In Texas, Larry Swearingen has been granted permission by the US Court of Appeals for the 5th Circuit to file another writ of habeas corpus in Federal District Court. This is similar to the permission for which Troy Davis has appealed in the 11th Circuit. Swearingen has a pretty strong innocence claim: all the forensic evidence, including the revised testimony of the woman who conducted the victim’s autopsy, now suggests that he was in prison at the time of the murder and therefore could not possibly be guilty.
However, his new appeal has been limited to issues of whether his defense at trial was deficient or whether the prosecution knowingly presented false forensic testimony. That is, he will not be allowed to argue that he is innocent, only that he received an unfair trial.
This led a concurring judge to lament that Federal courts are still unable to hear “actual innocence” claims. He goes on to say:
This might be the very case for this court en banc—or the U.S. Supreme Court if we should demur—to recognize actual innocence as a ground for federal habeas relief. To me, this question is a brooding omnipresence in capital habeas jurisprudence that has been left unanswered for too long.
If the 11th Circuit judges are paying attention, they must know that the Troy Davis case could be the perfect vehicle for finally answering this question.