Thursday, May 17, 2018

Beware the Noble Prosecutor

I have an old case for your consideration, one that maintains a certain currency. It involves the wrongful conviction of four men for murder, two of whom survived long enough to be exonerated, and who were awarded one hundred and one million, seven hundred and fifty thousand dollars in their lawsuit against the FBI.

The story is best told by the judge who awarded the money. That would be United States District Court Judge Somebody Somebody Gertner in the case of Limone v. United States of America. At more than 250 pages, the decision is too long to include in its entirety. I therefore limit my excerpt to his introduction.  Yes, his ruling is so large that it has an introduction. It even has a table of contents.

Buckle up. Here we go. The emphasis is mine.
Peter Limone ("Limone"), Enrico "Henry" Tameleo ("Tameleo"), Louis Greco ("Greco"), and Joseph Salvati ("Salvati"), made extraordinary and troubling accusations in this case. They claimed that thirty-nine years ago, virtually to the date of this decision, on July 31, 1968, they were convicted of a crime which they did not commit — the murder of Edward "Teddy" Deegan ("Deegan"). Limone, Tameleo, and Greco were sentenced to die in the electric chair, a sentence reduced to life imprisonment whey the death penalty was vacated. They accused the United States, specifically, the Federal Bureau of Investigation ("FBI") of framing them for Deegan's murder, and then, by covering up FBI misconduct, ensuring their imprisonment over the next three decades. 
This trial, however, was not about securing the plaintiffs' release. Salvati was freed in 1997; Limone in 2001. Tameleo and Greco died tragically as prisoners — Tameleo in 1985, Greco in 1995. 
Rather, the plaintiffs sought a different form of redress, which the law allows — damages for their loss of liberty, for their pain, and the pain of their loved ones. They brought this lawsuit ... on a number of grounds, including malicious prosecution. 
The bench trial was lengthy. It took twenty-two days and involved hundreds of exhibits, thousands of pages. There were comparatively few live witnesses; this story had to be painstakingly pieced together through documents, many of them heavily redacted, particularly at the outset of the proceedings. 
Despite the complexity of the record, this decision is far, far, longer than I would have wished. It has taken much more time to complete than I had predicted. But there was no other alternative. The conclusions that the plaintiffs have asked me to draw — that government agents suborned perjury, framed four innocent men, conspired to keep them in jail for three decades — are so shocking that I felt obliged to analyze this complex record with special care in order that the public, and especially the parties, could be fully confident of my conclusions. 
I have concluded that the plaintiffs' accusations that the United States government violated the law are proved. In the pages that follow, I will describe why in detail. This introduction summarizes some of those findings. 
The plaintiffs were convicted of Deegan's murder based on the perjured testimony of Joseph "The Animal" Barboza ("Barboza"). The FBI agents "handling" Barboza, Dennis Condon ("Condon") and H. Paul Rico ("Rico"), and their superiors — all the way up to the FBI Director — knew that Barboza would perjure himself. They knew this because Barboza, a killer many times over, had told them so — directly and indirectly. Barboza's testimony about the plaintiffs contradicted every shred of evidence in the FBI's possession at the time — and the FBI had extraordinary information. Barboza's testimony contradicted evidence from an illegal wiretap that had intercepted stunning plans for the Deegan murder before it had taken place, plans that never included the plaintiffs. It contradicted multiple reports from informants, including the very killers who were the FBI's "Top Echelon" informants. 
And even though the FBI knew Barboza's story was false, they encouraged him to testify in the Deegan murder trial. They never bothered to tell the truth to the Suffolk County District Attorney's Office. Worse yet, they assured the District Attorney that Barboza's story "checked out." 
The FBI knew Barboza's testimony was perjured because they suborned that perjury. They met with Barboza long before the state authorities ever did. They coddled him, nurtured him, debriefed him, protected him, and rewarded him — no matter how much he lied. When Barboza told them he would not accuse the man they knew to be one of Deegan's killers, his friend and FBI informant, Jimmy Flemmi, they urged Barboza to testify nonetheless. And when he announced that he would accuse four men who had never been linked to this murder, they were undaunted. They continued to press for his testimony. Indeed, they took steps to make certain that Barboza's false story would withstand cross-examination, and even be corroborated by other witnesses. 
In word and in deed, the FBI condoned Barboza's lies. FBI agent Dennis Condon even told the Deegan jury that he was "always concerned with the purity of testimony on the part of his witnesses, referring to Barboza, the perjurer. When Tameleo, Greco, and Limone were sentenced to death, Salvati to life imprisonment, the FBI did not stand silently; they congratulated the agents for a job well done. 
Nor did the FBI's misconduct stop after the plaintiffs were convicted. The plaintiffs appealed, filed motions for a new trial, one even took and passed a polygraph test on public television — over and over again protesting their innocence. They sought commutations, appeared before parole boards, seeking clemency from the governor, even appealing to the press. On each occasion, when asked about the plaintiffs, on each occasion when the FBI could have disclosed the truth — the perfidy of Barboza and their complicity in it — they did not. This was so even as more and more evidence surfaced casting more and more doubt on these convictions. In the 1970s, for example, Barboza tried to recant his testimony, not in all cases in which he had participated, but only as to the plaintiffs in this case — the very men the FBI knew to be innocent. In the 1980s, Agent Rico was found by a court to have suborned the perjury of another witness under similar circumstances. Yet, there was still no FBI investigation, no searching inquiry to see if an injustice had been done in this case.
