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.