Friday, January 30, 2009

News and Updates

Hey everyone,

Our next meeting will be this Sunday, February 1st at 7pm in the Associates Room of the Union. Bring your chalk if you have it and have time to chalk sidewalks afterwards.

Counter Terror with Justice
You guys may have noticed that since Obama got elected he's been doing all kinds of neat stuff like issuing executive orders to ban torture and close Guantanamo. We can do more chalking or work out a campaign on this soon if we want to. You can read more about Amnesty's 100 days campaigns on their home page:

Statewide Conference
In case you haven't heard, we pushed the date for our statewide conference back to April, probably the 18th. I have been communicating with Rosa Clemente, the who was the Cynthia McKinney's Vice Presidential candidate for the Green Party in this last election. I think she would be a really good speaker, she is available for the date and she is interested in coming to OU. The problem is we don't have any money from the Speaker's Bureau to pay her way here. So, if you know of a department here on campus, an organization, or anyone who would contribute to funding this, or if you want to help fill out the applications, please let me know ASAP. If we're going to get her here we need to finalize it in the next week. If you want to know more about her, check out her (her website doesn't seem to be working). If you have any other suggestions for speakers, workshops, or faculty who should be involved, let me know.

Andrews Park has been reserved so we have officially set a date for Groovefest for April 26th. At the last meeting we set tentative due dates for artwork and band submissions (Friday, March 6th) and emcee tryouts (Saturday, March 7th). This Sunday we need to finalize the details on our call for artists so we can get our publicity and fundraising going.

Valentine's Day Fundraiser
At our last couple of meetings we have been brainstorming about a Valentine's Day fundraiser to get donations toward AI and our group funds (the latter of which will go mainly to Groovefest and our Statewide Conference in April). So far we have come up with a bake-sale/art show/craft fair/yard sale with music and party pics. I think if we get even a third of that to happen we should be able to make some money and have a great time. But, we need to finalize who/what/when on Sunday.

Amnesty has researchers currently on the ground in Gaza. You can keep up to date with their findings on the Amnesty USA home page here:

Please refer to this link to get information on the crisis in Gaza, recommended actions, and available resources:

Urgent Action
Larry Swearingen was granted a stay of execution by the US Court of Appeals this week. We don't need to take any further action right now. For the details, you can see the UA update at the bottom of this email.

That's all for now, as always, call me if you have any questions.

See you soon!

27 January 2009

Further information on UA 17/09 (21 January 2009) – Death penalty / Legal concern

USA (Texas) Larry Ray Swearingen (m), white, aged 37

Larry Swearingen was granted a stay of execution on 26 January 2009 by a three-judge panel of the US Court of Appeals for the Fifth Circuit, the federal court one level below the US Supreme Court with jurisdiction over Texas cases. He was scheduled to be put to death in Texas on the evening of 27 January 2009.

Larry Swearingen was sentenced to death in 2000 for the murder of Melissa Trotter in 1998. Melissa Trotter went missing on 8 December 1998. Larry Swearingen was arrested three days later, and has been incarcerated ever since. The body of Melissa Trotter was found in a forest on 2 January 1999. Larry Swearingen was tried for her murder, and sentenced to death.

He maintains his innocence of the murder. Several forensic experts have provided statements and testimony that support his claim. One of these experts, Dr Joye Carter, is the former Chief Medical Examiner of Harris County in Texas who performed the autopsy of Melissa Trotter and testified at Larry Swearingen’s trial that in her opinion, Melissa Trotter had died 25 days before her body was found. In an affidavit signed in 2007, Dr Carter stated that she had looked again at the case and changed her opinion. She concluded that Melissa Trotter’s body had been left in the forest within two weeks of it being found.
If accurate, this would mean that the body was dumped at a time when Larry Swearingen was
already in custody. Other experts have stated that the body may have been left in the
woods only a few days before it was found (see original UA).

The Fifth Circuit panel did not address the merits of Larry Swearingen’s innocence claims,
but only considered whether they were sufficient to overcome the obstacles under federal
law preventing the court from authorizing the filing of a successive habeas corpus petition
in the lower District Court. Under this federal statute, the prisoner must show that "(i)
the factual predicate for the claim could not have been discovered previously through the
exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable fact-finder would have found the
applicant guilty of the underlying offense."

The Fifth Circuit said that there were "two independent gates" through which a motion to
file a successive petition must pass before the merits of the prisoner’s claim will be
addressed. First, the Fifth Circuit would have to determine whether the motion made a
prima facie (on first sight) case that the above requirements of the federal statute were
met, including that there is "a sufficient showing of possible merit to warrant a fuller
exploration by the District Court." Secondly, once the case was remanded to the District
Court, the latter would also have to determine whether the requirements of the federal
statute had been met before it could address the merits of the successive petition.

The Fifth Circuit court held that "given the importance of Dr Carter’s expert testimony to
the State’s case, we find that Swearingen has made a prima facie showing that but for the
constitutional error of the State sponsoring the false testimony of Dr Carter, no
reasonable juror could find guilt beyond a reasonable doubt." The constitutional
precedent on this issue is the 1972 Supreme Court ruling in Giglio v. United States. The
Fifth Circuit also found that Larry Swearingen had made a prime facie case that his legal
representation at trial had been constitutionally deficient, including in cross-examining
Dr Carter. Here the precedent is Strickland v. Washington (1984). The Fifth Circuit panel
therefore authorized Larry Swearingen to file a successive habeas corpus petition in the
District Court limited to these issues. The court stressed that "this grant is
tentative" in that the District Court "must dismiss" the petition, "without reaching
the merits," if that court were to find that Swearingen had not satisfied the federal
statutory requirements relating to successive petitions.

One of the three Fifth Circuit judges wrote a separate, concurring opinion. He said that
he wished to address "the elephant that I perceive in the corner of this room: actual
innocence." Judge Jacques Wiener continued: "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 stand-alone claims of actual innocence as a constitutional ground for
prohibiting imposition of the death penalty." Judge Wiener noted, however, that the
Supreme Court had made certain statements that "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."

Judge Wiener said that could foresee the "real possibility" that the District Court might
interpret the expert forensic opinion as clear and convincing evidence that Larry
Swearingen could not possibly have killed Melissa Trotter and yet still "find it
impossible to force the actual-innocence camel through the eye of either the Giglio or
Strickland needle, and thus have no choice but to deny habeas relief to an actually
innocent person." As such, Judge Wiener suggested, Swearingen’s predicament might be
"the very case" for the full Fifth Circuit Court or the US Supreme Court to "recognize
actual innocence as a ground for federal habeas relief." He concluded that "to me, this
question is a brooding omnipresence in capital habeas jurisprudence that has been left
unanswered for too long."

There have been five executions in the USA this year, three of them in Texas. Since
executions resumed in 1977, there have been 1,141 executions in the USA, 426 of them in
Texas. Among those who have been put to death by the state are people whose guilt was in
doubt to the end. Since 1977, more than 100 people have been released from death rows in
the USA on grounds of innocence. The average time between being sentenced to death and
exoneration in these cases was nearly 10 years.

No further action by the UA Network is requested at present.
Many thanks to all who sent appeals.

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