I interrupt here to suggest that you remember what happened beginning in the 1980s. There will be a pop quiz later. Now back to the introduction.
Rather, while Salvati and Limone languished in jail for thirty-odd years, and Greco and Tameleo died in prison, Barboza and his FBI handlers flourished. The FBI agents were given raises and promotions precisely for their extraordinary role in procuring the Deegan convictions. Even when Barboza, the "poster boy" for the new federal witness protection program, committed yet another murder, three federal officials testified — now for the second time on his behalf. FBI officials up the line allowed their employees to break laws, violate rules and ruin lives, interrupted only with the occasional burst of applause. 
The FBI knew Barboza's testimony was false, that the plaintiffs' convictions had been procured by perjury, that critical exculpatory information had been withheld — but they did not flinch. After all, the killers they protected — Jimmy Flemmi, along with Barboza, and Jimmy's brother, Stephen — were providing valued information in the "war" against the Italian Mafia, La Cosa Nostra ("LCN"). The pieties the FBI offered to justify their actions are the usual ones: The benefits outweighed the costs. Put otherwise, in terms that are more recently familiar, these four men were "collateral damage" in the LCN war. To the FBI, the plaintiffs' lives, and those of their families, just did not matter. As Agent Rico put it in his testimony before the United States House of Representatives Committee or. Government Reform, when asked if he had any remorse that four innocent men went to prison, he replied: "Would you like tears or something?" 
Now is the time to say and say without equivocation: This "cost" — to the liberty of four men, to our system of justice — is not remotely acceptable. No man's liberty is dispensable. No human being may be traded for another. Our system cherishes each individual. We have fought wars over this principle. We are still fighting those wars. 
Sadly, when law enforcement perverts its mission, the criminal justice system does not easily self-correct. We understand that our system makes mistakes; we have appeals to address them. But this case goes beyond mistakes, beyond the unavoidable errors of a fallible system. This case is about intentional misconduct, subornation of perjury, conspiracy, the framing of innocent men. While judges are scrutinized — our decisions made in public and appealed — law enforcement decisions like these rarely see the light of day. The public necessarily relies on the integrity and professionalism of its officials. 
It took nearly thirty years to uncover this injustice. It took the extraordinary efforts of a judge, a lawyer, even a reporter, to finally bring out the facts. Proof of innocence in this democracy should not depend upon efforts as gargantuan as these. 
The claims of the plaintiffs or their estates fit into four categories: malicious prosecution, civil conspiracy, intentional infliction of emotional distress, and negligent selection, supervision, and retention. Their spouses and children have each brought loss of consortium and bystander intentional infliction of emotional distress claims as well. 
The federal government has fought hard. The legal doctrines on which it has relied are important ones. They are doctrines designed to give law enforcement room to make critical policy decisions. They are intended to insulate those who bring information in good faith to the authorities, even if the information is later disproved. All the FBI did, the government argued, was exercise their discretion about whom to offer deals, and how to conduct an investigation. All they did was to present their cooperating witness to the state authorities who independently prosecuted the crime. In effect, what they are saying is that it was the state's fault — not theirs — for not doing a better job. If the FBI erred at all, it was in not turning over information exculpatory to the defense — nothing more — and that violation is not actionable ... 
The government's position is, in a word, absurd. The law they cite does not apply to the extraordinary facts of this case. The issue here is not discretion but abuse, not independent charging decisions but the framing of four innocent men, not the failure to produce exculpatory evidence but procuring convictions by misrepresentation, not letting perjured testimony proceed uncorrected but facilitating it. 
The FBI, and not the state, developed Barboza as a witness, knowing that his false testimony would be used to prosecute the plaintiffs for a crime they did not commit. They, and not the state, kept their conduct from being discovered by failing to disclose exculpatory evidence, before, during, and after the trial. They, and not the state, vouched for Barboza to law enforcement and to the very jury hearing the murder case, even when all the information they had flatly contradicted his account.  ...
In the end I conclude that the defendant is liable to these men and their families. As to damages, plaintiffs' loss of liberty, and, in effect, a lifetime of experiences, is obviously not compensable. To the extent that damages can approach this task, my total award is One Hundred One Million, Seven Hundred Fifty Thousand, And 00/100 ($101,750,000.00) Dollars.
Now for the quiz. Who was the U.S. Attorney who, throughout the 1980s, wrote letters to the parole and pardons board opposing clemency for the four men the Feds had wrongfully convicted?

