death penalty news—-TEXAS

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

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

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

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

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

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

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,

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

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

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

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

(source: Brownsville Herald)