Death Penalty Watch: Larry Ray Swearingen [Dead] & Gary Ray Bowles [Dead]

Also SCOTUS:  Following up an earlier order by Roberts as circuit justice, SCOTUS voted to hold until after Labor Day, for further briefing, a case involving double jeopardy. The net result is a short term win for the government.  If a cert. petition is not filed by that time, the stay would end. If one was, it would remain in place until SCOTUS took further action.  Why this case was singled out among various others was not (as usual) explained.

(I wrote the core of this before the two execution dates and will add final results last.  I posted it after the executions or other action occurs. Again, it is unclear to me why the final SCOTUS orders come basically at the last minute.  A short window such as 48hr can be imagined to prep after a final order there unless in a very rare case where something truly changes at the last minute such as changing the procedures or something.  We already had one execution delayed because of cutting things so close.) 

On Dec. 8, 1998, Melissa Trotter, 19, disappeared from what is now the Lone Star College campus near The Woodlands. Swearingen was arrested on outstanding traffic warrants on Dec. 11. Prosecutors said he initially became a suspect because surveillance video showed Swearingen talking with Trotter at the North Shore Marina two days before her disappearance, when the pair made lunch plans.

A one victim murder has to be significantly bad for it to be a clear-cut case of "worse of the worst," a rough summary of what is deemed as the constitutional guideline.  Many still would think someone "sentenced to die for the kidnapping, rape and strangulation" was rightly so.  Also, "in the punishment phase of his trial, evidence was introduced that Swearingen had committed two unadjudicated rapes, one unadjudicated assault on his ex-wife, and that while awaiting trial, he had tried to escape."

We have another extended -- about twenty years -- time on death row. But, it also is a case where there were numerous appeals and delays in general to push back the execution.  The details in such case repeatedly is a mixture of active defendant litigation but also both some reasonable grounds and state action that helps delay things.  I don't know the balance in this specific case.  We also (see here and a paywall blocked Washington Post article) what might be a credible claim of innocence or at least reasonable doubt to warrant not executing him after twenty years.

Texas is scheduled to execute Swearingen on Wednesday; he would be forty-eight, committing the crimes in his late twenties. The Supreme Court, without a recorded dissent, denied his last minute appeal (focusing on his innocence claim).  He was then executed on schedule.  Well this time.

(I have seen a few people, including Radley Balko, arguing he put forth a strong case for innocence but less attention than some cases.  Enough probably to be concerned. It adds to the basic concern about ten or so horrible murderers, one or more likely with enough issues to make it a specific due process violation, being executed over so many other ones.  A sort of general due process problem. Not every one seemed to me to be "worse of the worst" either.  Just leave him to continue his long sentence.)

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Gary Ray Bowles started his eight-month murderous binge in Daytona Beach by killing John Hardy Roberts on March 14, 1994, inside the victim’s beachside home and now he is set to be the 99th death row inmate executed in Florida in modern times.

Bowles' first death sentence was overturned a tad ironically  because his hatred of homosexuality was deemed to be prejudicial.  But, it eventually was brought again though we had another extended (over twenty years) litigation battle.  Recently: "But the [Florida] Supreme Court said Bowles had failed to make a “timely” intellectual disability claim* because he did not raise the issue until 2017."  Thus, we have an article that spells out the procedure to be used (down to checking to ensure the team are not on drugs or something)  to execute our multi-murderer.

As with our last duo, the person who one might have less sympathy for might have the better chance looking at this from the weekend before.  Doing a docket search at the the Supreme Court website (both "capital" and the last name will do the trick), we see that Bowles' lawyers already have petitions up at the Supreme Court.  And, this isn't last minute!

Some Members of this Court have recently expressed reservations with “last-minute” litigation by death row prisoners under warrant. See, e.g., Price v. Dunn, 139 S.  Ct.  1533  (2019)  (Thomas,  Alito,  and  Gorsuch,  JJ.,  concurring  in  the  denial  of  certiorari). Mr. Bowles does not fall into that category. As the petition describes, Mr. Bowles’s intellectual disability claim had been pending for nearly two years when the Governor signed his death warrant. The expedited nature of this litigation was not the  result  of  Mr.  Bowles  filing  a  claim  in  response  to  a  death  warrant,  but  the  Governor signing a death warrant in the middle of Mr. Bowles’s intellectual disability litigation.