I'll give you a hint. This U.S. Attorney was also the acting U.S. Attorney in Boston while, in another disturbingly similar case, Whitey Bulger was helping the FBI cart off his criminal competitors even as he buried bodies in shallow graves.

It's a tough one, I know, so I will give you four lines to contemplate your answer before I reveal it.

One line.

Two lines.

Three lines.

Four lines.


In 2007, when asked about about the FBI corruption in Boston, Robert Muller offered this pearl of wisdom: "I think the public should remember what happened, happened years ago."

Wednesday, May 16, 2018

The Lenny Bruce Cautionary Tale

Being older than most other people in this world, a claim that can be made by only some 3.8 billion others, I remember Lenny Bruce. What I knew of him came from the eponymous 1974 movie Lenny starring Dustin Hoffman and Valerie Perrine.
LennyOScheck.jpg
Since I made a point of my imperfect recollection in my last post, I'll admit to being surprised to learn (or re-learn, as the case may be) that Dustin Hoffman starred as Lenny Bruce. That came as a surprise to me when I glanced over the Wikipedia article for the movie. Then I saw that Valerie Perrine co-starred in the movie, and I was not so surprised by that. That fact seemed somehow familiar to me, though I wouldn't have thought of her name in response to a Jeopardy question. Maybe the movie poster created a few more neurons of her than of him.

But I meander.

