The inmate says the evidence now proves he was in jail at the time the victim was killed.
The U.S. Supreme Court ruled 6-3 in 1993's Herrera vs. Collins, another Texas death penalty case, that a simple claim of actual innocence did not entitle a death row inmate to federal constitutional review, despite the Eighth Amendment's ban on cruel and unusual punishments.
"[Leonel Torres] Herrera's constitutional claim for relief based upon his newly discovered evidence of innocence must be evaluated in light of the previous 10 years of proceedings in this case," the court majority said. "In criminal cases, the trial is the paramount event for determining the defendant's guilt or innocence. Where, as here, a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the constitutional presumption of innocence disappears. Federal habeas [constitutional] courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution."
The majority also said Herrera's argument that the 14th Amendment's due process, or fair proceedings, guarantee did not entitle him to a new review.
The late Justice Harry Blackmun led the dissent.
"Nothing could be more contrary to contemporary standards of decency ... or more shocking to the conscience ... than to execute a person who is actually innocent," he said.
"Just as an execution without adequate safeguards is unacceptable," he added, "so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder."
Herrera was subsequently executed, protesting his innocence to his last breath.
The stark truth for condemned prisoners seeking help from the justices is that the Supreme Court is not a trier of fact -- it leaves that to the trial courts, and to a lesser extent the appeals courts. Instead, the high court is engaged in making sure that defendants are treated fairly, regardless of the verdict.
After all, the inscription on the front of the Supreme Court building across from the Capitol, above the steps, does not promise "Justice Under Law." It promises "Equal Justice Under Law."
Now the Supreme Court is considering a petition from another Texas death row inmate, Larry Ray Swearingen, who says due diligence by his lawyers proves his conviction, based solely on circumstantial evidence, shows he could not have killed a 19-year-old college student -- though Texas officials strongly dispute that.
The case has drawn the attention of the Innocence Network, "an association of organizations dedicated to providing pro bono legal and/or investigative services to prisoners for whom evidence discovered post conviction can provide conclusive proof of innocence."
The 66 members of the network "represent hundreds of prisoners with innocence claims in all 50 states and the District of Columbia, as well as Australia, Canada, the United Kingdom and New Zealand."
The group's Web site says, "In 2011, the work of Innocence Network member organizations led to the exoneration of 21 people imprisoned for crimes they did not commit."
In a friend-of-the-court brief to the high court, the group said, "Although the [Supreme] Court's precedents have indicated that the execution of a habeas [constitutional] petitioner who presents a compelling post trial showing of actual innocence would violate the Eighth and 14th Amendments -- even without an accompanying claim of constitutional error -- the [Supreme] Court has yet to recognize a freestanding actual innocence claim."
The brief said: "Swearingen presents reliable scientific evidence refuting the core forensic testimony against him at trial and conclusively demonstrating that he is innocent of the crime underlying his conviction and capital sentence. As such, his petition compels the [Supreme] Court to take the long deferred step of recognizing a freestanding constitutional right to federal [constitutional] relief upon a persuasive showing of actual innocence.
"Simply put, the evidence supporting Swearingen's petition conclusively exonerates him of the murder for which the state intends to execute him," the brief said. "Each of the forensic scientists who has examined the pathological and histological evidence -- including the state's sole forensic witness at trial -- has concluded to a scientific certainty that the victim died after Swearingen [already] was incarcerated" on traffic charges.
The lower courts' "assessments of the reliability and credibility of the evidence supporting his claim have been incomplete, fundamentally unfair and inconsistent with this [Supreme] Court's precedents."
One of those lower courts, a panel of the 5th U.S. Circuit Court of Appeals, agreed with a trial court that Swearingen's claim of actual innocence was not entitled to new constitutional, or habeas, review.
The panel said a habeas petition is appropriate where the facts underlying the innocence claim "could not have been discovered previously through the exercise of [defense attorney] due diligence," and those facts, "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense."
But Swearingen did not meet that threshold.
Swearingen contended "he learned for the first time in 2008 of tissue samples [used to determine time of death] that exonerate him of the murder of Melissa Trotter," the panel said. "He further contends that he could not have discovered the existence of the samples prior to 2008 and that his attorneys provided constitutionally ineffective assistance by failing to uncover and employ this evidence."
The panel agreed with the trial judge "these arguments are unavailing. The evidence existed at the time of trial [in 2000] ... and even if it were not discoverable through due diligence, it does not constitute 'clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found [Swearingen] guilty of the underlying offense.'"
Trotter, a student at Montgomery County (Texas) Community College, disappeared in December 1998. Her body was found in the Sam Houston National Forest, strangled and her throat cut, less than a month later.
A convenience store security camera showed Trotter and Swearingen meeting two days before she died. At the time, he gave her his pager number.
Though neither Swearingen nor is wife smoked, a package of Trotter's favorite cigarettes and a lighter were found in Swearingen's trailer, state officials said. Also found in the trailer was a pair of pantyhouse with one leg missing. The state said the cut on the pantyhouse matched -- "a unique physical match" -- the jagged cut edge of the pantyhouse leg used to strangle her and left on the body.
Three days after Trotter's disappearance, police attempted to question Swearingen as a potential witness, but he fled in his pickup truck, state officials said. He was arrested on outstanding traffic warrants before being charged with Trotter's murder.
The state told the U.S. Supreme Court in its own brief of a number clues that pointed to Swearingen as the killer. Officials also argued the forensic experts looking at tissue from Trotter's body mainly focused on when the body was dumped in the national forest, not when she was killed -- Dec. 8, 1998.
Swearingen was convicted in a jury trial. His execution has been postponed by the courts three times, the last time in August.
The Supreme Court should decide whether it wants to review the case, and consider the concept of a "freestanding" claim of innocence, sometime within the next month.