This is from a recent brief.  We also have a "Brief of Amici Curiae, Florida Association for Criminal Defense Lawyers and Florida Association For Criminal Defense Lawyers -- Miami Chapter" to support them.  There is a constitutional right not to be executed if one is below a certain intellectual level.  Hall v. Florida (2014) loosened the outer limits of determining this.  (It was 5-4, Justice Kennedy joining the liberals.)  The general argument is that the Florida rule is unconstitutional since if he is intellectually disabled, bringing the claim later should not matter.  And, the defense lawyers brief helps explain the 2017 date. The Florida Supreme Court only held in 2016 that Hall was retroactive.  Also, it argues under the Court's logic, Bowles would have had to bring the claim before the US Supreme Court had such a strict rule and since he claims to be around the borderline, his claim wouldn't have held up if he made it years back as desired.

Bowles had extended litigation with changing lawyers so I am not clear from a limited look why exactly the intellectual disability claim only arose in 2017.  But, the above very well suggests why, and it is a case of where new claims  might legitimately only arise long after the original trial.  As with Dexter Johnson's claims, allowing them to go thru does not necessarily mean Bowles would win on the merits.  It appears like this might be a close case.  Still, the hard barrier set up by Florida is a target that a defense might successfully attack over more easier than others. Finally, the fact the claim was not just brought (even if 2017 without the other stuff might seem too late, we are not talking truly last minute) might influence the votes of one or two conservatives. If it gets that far. 

There is also reference to concern about proper representation in this late summary of litigation. Florida is scheduled to execute Bowles on Thursday.  SCOTUS finally officially rejected the final appeals after 10PM, hours after the original execution time.  Justice Sotomayor flagged the problem of not hearing the merits of the intellectual disability claim but argued the actual petition was not an appropriate avenue of review.  Who knows what is in her heart of hearts when you need five votes to stay here.

The merits of the intellectual disability claim -- brought two years ago once procedurally possible -- should have been heard.  It seems to be a borderline case but the merits should have been heard.  Few tears should be shed for him personally but death penalty overall still is wrong and he could have fell under current rules regarding whom could not be constitutionally executed.  Sotomayor spoke of a "Kafka" process and in the end she did her part in furthering it, the passionate dissenter helping to legitimize things in a sense.  More executions in September.

Final summer order day tomorrow. [Yawn.**]

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* The Supreme Court, 6-3, held in Atkins v. Virginia that intellectual disability (then labeled "mental retardation")  is one of those characteristics (such as being under eighteen when committing the crime or insanity at the time of the execution itself) of the defendant that constitutionally blocks the death penalty.  There has not been a clear finding that actual innocence is a total bar though some suggestion in extreme cases that the federal courts should take another look.  As to the long time on death row, again, Justice Breyer's dissent in Glossip v. Gross is informative to deal with the issues.

Part of the equation, which changed the views of two justices, was the understanding contemporary standards warranted changing the holding of a ruling thirteen years before.  Justice Stevens, who authored the more recent opinion had dissented in the earlier case.  Three of the other dissenters were no longer on the Court.  This has been a factor in Eighth Amendment cases to get a sense if a punishment was proportional.  There continues to be some controversy including just how to "nose count" and how long something should be recognized as such to count. This arose here.

I think there is some validity to the concern though it is something that is likely to  come up in other constitutional matters.  Also, let's say there was some bite to the idea that the cited trend here was too new. The contemporary standards aspect is but one part of the equation; there is also a general rule that such and such might be unconstitutional even if it is not "unusual."  Plus, perhaps earlier there was a case to be made, but the recent trend tipped the balance.  So, how much does it really matter?

Finally, it might be a conclusion of the current state of affairs.  A flag here was that once you declare something unconstitutional that it was fixed.  Not only can this concern be cited for other things, those things show that constitutional law develops over time.  Something might not be fixed for all time in that respect. As to the specific matter, why cannot a state legislature, e.g., pass a resolution stating (perhaps with facts supporting it) such and such punishment -- if possible -- is a valid punishment?  F21 in the case also provides other groups (such as experts in the field) who help clarify the situation. They generally are not bound by constitutional findings of the Supreme Court. 

So, I do not really support the "one-way ratchet" concept here.

** SG granted right to participate in two cases of relevant federal concern, request to dispense printing of joint appendix granted (this pops up a few times in orders), a list of re-hearing denied [maybe, a FAQ page to explain this stuff?] and attorney discipline (the "D" order numbers as well as the names don't pop up when I did a search; the details could be interesting).