For those not familiar with Lenny Bruce, I'll excerpt from the Wikipedia article on him.
Leonard Alfred Schneider (October 13, 1925 – August 3, 1966), better known by his stage name Lenny Bruce, was an American stand-up comedian, social critic, and satirist. He was renowned for his open, free-style and critical form of comedy which integrated satire, politics, religion, sex, and vulgarity. His 1964 conviction in an obscenity trial was followed by a posthumous pardon, the first in the history of New York state, by then-Governor George Pataki in 2003.
Bruce is renowned for paving the way for future outspoken counterculture-era comedians, and his trial for obscenity is seen as a landmark for freedom of speech in the United States. In 2017, Rolling Stone magazine ranked him third (behind disciples Richard Pryor and George Carlin) on its list of the 50 best stand-up comics of all-time.
The Wikipedia article provides a long list of cultural references to Lenny Bruce, some of which I recognize after the fact. Simon and Garfunkel incorporated him into several variations of their songs. Bob Fosse, who directed Lenny, incorporated Lenny into All that Jazz. And, my favorite, Lenny Bruce is pictured on the top row of the cover of the Beatles 1967 album Sgt. Pepper's Lonely Hearts Club Band. He's on the top row, fourth from the left, at least according to this site:
Sgt. Pepper's Lonely Hearts Club Band.jpg
I guess that is Lenny Bruce, top row, fourth from the left. I'll provide his mug shot and let you decide for yourself.
In summary, Lenny Bruce was a comic who told dirty jokes, was convicted of obscenity for them, and thereby became famous. And with that astoundingly well-organized background out of the way, I'm ready for the cautionary tale portion of this post. I excerpt now from the Wikipedia article for Lenny.
The film jumps between various sections of Bruce's life, including scenes of when he was in his prime and the burned-out, strung-out performer who, in the twilight of his life, used his nightclub act to pour out his personal frustrations. We watch as up-and-coming Bruce courts his "Shiksa goddess", a stripper named Honey. With family responsibilities, Lenny is encouraged to do a "safe" act, but he cannot do it. Constantly in trouble for flouting obscenity laws, Lenny develops a near-messianic complex which fuels both his comedy genius and his talent for self-destruction. Worn out by a lifetime of tilting at Establishment windmills, Lenny Bruce dies of a morphine overdose in 1966.
I've emboldened two cautionary notes in the excerpt, both of which I take to heart. Dealing with the second one first, I don't want to be worn out tilting at Establishment windmills (interesting capitalization) and die of a morphine overdose in 1966. Second, I don't want to become a burned-out, strung-out blogger who uses his writing to pour out his personal frustrations.
Many of the events that have taken place over the last four years are of intense interest and importance to me, but I suspect my august readers have their own issues to fret over. I feel the urge to rapidly pour out all that has happened, but I must resist the temptation.
What I remember most from my viewing of Lenny was how he had turned his nightclub act from one of fantastic comedy in which he made fun of the human condition, to one in which he literally read from the legal documents in his case. Since I've been known to quote from a legal document or two, I see the parallel and suddenly seem one step close to dying of a morphine overdose in 1966.
Now for the happy ending.
Because of Lenny and Lenny, I realize that I should not use my return to this august blog to tell only of matters of great importance to me. I need to write more broadly, of wrongful convictions beyond my immediate interest, perhaps even of other aspects of the human condition.
That way, I might not only recover some of my readership, I might also not die of a morphine overdose in 1966.

Tuesday, May 15, 2018

I'm Back

My previous post was dated 14 May 2014, so it's been 4 years and 1 day since I posted. Hopefully, my next post will not be that far in the future.

As I remember it, incorrectly as it turns out, I stopped blogging after I failed to stop the execution of Preston Hughes III, restarted for a while, then quit mid-post, telling my wife I was done. I was discouraged and miserable, and the blogging was taking up too much of my time, with which I should have been making some money. I remember that sequence pretty clearly, but my memory is flawed, just as is that of everyone else. My clear mis-recollection is just more evidence of how bad eyewitness testimony can be.

As I look back over the history of my posts, I see that I did indeed stop posting on 15 November 2012 with a post entitled "Hughes News: Executed."  The entirety of the post read: "7:52 PM   I will not be posting for at least a few days." Regarding that issue, my memory was reasonably accurate.

I see that I then started posting again six days later, on 21 November 2012, presenting a letter I had received from Preston Hughes, one that he wrote the day before he was executed for a crime he did not commit.  I have some news on that letter to share, but not quite yet.

Next post was on 28 November 2012. It was the first in a series I entitled "Anatomy of a Murder," in which I argued that Hughes was murdered if his conviction resulted from felonious behavior on the part of Texas state agents, making clear that perjury in a capital case in Texas is a felony, making clear also that I believe felonious perjury did in fact take place.

I see that I did indeed stop blogging in 2013, but not as early as I recalled. I added 30 posts in 2013, the last being dated 14 July and dealing with the possibly unacknowledged victims of Anthony Allen Shore, who has since been executed.

If I had stopped there, I wouldn't be particularly bothered by my lack of detailed memory. I see, however, that I posted 15 times in 2014, posting once about Cameron Todd Willingham and then beginning a series called "Framing the Guilty, Framing the Innocent." That series began on 14 April 2014 and ended a month later after 11 posts. It's this series of posts that I failed to remember.

