El Paso County Jail in 1997. Garcia died of a lethal injection of heroin. Another inmate, Larry Swearingen, was set to die Tuesday but his punishment was stopped on Monday by a federal appeals court so questions about forensic evidence can be resolved. Swearingen was condemned for the 1998 abduction and slaying of Melissa Trotter, 19, a college student in Montgomery County. (source: Associated Press) ************* Court stay in death case It was a relief to see a stay issued in federal court yesterday in the scheduled execution of a Montgomery County man who might have been behind bars when his alleged murder victim was killed. Doubts have lingered over the conviction of Larry Swearingen for months, ever since a medical examiner essentially recanted her pivotal testimony about the probable time of death of the victim, college student Melissa Trotter. Yet state courts have declined to examine the expert's new analysis on its merits, citing a technicality to move the case along. Something's wrong here. A key expert witness says her testimony created the wrong impression, and Texas courts don't come to grips with it? The case against Swearingen was mostly circumstantial. He had a history of abusive behavior toward women. The 19-year-old victim had broken off a date with him shortly before she disappeared in December 1998. He was the last person seen with her, as she left the Montgomery College library. Fibers and hair on his jacket and in his truck linked him to the victim. Trotter was strangled with pantyhose that allegedly matched a piece found at his mobile home. Her body was found 25 days after her disappearance. All too coincidentally, Harris County Medical Examiner Joye Carter testified at trial that the body had lain in the woods about 25 days. That's not what she says now. Based on a closer look at decomposition details in the autopsy report, Dr. Carter filed a sworn statement that the body was exposed outdoors no longer than 2 weeks. Other forensic experts support that finding as well, based on new analysis of insect activity. The belated findings pose a major problem to the prosecution's case, because Swearingen was jailed on unrelated warrants three days after the victim's disappearance and would not have been free at the time of her death. The stay of execution in the case should give the courts time to sort through the new analysis and allow the defense to do new tests on the pantyhose. The medical examiner all but admits she made a mistake in this case. That admission should have obligated Texas courts to call off the execution. There's no margin for error when it comes to Huntsville's death chamber. (source: Editorial, Dallas Morning News) ************* Man in Montgomery County killing gets stay of execution Man convicted of killing Conroe student gets stay of execution Lisa Falkenberg: If no court will listen, does evidence of innocence matter? Lisa Falkenberg: Time running out for man despite forensic evidence (jan. 21) For the second time, accused killer Larry Swearingen won a reprieve the day before he was to be executed by injection. Swearingen, who was convicted of kidnapping, raping and strangling 19-year Melissa Trotter more than a decade ago, was granted a stay of execution by the U.S. Court of Appeals for the 5th Circuit on Monday. He was scheduled to be put to death Tuesday. Swearingen, who has been on death row since 2000, was scheduled to die 2 years ago, but 24 hours before his Jan. 24, 2007 execution date, the Texas Criminal Court of Appeals granted him a stay. Now, after many denied appeals, the federal appeals court has given Swearingen another chance to prove to his innocence. The court, in a unanimous decision, said his due process rights had been violated. The crux of Swearingen's petitions have focused on the time of Trotters death and new insect and pathology evidence that contradicts state evidence. His attorney, James Rytting, says the evidence proves that Swearingen could not have killed Trotter on Dec. 8, 1998, because he was in jail on an unrelated charge. Swearingens latest appeal, filed last week, includes additional new evidence preserved heart tissue from Trotters autopsy which further supports Swearingens innocence, Rytting said. "We're glad that someone has stepped in," Rytting said. "We think this is an extraordinary case of actual innocence. We're hopeful that the federal courts will give the evidence a fair review." The case will now go to a federal district court. Parents' reaction Monday's ruling was another blow to Trotter's parents, Charles and Sandra Trotter, who said they are disappointed. "The whole thing is just hard to comprehend," said Sandra Trotter. "How the federal court can make this ruling. ... It's almost like the federal courts are more concerned about the criminals' rights. What about Melissa's rights?" Montgomery County Assistant District Attorney Marc Brumberger, who handles post-conviction cases, said he is confident the state's case will be upheld in federal district court. Representatives of The Innocence Project, a