UPDATE #2: Good news: Larry Swearingen just got a stay of execution from the U.S. Court of Appeals for the Fifth Circuit. The court granted the stay and also granted him permission to file another writ of habeas corpus in federal district court, though it limited him to two legal claims: 1) whether the state knew that the testimony of Joye Carter, the original medical examiner, was false and misleading, and 2) whether Swearingen’s trial attorney was ineffective in his cross-examination of Carter and ineffective in not developing cell and tissue evidence recently found at the Harris County medical examiner’s office.
“We are absolutely grateful for the stay,” says James Rytting, Swearingen’s attorney. “The evidence of innocence is compelling—it shows Larry couldn’t have murdered Melissa Trotter. It would have been a stain on our justice system if they had executed the man. And it will be if they ever go through with this in the future.”
If the federal appeal fails, Swearingen will appeal again to the Fifth Circuit. If that fails, Swearingen could wind up back before the state Court of Criminal Appeals again, as he has been for the past couple of weeks, desperately seeking a stay of execution based on his claim that, according to science, he could not have killed Trotter. “I would hope the CCA would take this case seriously,” Rytting says. “If that court doesn’t determine Swearingen meets the standards of actual innocence, no one ever will.”
In a fascinating side note, one of the three Fifth Circuit judges noted the federal elephant in the room—that there is no such thing as a legal claim of “actual innocence” in federal court. And Judge Jacques L. Wiener, Jr., obviously believes Swearingen gives the system a chance to have one: “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.”
UPDATE #1: Larry Swearingen dies tomorrow, January 27, 2009—even though six different physicians and scientists say there’s no way he could have murdered Melissa Trotter and left her body in the Sam Houston National Forest on December 8, 1998. Swearingen will be executed by the state of Texas at 6 p.m. Tuesday, unless the Court of Criminal Appeals or Governor Rick Perry steps in and stops it. James Rytting, Swearingen’s lawyer, has filed for a stay of execution with the CCA, citing even more new evidence (a January 20 forensic analysis of tissue recently found at the Harris County Medical Examiner’s office) that says Swearingen didn’t kill Trotter. I wish Swearingen luck—not once in all of his appeals has the CCA treated seriously the scientific testimony of these forensic pathologists and entomologists. The court has instead repeatedly bought the prosecution’s theory of the crime, one based on largely iffy circumstantial evidence.
There’s evidence that, in these final days, Swearingen’s case is becoming one of those death penalty cases that get a lot of media attention, which may in turn help sway the opinions of the men and women who will make the final decision. In the past few days, the Houston Chronicle wrote an editorial demanding that Perry stay the execution and both the Chronicle and the Austin American-Statesman published long stories on Swearingen’s case, each one skeptical of his guilt. The truth is, the closer you look at the case, the more you realize it’s simply a bad one. But don’t take my word—take the word of the physicians and scientists who have studied the evidence. Swearingen didn’t kill Trotter. And if someone doesn’t step in and do something, the state of Texas—in other words, you and me and every other citizen here—is going to execute an innocent man.
Innocent men in prison often have two things in common. They stubbornly refuse to plead guilty, even if it means a reduced sentence or freedom. And they never quit trying to prove their innocence, whether it’s by writing letters to lawyers and journalists, filing writs on their own, or just camping out in the prison library studying law books or anything else that could help their cases. The wrongly convicted never give in, and they never give up.
Larry Swearingen, an eight-year resident of Texas’s death row, is almost certainly a member of this unhappy group. From the beginning, when he was arrested in December 1998 for murdering Melissa Trotter in rural Montgomery County, just north of Houston, he has insisted he didn’t do it. He never asked for any kind of a plea deal, once saying, “I’m not going to plead guilty to something I didn’t do.” He took the stand at his trial and testified that he didn’t kill Trotter. Ever since, he has worked diligently from his cell at the Polunsky Unit to prove his innocence—filing writs to the court system, writing letters to journalists, even poring over climatological charts to prove his case.
But there are other reasons besides pride and perseverance to believe that Swearingen didn’t kill Trotter. Six different physicians and scientists—forensic pathologists and entomologists—say there’s almost no way Swearingen could have done it. One of those doctors was instrumental in convicting Swearingen back in 2000 but has now changed her mind after seeing all of the evidence. Dr. Glenn Larkin, a retired forensic pathologist in Charlotte, North Carolina, says, “As a forensic scientist since 1973, I always kept an objective stance when called to testify; however, there comes a point when as a human, and as a Christian, there is a mandate to speak in the interest of justice. This is a moral issue now; no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”
And it is a moral issue with real urgency. Swearingen just got an execution date of January 27. His lawyers are frantically trying to get a stay of execution as well as DNA testing. If they don’t succeed, it is entirely possible, even likely, that the State of Texas will execute an innocent man in two and a half weeks.