A lot has happened in the last four years. A whole lot. And so I'm back to talk with you about some of it. I make no promises on how long I might continue my writing on this august blog, and you shouldn't believe any promise that I might make, since I've been fickle in the past. At this point, I'll simply make a rather lame claim that I intend to post again in not too many days, to begin updating you, the august readers of this august blog, who are now scattered to the four winds.

Only that and nothing more.

Wednesday, May 14, 2014

The Extent of Framing the Innocent in Texas

This is the eleventh post in the series Framing the Guilty, Framing the Innocent. For ease of navigation among the posts, use the Table of Contents.

In this post, I will calculate how many innocent people have been framed and executed by the State and People of Texas. It might be interesting. Stay tuned.

I'll begin not in Texas, but Virginia. I'll begin not with a prisoner, but with a serologist. Mary Jane Burton worked for Virginia's Department of Forensic Science from 1973 to 1987. (She died in 1999.) As a serologist, she determined blood type and other identifying information from biological samples. DNA identification was never a part of her job. Even by the end of her career, DNA technology was still in its infancy.

Burton had a habit of taping cotton swab heads and textile clippings to the worksheets in her case notebooks. She used the swabs and clippings while testifying to show the jury the exact piece of evidence she tested. While Virginia routinely destroyed biological evidence from old cases, Mary Burton's swabs and clippings remained tucked away well preserved in her notebooks.

Advancements in DNA technology, coupled with Virginia's routine destruction of its DNA evidence, eventually led to the discovery of Mary Burton's treasure trove of well-preserved, well-documented DNA samples. The first person to be exonerated by Burton's diligence was Marvin Anderson. He had spent 15 years in prison for a rape he did not commit. The next to be freed was Julius Earl Ruffin. He had spent 21 years behind bars for a rape he did not commit. Then came Arthur Lee Whitfield (22 years), Phillip Thurman (20 years), and Willie Davidson (12 years).

After a long and inexcusable delay, the five exonerations led to a thorough review of all the DNA evidence that Burton had so carefully preserved. The results of that review were finally published just recently by the Urban Institute, working under contract to the U.S. Department of Justice. Their thrilling report, Post Conviction DNA Testing and Wrongful Conviction, has not been as widely read as The Hunger Games or Fifty Shades of Grey, so I'll summarize the results for you, right here and now.
A total of 715 convictions were reviewed based on Burton's samples and other case evidence. (293 homicides, 375 sexual assaults, and 47 sexual assault homicides)
For 465 of the convictions, Burton's samples provided no additional insight into actual guilt or innocence. 
For 194 of the convictions, Burton's samples substantiated the guilty verdict. (For my analysis, these are the confirmed guilty.)
In 18 of the convictions, Burton's data provided exculpatory evidence, but the evidence was insufficient to support exoneration. 
In 38 of the convictions. Burton's samples provided exculpatory evidence that supported exoneration. (For my analysis, these are the confirmed innocent.)
Using the Urban Institute results, it is now easy to calculate a rate of wrongful conviction. I'll ignore the cases in which the review provided no additional insight into actual guilt or innocence. I'll also ignore the convictions that suggested innocence but did not firmly establish it. That leaves me with 236 convictions in which the Urban Institute confirmed guilt (194 cases) or discovered innocence (38 cases). The rate of wrongful conviction is 38 cases of wrongful conviction divided by 236 cases of confirmed guilt or innocence. That equals 0.161. That is 16.1%.

Holy Cow!

Even I'm shocked, at least I was when I first performed this calculation. I had previously argued that our rate of wrongful conviction is around 11%. (See for example On the Rate of Wrongful Conviction: Chapter 10.6 and On the Rate of Wrongful Conviction: Chapter 11.1) Most everyone else who attempts to determine the rate of wrongful conviction concludes that the number is somewhere between zero and 3%. A few venture as high as 5%. My 11% number stuck out like a sore thumb, and now I discover that I may have been too kind to our justice system.

Holy Cow!

I hereby admit that I started with the Virginia DNA database because I wanted to soften you up. To further prepare you for the number of innocent people framed and executed by Texas, I'm now going to calculate a rate of wrongful conviction for capital murder for all states other than Texas. Whatever you may think of our capital punishment system, it provides a handy basis for estimating a wrongful conviction rate.

