The Austin Chronicle

Death Watch: 11 Face Execution in Coming Months

A quiet summer gives way to a deadly fall

By Sarah Marloff, August 16, 2019, News

It's been months since Texas has been able to execute a death row inmate, but the quiet summer is leading into what looks to be a deadly fall. As of Aug. 13, 11 men – including Rodney Reed and two other infamous inmates, Larry Swearingen and Randy Halprin – are scheduled to be executed between tonight's (Aug. 15) scheduled killing of Dexter Johnson and Nov. 20.

Johnson, who had been slated to die on May 2, received a last-minute stay from U.S. District Judge Alfred Bennett, who agreed that Johnson's new legal team – from the Federal Public Defender's Capital Habeas Unit – needed more time on the case. But the Houston Chronicle reports that a planned hearing was canceled when Johnson's longtime appellate counsel Patrick F. McCann stepped down following a heated battle with the FPD, who accused McCann of poor lawyering. On May 23, a Harris County judge reset Johnson's execution date for tonight.

Now 31, Johnson has been on death row for more than a decade for the 2007 murder of a young couple whom he and several friends carjacked and robbed before Johnson allegedly raped the woman and shot the pair. Johnson, who suffers from brain damage – McCann has argued there's an actual hole in Johnson's brain – and schizophrenia, has maintained he didn't kill the couple. FPD filed for another stay of execution, which Bennett denied on Monday, Aug. 12, causing an appeal to be filed the same day in the U.S. 5th Circuit Court of Appeals, which is already considering a separate Johnson request for relief; both argue that Johnson is unfit for execution because he is "intellectually disabled."

FPD insists this Atkins claim (from the U.S. Supreme Court's ruling in Atkins v. Virginia) was "previously unavailable" to Johnson until recently, when the American Psychiatric Association "significantly" altered the "diagnostic criteria for the disorder." Under the new criteria, according to the filing, Johnson has undergone two independent expert evaluations concluding he is disabled, both of which Texas Attorney General Ken Paxton's team, in a response to Johnson's filing, says should not be considered at this late date, given that Johnson had been "properly convicted and sentenced to death" after the Atkins decision. Johnson looks to be the fourth man executed by the state this year.

If all goes according to the state's plan, Swearingen will be put to death six days later, on Aug. 21 – his sixth scheduled execution date. The Montgomery County man, convicted of the kidnap, rape, and murder of Melissa Trotter in 2000, made national headlines in recent years for his possible collusion with Houston serial killer Anthony Shore, who allegedly planned to confess to Trotter's murder before his own execution in January 2018. Since his arrest, and though he was the last person seen with Trotter, Swearingen continues to insist he's innocent.

In February, after a long legal battle, new DNA testing was performed but revealed no new information for either side, at which point Swearingen's execution was once again scheduled. In April, Swearingen's lawyers requested funding for a technology expert to review cell phone data from the day Trotter disappeared; during the trial, the state used this data to place Swearingen at key locations, but the April filing claims "their data was inadequate, their theories invalid, and their conclusions false and misleading." That request was denied in a somewhat scathing response by U.S. District Judge Andrew Hanen in June; on Aug. 9, Swearingen's counsel filed a last-minute appeal in the Texas Court of Criminal Appeals.

Elsewhere on death row, Reed has been given a death date of Nov. 20 despite his ongoing claims of innocence and court challenges. Sentenced to death for the 1996 murder of Stacey Stites, Reed filed a demand for a new jury trial in federal district court in Austin on Aug. 8; his lawyers at the Innocence Project have filed suit in the same court, arguing that the state's continued refusal to perform new DNA and forensic testing – including of the belt used to strangle Stites – violates Reed's constitutional rights. The filing insists this testing could prove another man's guilt (likely Stites' fiancé, Jimmy Fennell Jr., who later served 10 years for raping a woman while on duty as a Georgetown police officer). Prosecutors have argued that due to poor handling and storage of the evidence, DNA testing would not produce reliable results.

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