A column by Lisa Falkenberg in today’s Houston Chronicle digs into the case of Texas death row inmate Larry Swearingen – who is seeking DNA testing that could prove his innocence or guilt – and asks if Texas has an official position on the execution of innocent people.
Falkenberg writes that in her search for an answer, she read the oral arguments before the U.S. Supreme Court in Herrera v. Collins, and was "appalled.”
The State of Texas argued before the nation’s highest court that it was OK to execute an innocent person, as long as he got a fair trial.
The most chilling exchange came when a justice asked the assistant attorney general arguing for Texas, Margaret Griffey, whether the state would maintain that same position if video evidence conclusively proved the person didn’t commit the crime. The justice wanted to know: Is there a violation of that person’s constitutional rights if he were executed anyway because no court would hear the video evidence?
“No, Your Honor, there is not,” Griffey replied.
Falkenberg also learned, however, that this is no longer the state’s official stance.
(Attorney General) spokesman Jerry Strickland provided an unexpected response. Texas, it seems, has changed its mind.
“No,” he wrote in an e-mail. “It would not be permissible for the state to execute a person whom the state knew to be innocent.” In a later e-mail, he said such an execution “would constitute a miscarriage of justice.”
…The question remained: was Strickland articulating a true shift in Texas’ approach to innocence claims, that actual innocence actually matters, or just feeding a line to a newspaper columnist?
The proof, I guess, is in the pleadings.
As recently as last month, the AG’s lawyers answered Swearingen’s compelling claim of actual innocence with the same procedural roadblocks it’s employed for years.
Among the reasons the AG’s office argued that the 5th Circuit shouldn’t consider the merits of Swearingen’s claim: It was past deadline.
And, this late in the game, in federal court, being truly innocent isn’t a good enough reason to ask not to be executed.
Read the full column here and join the discussion in the Chronicle’s comments section
. (Houston Chronicle, 02/03/09)