Texas death row inmate Larry Swearingen was unan­i­mous­ly grant­ed a stay one day before his sched­uled exe­cu­tion by the U.S. Court of Appeals for the 5th Circuit on January 26. ​“We think this is an extra­or­di­nary case of actu­al inno­cence,” said Swearingen’s attor­ney James Rytting. ​“We’re hope­ful that the fed­er­al courts will give the evi­dence a fair review.” Judge Jacques Wiener, who con­curred in the Circuit Court’s opin­ion and stay, under­lined the poten­tial impor­tance of the case. He said there was a ​“real pos­si­bil­i­ty” that the District Court, when it reviews Swearingen’s evi­dence, could con­clude that he is inno­cent. Moreover, the judge said, “[T]he Supreme Court of the United States has nev­er express­ly rec­og­nized actu­al inno­cence as a basis for habeas cor­pus relief in a death penal­ty case.… [but] this might be the very case .…” He added, ​“To me, this ques­tion is a brood­ing omnipres­ence in cap­i­tal habeas jurispru­dence that has been left unan­swered for too long.”

The for­mal grounds for the stay was to give the low­er District Court an oppor­tu­ni­ty to review Swearingen’s suc­ces­sor habeas peti­tion rais­ing claims of pros­e­cu­to­r­i­al mis­con­duct and inef­fec­tive rep­re­sen­ta­tion that he may not have been able to raise before. 

(R. Lee, ​“Man in Montgomery County killing gets stay of exe­cu­tion,” Houston Chronicle, January 26, 2008). (In re Swearingen, No. 09 – 20024 (5th Cir. Jan. 26, 2009)). See Innocence and Arbitrariness.

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