Every capital murder conviction in this country is reviewed over and over again for a decade, or two, or three. Prosecutors and appellate attorneys and innocence projects and lay citizens attempt to persuade appellate judges and the public that the convicted party is truly guilty or actually innocent. Eventually, some of the convictions are irrevocably resolved by either an execution or an exoneration. It is the irrevocably resolved cases that provide a solid basis for estimating a rate of wrongful conviction.

Here are the inputs for my calculation:
According to the Death Penalty Information Center, there have been 1001 executions in all states other than Texas since 1976 when the Supreme Court lifted its ban on the death penalty. 
According to the Death Penalty Information Center, there have been 125 exonerations of death row prisoners in all states other than Texas since 1976 when the Supreme Court lifted its ban on the death penalty.
I'll be quick. As a country, excluding Texas, we have reviewed 1126 death sentences carefully enough to make an irrevocable decision about actual guilt or innocence. In 1001 of those cases, we confirmed the jury verdict and we executed the prisoner. In 125 of those cases, we determined that the jury got it wrong and we exonerated the prisoner. The rate of wrongful conviction is therefore equal to 125 cases of wrongful conviction divided by 1126 convictions irrevocably resolved. That equals 0.111. That equals 11.1%.

That's bad. That's really, really bad. It is substantially lower than the 16% rate calculated from the Urban Institute report, but it is still really bad. I believe I know why it is lower. The data from the Urban Institute are more heavily populated with cases of sexual assault. My previous work in this area has convinced me that juries wrongfully convict in rape cases substantially more frequently than they do in murder cases. (As an aside, juries wrongfully convict most frequently in child molestation cases, and least frequently in drug cases.) Whatever the reason for the disparity, I'll use the 11.1% number as I continue to calculate how many innocent Texans have been framed and executed.

I'll now calculate the exoneration rate for Texas, again using data from the Death Penalty Information Center. Texas has executed 515 prisoners since 1976. On the other hand, Texas has exonerated only 12 of its death row inmates.

That's right. You did the math correctly in your head. Even though Texas has performed a third of all the executions nationwide, it has exonerated less than 9% of those saved from the needle. By comparison to the rest of the country, Texas is execution happy and exoneration resistant.

Texans and pro-death-penalty advocates may claim that the numbers only prove that Texas is better than the rest of the country at getting it right, that Texas makes fewer errors, that Texas has a lower rate of wrongful conviction. I suspect that's not the case. I'm going to instead assume the following:
1. The jury members in Texas are neither brighter nor dimmer than their fellow jury members across the country. They are just people suddenly asked to make sense out of a complicated, obfuscated, tragic mess. (I'm fairly confident that this assumption is reasonable.) 
2. The police, prosecutors, medical examiners, and forensic specialists in Texas are no better or worse at framing defendants. They are no better or worse with respect to fabricating inculpatory evidence or withholding exculpatory evidence. (I'm less confident with this assumption.) 
3. The Texas Court of Criminal Appeals is the agency primarily responsible for the low rate of exonerations in Texas. They allow cases to stand even when based on a confession extracted by a viable threat of torture. They forgive police for planting evidence and fabricating dying declarations, prosecutors for withholding evidence, medical examiners for prosecution friendly times-of-death, and serologists for cheap magic tricks in lieu of science. (I'm really confident of this assumption.)
Using those three assumptions and the 11.1% wrongful conviction rate for the rest of the country, I can now calculate how many Texas death row inmates should have been exonerated rather than executed. Out of 527 death penalty cases irrevocably resolved in Texas, 11.1% of them,  58 of them, should have been exonerations. Only 12 of them were exonerated. 46 of them were instead executed when they should have been exonerated.

To be clear, to be absolutely clear, I am indeed suggesting that Texas may have executed 46 innocent people. I can't identify all of them by name, but I can identify many of them. A few of the people likely innocent but certainly executed by the State and People of Texas are:
Preston Hughes
Cameron Todd Willingham 
Frances Elaine Newton
Johnny Frank Garrett

Lamont Reese
David Wayne Spence
Kia Levoy Johnson
Robert Nelson Drew
Carlos DeLuna
Richard Wayne Jones
Ruben Cantu
Davis Losada
Jesse Romero
David Wayne Stoker
Now for the final part of my post: the determination of how many of the innocent people executed by Texas were framed. I'll concede that I cannot make that determination without identifying and researching each case of wrongful execution in Texas. I will, however, make this observation. No one is ever accidentally, unintentionally, inadvertently convicted of a capital murder he did not commit. There is always someone working for the State to help things along.