A Shaky Case
Back in 2000, the prosecutors of Montgomery County used mostly circumstantial evidence, some of it remarkably weak, to convict Swearingen. Trotter was a nineteen-year-old student at Montgomery College in Conroe when she disappeared on December 8, 1998. An extensive search was organized, and her body wasn’t discovered until January 2 in the Sam Houston National Forest by a couple of hunters—in an area that had been already searched three times. She had been strangled with one leg of a set of panty hose. Around her neck and face there was some decomposition from maggots as well as evidence of rodent scavenging. She was clothed but her shirt had been bunched up around her neck, and though her torso was bare, it showed no evidence of having been scavenged by the wild pigs, crows, raccoons, or vultures that live in the forest. Her corpse was not bloated, and police reported no foul smell. In fact, the hunters had initially thought she was a mannequin. The body appeared to have been in its final resting place for only a short period of time.
Swearingen, an ex-con who was working as an electrician, had met Trotter on December 6 and asked her out on a date. She stood him up the next day, but on December 8 they rendezvoused on campus. That same day she disappeared, making Swearingen one of the last people to see her alive. Three days later, he was arrested for outstanding traffic warrants and put in jail, where he remained after becoming a suspect in Trotter’s disappearance. When her body was found, Swearingen had already been in jail for three weeks.
Though no one saw Trotter leave the campus with Swearingen, the state was able to stitch together a tenuous narrative that had Swearingen kidnapping her in his truck, taking her to his trailer, raping her, killing her, and dumping her in the forest. (In order to get the death penalty, prosecutors had to prove murder in tandem with another felony, such as kidnapping or rape.) The motive? Prosecutors brought forward testimony from construction worker pals of Swearingen’s who said he had been furious at being stood up. As for proof about the kidnapping, there were witnesses who saw the two together on campus earlier that day, and there were fibers found on her jacket that “appeared to be” from Swearingen’s jacket and other fibers found on her and her clothes that were “similar to” carpet fibers from his trailer and truck seat.
Swearingen made two cell phone calls that afternoon, and because the calls were routed through a tower near the crime scene, the prosecution said that proved he had dumped the body there. As for proof of rape, Harris County chief medical examiner Joye Carter, who did the autopsy, found no evidence of violent penetration of Trotter, but she did say there was some discoloration of the vaginal wall. Though this could have come from normal intercourse, the prosecution used this as evidence that Swearingen had raped Trotter. When the Court of Criminal Appeals later took up Swearingen’s appeal, it admitted, even as it affirmed his guilt, “The forensic evidence is inconclusive.”
The most damning piece of evidence against Swearingen was another leg of panty hose found in the trash outside his trailer four days after Trotter’s body was located. Even this was not as clear-cut as it should have been. When the fabric was found, the trailer had already been fruitlessly searched twice by half a dozen deputies who turned up nothing. It was matched to the piece around Trotter’s neck by a DPS criminologist. Swearingen’s appellate attorney James Rytting wrote in an appeal that the pantyhose matching “was not based on scientific or forensic principles. The pantyhose material . . . can be easily stretched or distorted, so ‘matching’ may easily be the artifact of the examiner’s manipulations, whether intentional or unconscious.”
The case wasn’t entirely circumstantial. The state also called medical examiner Carter, who testified that she thought Trotter had most likely been killed on or about the day she disappeared. She based her opinion on the body’s external condition—the decomposition and maggot activity around the head and neck. She wasn’t asked—and didn’t tell—about the condition of the body’s internal organs, which were remarkably intact for a person who had supposedly been dead for so long.
The defense had two important things on its side that should have given the jury pause. Most critically, blood was found underneath one of Trotter’s fingernails and DNA analysis proved it was not Swearingen’s. Also, a pubic hair found in a vaginal swab was found not to be his. But the defense pathologist didn’t question why Trotter’s body was in such good shape, nor did the expert question the prosecution’s theory that she had died on or around December 8. The jury found Swearingen guilty and gave him the death penalty in June 2000.
The Science of Death
It wasn’t until Swearingen was given his first execution date, January 24, 2007, that he began to get medical science on his side. First came the bug guys, or forensic entomologists, who use insect larvae found in corpses to figure out time of death. On January 22, appellate attorney Rytting filed a habeas corpus appeal anchored by the testimony of an entomologist who said that, based on temperature reports that said the average temperature that month was 50 degrees with highs in the mid-70’s, the earliest those maggots could have begun colonizing her body was December 18—a week after Swearingen was put in jail. (Swearingen himself, while studying the temperature data, had found a crucial error in the numbers that showed it had actually been warmer than the climatologists had initially reported.)