group that works to exonerate wrongfully convicted people through DNA testing, have been working consultants on Swearingen's federal court appeal. "We're gratified that they stayed the execution," said co-director Barry Scheck. "These are extremely important scientific issues that focus on whether Larry Swearingen is guilty or innocent. It's extremely important that all medical expert testimony be explored thoroughly in the court of law." Trotter disappeared from Montgomery College on Dec. 8, 1998. Witnesses said they last saw her on campus that day with Swearingen. Trotter's body was later discovered on Jan. 2, 1999, in the Sam Houston National Forest in Montgomery County with a piece of pantyhose around her neck. Autopsy findings Prosecutors contend that Trotter was killed on the same day she was abducted, and their evidence was bolstered by former Harris County medical examiner Dr. Joye Carter's autopsy report. She had determined that Trotter's body had been in the woods for 25 days, placing the date of death on Dec. 8. Carter later changed her opinion in 2007, concluding that Trotter's body could not have been left in the woods more than 14 days before her body was discovered. Her reversal came after Rytting found experts, including current Harris County Medical Examiner Dr. Luis Sanchez, who said Trotter died after Dec. 11 and as late as Dec. 18. Their opinions were based on when they say insect infestation of Trotters body occurred. Swearingen was arrested on Dec. 11 and was in jail until his trial. The experts also said Trotter's body and internal organs were too well preserved to had been exposed to the elements for 25 days. Her intact organs would have liquefied, they said. Carter noted in her original autopsy report that she had removed and dissected internal organs. In a signed affidavit, she said if she had been given additional information, her testimony about her autopsy findings would have been consistent with the experts' findings. Rytting has since found another expert, Tarrant County's Deputy Medical Examiner Dr. Lloyd White, who says Trotter's heart tissue the new evidence in the federal appeal shows well-defined cells that could only have come from a body dead less than 2 or 3 days. In granting the stay, the federal appeal court on Monday said Swearingen's due process rights were violated because his trial attorney failed to develop evidence from Trotter's cardiac tissue. The court also agreed that his trial attorney did a poor job in cross-examining Carter on the pathology evidence and that the "state sponsored false and misleading forensic testimony regarding when Trotter's body was left in the forest." These 2 arguments were previously rejected by the state courts. Brumberger said he believes the federal appeals court ruling was based on a misunderstanding of Carter's affidavit. "Dr. Carter stated that in her affidavit that she was not asked about the internal organs during the trial, so she didn't take it into consideration," Brumberger said. "The (federal appeals) court took that to mean the state didnt present the evidence to her. She gave us the information to us. She had the information. "I think this is a misunderstanding that will be cleared up in the federal district court," he said. Brumberger said the state has sought own its own experts to refute the new cardiac tissue evidence. (source: Houston Chronicle) ********************* Court halts Swearingen execution----Forensic pathologists back inmate's claim that he did not kill college student in 1998. A federal appeals court Monday halted tonight's planned execution of Larry Swearingen, giving his lawyers time to present claims that he did not commit the 1998 murder that sent him to death row. 4 forensic pathologists, including the medical examiner who testified against Swearingen at his capital murder trial, now say that Swearingen was in jail when Melissa Trotter, 19, was strangled and left in a national forest near Conroe in East Texas. Without addressing Swearingen's guilt or innocence, the 5th U.S. Circuit Court of Appeals gave him permission to return to federal court to seek a new trial or release from prison. "I'm extraordinarily relieved that the state didn't kill a man who was proven to be absolutely innocent relieved for Mr. Swearingen and for the state," said James Rytting, Swearingen's appellate lawyer. "Montgomery County couldn't even indict him based on the evidence we have provided, let alone prevail in a trial." The Montgomery County district attorney's office, however, will fight to keep Swearingen on death row. Prosecutors say other evidence links him to the crime, including a match between the pantyhose leg found around Trotter's neck and a stocking found in a trash dump next to Swearingen's mobile home. Prosecutors also point to evidence showing that Trotter had been in Swearingen's truck and mobile home and to records from cell phone towers that show Swearingen made calls from near the area where Trotter's body was found. Swearingen's appeal is all about timing: Trotter