Tuesday, May 13, 2014

The Framing of Larry Swearingen, Part 4

This is the tenth post in the series Framing the Guilty, Framing the Innocent. For ease of navigation among the posts, use the Table of Contents.

For a thorough overview of the case against Larry Swearingen, see The Framing of Larry Swearingen, Part 1. To understand how Larry Swearingen was framed with planted evidence, see The Framing of Larry Swearingen, Part 2. To understand how Larry Swearingen was framed by the prosecution-friendly, medically unsound testimony of the Dr. Joye Carter, see The Framing of Larry Swearingen, Part 3. In this post, I will discuss who might have killed Melissa Trotter.

When Melissa Trotter was murdered, there was a serial ligature killer working the area. The police would not manage to capture him until three years after Larry Swearingen was convicted of the ligature strangulation of Melissa Trotter. Had they caught the serial killer sooner, Melissa Trotter might be alive today.

The serial killer, the one who used ligatures to murder his victims, is Anthony Allen Shore. Shore currently resides not too far from Larry Swearingen. They are both in the Allan B. Polunsky Unit of the Texas Department of Criminal Justice. They are both on death row.

The Polunsky Unit is located in West Livingston, Texas, just to the west of the Sam Houston National Forest where the body of Melissa Trotter was discovered on 2 January 1999.  The State and People of Texas believe that Larry Swearingen strangled Trotter with one leg from a pair of pantyhose, then dumped her body in a remote area. So convinced are they that they hope to execute him as soon as possible.

Given the rarity of ligature killings, I suggest it is more far more likely that Anthony Allen Shore strangled Melissa Trotter with one leg from a pair of pantyhose, then dumped her body in a remote area, as he was apt to do. I suggest further that DNA testing might prove that Anthony Allen Shore or some other individual murdered Melissa Trotter. The State of Texas doesn't care for the idea of any DNA testing.

Not a bit.

I became aware of Anthony Allen Shore only after my failed effort to save Preston Hughes from being wrongfully executed. Since the evidence showed that Hughes did not murder 15-year-old Shandra Charles and 3-year-old Marcell Taylor, I wanted to know who might have. I was surprised to learn that a serial killer of young women was working the area at the time of the murders, that the serial killer lived less than two miles from the crime scene, and that the serial killer confessed to killing his first victim nearby, two years to the day before the murders of Charles and Taylor.

That serial killer was Anthony Allen Shore. I researched him and wrote extensively about him in this blog. I suspect that he has not yet confessed to all of his murders. I conclude nonetheless that he was not the person who killed Charles and Taylor. They were stabbed, each in the same precise manner; Shore strangled, usually with a ligature. The murders of Charles and Taylor were cold, deliberate, and professional. Shore murder's were uncontrolled, poorly planned, and clumsy. The murders of Charles and Taylor were probably related to drugs. Shore's murders were related to something more primitive.

As I investigated Shore's murders, it occurred to me that he may have killed Melissa Trotter. I wrote of that possibility in my series "Who Murdered Melissa Trotter?", specifically the final post of that series Who Murdered Melissa Trotter? Anthony Allen Shore. I'll attempt to be brief as I summarize that post here. I'll probably fail, at least with respect to being brief.

If Melissa Trotter was murdered by Anthony Allen Shore, she was the victim of a fatally unfortunate string of coincidences. Such is the case of almost all those who fall prey to predatory serial killers. The victim's physical characteristics match those sought by the serial killer. The victim's behavior, while perfectly innocent, makes her vulnerable. Finally, and most coincidentally, the victim just happens to be in a specific place at a specific time when the serial killer is also there, at that specific time, at that specific place, searching for prey.