The CCA stayed the execution and called for a hearing to look into the matter in the trial court. At the hearing, another entomologist, James Arends, testified; he noted that there was no evidence of maggot colonization in the anal and vaginal regions, as would be expected in a body left in the wild for so long. He also pointed out that the body hadn’t been picked on by the thousands of wild pigs, crows, and vultures that live and feed in the forest. (Or, as he wrote in an affidavit, “It is very common to find near to complete skeletonization, and bones scattered over a wide area by scavengers, in cases where remains of missing persons are not recovered for significant periods of time after being left in locations such as the location in this instant case.”) Arends’s conclusion? Trotter’s body had been there no longer than a week.
Pathologist Luis Sanchez, the current Harris County medical examiner, also testified at the hearing, saying that a body in the forest 25 days would show more decomposition, color change, bloating, and skin slippage. He also explained that the autopsy showed Trotter’s internal organs had been in good enough condition to be pulled out and sectioned; however, organs begin to break down upon death. The pancreas, for example, usually liquefies completely within 24 to 48 hours. Sanchez’s conclusion: The body hadn’t been in the forest for more than 14 days.
Unbelievably, the CCA denied that appeal without even commenting on the forensic science. Rytting filed another habeas appeal last year that included affidavits from Larkin and Lloyd White, the Deputy Tarrant County Medical Examiner. Larkin said, “December 23 is the soonest that Trotter’s body could have been left in the woods, which is to say, twelve days after Mr. Swearingen was incarcerated.”
White thought the conditions of the organs made it more likely Trotter died close to January 2, 1999. He viewed photos of her heart; they revealed that “the muscle is still red and relatively fresh looking . . . the appearance of the heart is what one would expect to find upon an autopsy of a recently deceased individual.” White also wrote, “Unfortunately, the conviction in this case rests upon misleading forensic pathological testimony.”
He was referring to the words of Joye Carter. She had moved on from Harris County, but Rytting tracked her down in Marion City, Indiana, where she was the chief forensic pathologist. He got her to reread the Trotter autopsy report and other materials—such as the temperature reports. Carter realized she had made a mistake, and now she submitted her own affidavit, in which she admitted it. By her calculations, the body had been in the forest for only 14 days, not 25. Carter based her new opinion on the condition of Trotter’s bare torso as well as her internal organs. Plus, she noted how Trotter had weighed 109 pounds at a doctor’s examination on November 23; when found, she weighed 105. As Larkin wrote in his affidavit, “even if a corpse is not scavenged, a body will lose up to 90 percent of its weight in less than 25 days.”
Once again, the upshot of all of this is simple: Trotter was murdered while Swearingen was in prison. Rytting added other claims in the 2008 appeal—that detectives knew Trotter was getting threatening phone calls from another man and that there was evidence that Trotter and Swearingen had actually been dating. The CCA again asked the trial court to hold a hearing to look into these allegations—but only the latter ones, not the ones dealing with pathology or entomology. Again, the highest court in the state said nothing about the science or the doctors and their claims that Trotter was killed long after Swearingen had been locked up. “How can that not merit a new trial?” asks Rytting. “In order to merit a new trial, we have to show that, given the new evidence, no rational juror would have convicted Swearingen. There is solid forensic evidence to show this and there is nothing to counteract it on the other side except for Carter’s testimony, which she has since recanted. The truth is, if they tried Swearingen today he would walk. You put the testimony of those physicians and scientists in front of a jury, they’re going to acquit.”
The CCA denied those final two claims in December, and Swearingen was given his new execution date: January 27. At this point, he doesn’t have a lot of options. Rytting will petition the US Court of Appeals for the Fifth Circuit to try and get them to allow another federal appeal, though the federal standard for bringing in new evidence is tough. On January 7, Rytting, with help from the New York–based Innocence Project, filed a request for a stay of execution—as well as more DNA testing. The attorneys want to use modern-day short tandem repeat (STR) testing, unavailable in 2000, to compare the DNA profile taken from the blood found under Trotter’s fingernail and put it into the federal CODIS database of DNA profiles of 6.3 million convicted offenders. They also want to use the new technology of “touch DNA”—it can detect DNA left behind in skin cells (it recently exonerated the parents of JonBenet Ramsey)—on the panty hose around Trotter’s neck and on her clothes, under the theory that the killer left cellular evidence behind as he dragged Trotter’s body through the forest.
It would be nice if, at this late date, the CCA showed some respect for science and granted the testing. It would also be nice if the high court took a step back and showed some respect for all the medical science it has ignored in Swearingen’s case. His conviction was based, as Dr. White said, on “misleading forensic pathological evidence”—as well as flimsy circumstantial evidence. Of course, cases are tried on circumstantial evidence all the time (often, that’s all law enforcement can find), but when circumstantial evidence is as tenuous as this was, and when it butts up against scientific evidence—when one says one thing and the other says another—you would like to think that the highest court in the state would at least give the science a look.
The bottom line: Someone killed Melissa Trotter and dumped her body in the Sam Houston National Forest. But that someone was not Larry Swearingen.