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Texas Executes Co-ed Killer:  A Texas man convicted of the December 1998 murder of 19-year-old college co-ed Melissa Trotter was executed by lethal injection Wednesday.  The Associated Press reports that Larry Swearingen became a cause celebre for anti-death penalty advocates such as the Innocence Project which helped him win five stays of execution with claims attacking the evidence and experts presented at trial.  While Swearingen consistently claimed he was innocent, evidence of his guilt included multiple witnesses who saw him with the victim on the day she disappeared; hairs and fibers from the victim were found on his clothing and in his truck; cellphone tracking put him on the road to the forest where her body was found on the day she disappeared; the victim's cigarettes and lighter were found in Swearingen's home, the victim's class schedule and medial papers were found in front of Swearingen's house and the leg torn from the panty hose used to strangle the victim belonged to Swearingen's wife with the other leg found in his house.  In addition Swearingen was caught in lies about his whereabouts on the day the victim disappeared.  On the day he was arrested, Swearingen led police on a high-speed chase.  He was under indictment for kidnapping a former fiancee at the time.  This November 2009 Federal District Court Memorandum and Order in Swearingen v. Thaler provides a more complete breakdown of the evidence.      


On August 5, you wrote about federal executions ordered by Attorney General Barr that "the new protocol is a simplified version of the previous protocol and need not be subject to the time consuming APA process" (referring to the Administrative Procedures Act, 5 U.S.C. § 553 and 551).

But on what basis are you contending that? Do you believe:

1) That the new protocol (which is in fact an addendum to original protocol) is a "rule of agency organization, procedure, or practice"; or

2) That "notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest"; or

3) That the addendum is not at all a rulemaking; or

4) Anything else?

Because if the answer is 2), the APA also requires that the agency "incorporates the finding and a brief statement of the reasons therefor in the rules issued" and I haven’t read that in the addendum. I also don’t know if the addendum was published in the Federal Register.

The "for the sake of argument" sentence of the prior post could have been better worded, but the applicability of the APA to the protocol addendum remains debatable.

In the future, please post comments to the posts to which they apply.

Sorry I had this idea a long time after. Nonetheless if that happens in the future, I will post the comment to the post to which it applies, even if it is an old post.

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