disappeared from Montgomery County Community College on Dec. 8, 1998. Swearingen, seen with Trotter on the day she disappeared, was jailed Dec. 11 on outstanding traffic warrants. Trotter's body was discovered in the Sam Houston National Forest on Jan. 2, 1999 25 days after she was last seen. The autopsy by Dr. Joye Carter, then chief medical examiner for Harris County, ruled that Trotter had been raped and strangled on the day she disappeared. But 3 forensic pathologists, identified by Swearingen's appellate lawyers, said the condition of Trotter's body showed she had been in the forest for less than 14 days and perhaps as little as two or 3 days. After reviewing the findings, Carter said in a 2007 affidavit that she had made a mistake in her autopsy and now believes Trotter's body was in the forest for less than 2 weeks. According to Carter and the three pathologists, the autopsy found the spleen and pancreas intact, although those organs liquefy within days of death. Bodies also can be expected to lose most of their weight after 25 days in temperatures recorded in the Conroe area at that time, but Trotter's body weighed 105 pounds down only 4 pounds from her living weight. And unlike a body left outside for 25 days, Trotter's showed no sign of bloating, her clothes were unsoiled, and there was limited scavenging by animals in a forest inhabited by feral pigs, vultures and raccoons. In addition, 5 recently discovered slides of heart, lung and nerve tissue from Trotter's autopsy revealed intact red blood cells, though they break down within hours of death, and intact heart cell nuclei, which break down within days. The slides led Dr. Lloyd White, a Tarrant County deputy medical examiner, to conclude that Trotter had been dead for no more than 5 days. Prosecutors disagree, saying slow-growing fungus on Trotter's skin and advanced decomposition around her head and neck support the theory that she had lain in the forest for 25 days. Monday's appellate court decision does not guarantee that Swearingen, a laborer previously convicted of burglary, will be able to present the forensic findings in federal court. Death row inmates are limited to 1 federal appeal unless they meet 2 narrow legal exceptions: the new information must have been unavailable during the 1st appeal, and it must be so convincing that if presented at trial, a reasonable juror would not vote to convict. The federal judge can dismiss the petition if Swearingen fails to satisfy both exceptions, according to the 5th Circuit Court's ruling by Chief Judge Edith Jones and Judges Harold DeMoss Jr. and Jacques Wiener. A concurring statement by Wiener addressed what he termed the elephant in the room that the U.S. Supreme Court has yet to recognize innocence as a ground for halting an execution. Swearingen will have to prove a constitutional right was violated, such as his right to representation by a competent trial lawyer who instead failed to investigate Carter's autopsy results, Wiener noted. He raised "the real possibility" that a federal judge could view the forensic evidence as proof of Swearingen's innocence but still reject the appeal because another right was not violated. The result could spur the circuit court, or even the U.S. Supreme Court, to address innocence as an appellate defense, a question "that has been left unanswered for too long," Wiener said. (source: Austin American-Statesman) **************** Man on death row appeals to federal court A Brownsville man on death row for the 1998 stabbing death of a Brownsville mobile home park manager has filed an appeal in federal court claiming his Sixth Amendment right to a fair trial was violated. In his appeal filed Monday, Ruben Gutierrez raises 13 grounds of concern, including the right to a fair and impartial jury, insufficient evidence and ineffective trial counsel. Gutierrez, 31, remains on death row at the Texas Department of Criminal Justice's Polunsky Unit in Livingston, following his 1999 conviction for killing 85-year-old Escolastica Harrison at Harrison Mobile Home Park on Morningside Road. Authorities said Gutierrez befriended Harrison so he could rob her of some $600,000 in cash, which she hid in her trailer home. According to police statements, Harrison didn't like banks so she kept her money in suitcases. An autopsy report revealed Harrison was stabbed 13 times with 2 different screwdrivers and was also beaten. Gutierrez has repeatedly disputed his involvement in the crime, stating that there was no evidence he directly caused Harrison's death. In his appeal, he also said no evidence was presented that indicated he was in her house at the time she was killed. He also alleges he was denied his Fourteenth Amendment right to equal protection. Gutierrez said Brownsville police coerced multiple statements from him. Gutierrez's capital murder trial was held before 107th State District Judge Benjamin Euresti Jr. A jury found him guilty and sentenced him to death. Although Gutierrez appealed his conviction to the Texas Court of Criminal Appeals, his appeal was denied in 2002, according to court documents. His case had not yet been assigned to a specific federal court in Brownsville. (source: Brownsville Herald) TENNESSEE----impending execution Judge dismisses request to stop upcoming execution A federal judge in Nashville has dismissed a request to stop the upcoming execution of a Tennessee death row inmate. Attorneys for Steve Henley argued that the Feb. 4 execution should be stopped because a federal appeals court is currently considering a challenge of Tennessee's 3-drug lethal injection method. In a ruling issued Monday, U.S. District Court Judge Robert Echols said that Henley waited too long to file a separate lawsuit also challenging the constitutionality of the lethal injection method. Paul Davidson, Henley's attorney, said they plan to appeal Echols' ruling. Henley was convicted of murdering an elderly Jackson County couple in 1985. Last year the U.S. Supreme Court upheld the constitutionality of lethal injection in Kentucky. (source: Associated Press) FLORIDA: Vote for death penalty is 7-5----Jury Urges Execution for Killer; Jamail Hogan was convicted last week in the shooting death of Remesh Desai during an attempted armed robbery In Bartow, a jury recommended Tuesday morning that Jamail Hogan should be executed for fatally shooting a convenience store clerk. Jamail Hogan Jurors spent about 30 minutes deliberating before reaching the narrowest of margins, a 7-5 vote, in favor of imposing the death penalty for the 28-year-old Winter Haven man with a history of robberies. Circuit Judge J. Michael Hunter must give the jury's recommendation "great weight" under Florida law. Lawyers will be able to provide additional information and arguments to the judge at a March 4 hearing. The same jury found Hogan guilty last week of first-degree murder in the death of Remesh Desai and attempted armed robbery. Desai, 44, was shot in the torso during a robbery attempt Dec. 2, 2005, at Bill's Market off U.S. 17 and Bomber Road in Bartow. He died weeks after the shooting from a blood clot. One of Hogan's lawyers, Karen Meeks, said the death penalty is reserved for the "worst of the worst cases." She argued Hogan shouldn't be executed but should be sentenced to life in prison without parole. But prosecutors offered two aggravating circumstances as the legal basis for a death sentence: Desai's murder was committed for financial gain, and Hogan has a history of violent crimes. Hogan has been sentenced to more than 240 years in prison on federal charges related to a series of robberies in late 2005, including the Bill's Market attempted robbery. Both Hogan and his 23-year-old stepbrother, Bryan Smith, have been convicted of taking part in the armed robbery attempt at Bill's Market. In an October trial, a jury acquitted Smith of 1st-degree murder in Desai's death, but found him guilty of taking part in the attempted robbery. Circuit Judge Dennis Maloney sentenced Smith to 15 years in state prison. The stepbrothers are sons of 2 Polk County Sheriff's Office employees, Capt. James Hogan and Lucretia Hogan, a detention deputy. During Monday's penalty phase, Hogan's father took the witness stand to talk about his son's childhood. James Hogan described the rough breakup between himself and Jamail Hogan's mother. A forensic psychologist testified how the acrimony between Jamail Hogan's parents negatively affected him. The expert testified that Jamail Hogan experiences anxiety and depression. Jamail Hogan testified he was home during the shooting and later borrowed Smith's car that evening, but had no idea the murder weapon or other evidence was inside. Hogan was stopped by deputies for speeding hours after the shooting. Inside the car, investigators found the .380-caliber pistol later determined to have fired the bullet that struck Desai. (source: The Ledger) ************************** Opening statements begin in Fla. Turnpike killings In West Palm Beach, the trial of 2 men accused of gunning down a family of 4 on Florida's Turnpike is under way. 28-year-old Jose Luis Escobedo, his 25-year-old wife, Yessica Guerrero Escobedo, and their 2 sons were found dead on Oct. 13, 2006. Authorities say Daniel Troya and Ricardo Sanchez Jr., both 25, were settling a drug dispute with Escobedo when they killed the family. They are charged with armed carjacking resulting in deaths, conspiracy, weapons counts and drug offenses. Openings statements were set to begin Tuesday. Both face the death penalty if convicted. 2 others Danny Varela, 28, and Liana Lopez, 20 also are on trial in the same case for drug conspiracy and weapons charges. They face up to life in prison. All have pleaded not guilty. (source: Associated Press) _______________________________________________ DeathPenalty mailing list DeathPenalty@lists.washlaw.edu http://lists.washlaw.edu/mailman/listinfo/deathpenalty Search the Archives: http://www.mail-archive.com/deathpenalty@lists.washlaw.edu/ ~~~~~~~~~~~~~~~~~~~~~~~~~~~ A free service of WashLaw http://washlaw.edu (785)670.1088 ~~~~~~~~~~~~~~~~~~~~~~~~~~~