Shore preyed on young, thin, small women. By his own admission, he was particularly drawn to young women with long flowing hair, dark eyes, a nice smile, and an athletic build. Consider the image below:


From left to right, top to bottom, Shore's confessed victims plus Melissa Trotter.
 Selma Janske (pseudonym)
 Melissa Trotter (possible victim)

At 19 years old, Melissa Trotter would have been neither the oldest nor the youngest of Shore's victims. At 5 feet 3 inches tall, she would have been neither the tallest nor the shortest of his victims. At 108 pounds, she would have been neither the heaviest nor the lightest. Melissa Trotter, tragically, seems to have been the very sort of person that Anthony Shore preyed on.

Trotter's lifestyle also increased the odds that Shore would be drawn to her. Shore believed, with some justification, that women would be drawn to him. Before killing his victims, he attempted to establish a consensual sexual relationship. When quickly or eventually rejected, he used a ligature to forever silence the young woman (or young girl) who shamed him.

Melissa Trotter was sexually active. Based on police investigations soon after her disappearance, she had sexual relationships with at least 18 men. I find no fault in that. I do note, however, that the behavior made her more susceptible to the superficial charms of Anthony Allen Shore. Regarding Shore's charm, I offer several quotes from Strangler, Corey Mitchell's book about Shore:
From Gina Lynn Worley, Shore's first wife: "I was checking the mail in my mailbox and he ran down the stairs all flustered and introduced himself, saying, 'Hi! I'm Tony Shore! I'm the nicest guy you'll ever meet. I thought he was charming. He is a charming guy. He was really a nice, open genuine person." 
From the waif-like Amy Lynch, Shore's second wife, fourteen years his younger: "It was a small ceremony. I was young and naive, and he was really charming. ... He's creative. He's smart. he's talented. He's brilliant and he's charming." 
From the waif-like Shore Pauline Cody, Shore's third wife, also fourteen years his younger. "He swept me off my feet, ... he was very charming. There was a lot about him that seemed attractive. he was really smart. He was very articulate and musically inclined and just opened up my world to a lot of new things."
Shore had already charmed his way into the life of women even younger than Melissa Trotter. Second wife Amy Lynch moved in with Shore when she was still in high school. A chance encounter between Trotter and Shore could have led to a dating relationship that turned deadly.

Melissa Trotter disappeared from Montgomery College. The school is located in The Woodlands, just off the I-45 interstate running north out of Houston. At the time of Trotter's disappearance, Shore was also living just off the I-45, on the 700 block of East 18th Street north of downtown Houston. The distance between Melissa's school and Shore's house was 31 miles.

Shore picked up his last confessed victim, Dana Sanchez, from a convenience store near his home. He drove her north on I-45, towards. Somewhere along the way he strangled her with a segment of nylon rope and dumped her body in a field half-way between his house and Montgomery College. He then continued to drive north, towards and perhaps past Montgomery College, until he found another field in which to dispose of Sanchez' clothes and personal effects.

Not only did Shore dispose of Sanchez and her effects near where Melissa Trotter disappeared, the two bodies were laid out, possibly posed, in similar fashion. So similar is the body positioning that I have decided to show the two corpses as they were discovered. On one hand, I am reluctant to present them. They are gruesome, and there is no way that they cannot be painful to friends and family. On the other hand, a man's life is at stake.


That is Dana Sanchez' body on the left, Melissa Trotter's body on the right. I previously used this composite image in my post on Dana Sanchez to reinforce the argument that Trotter's body had not long been in the forest. Sanchez' body had been exposed for only 8 days. Trotter's body clearly had not been exposed for 25, despite Joye Carter's ever-wavering opinion to the contrary.

I reuse the image here to make a point that only recently occurred to me. Shore not only confessed to disposing of a body near Melissa Trotter's last known location, the two bodies ended up in nearly identical positions. Each was on her back. Each had her right arm raised above her head. Each had her left arm by her side. Each had a ligature about her neck.

Not only does the composite photo provide powerful evidence of Swearingen's innocence, it might provide evidence of Shore's guilt.

A month before her disappearance, Melissa Trotter was trying to extract herself from a horrifying relationship. Whomever she was seeing had begun to stalk her, frighten her, and threaten her life. The police had been told about the stalker who threatened Melissa's life, but they kept that information from Swearingen's defense team. The Texas Court of Criminal Appeals declared that withholding to be nothing more than a harmless error.

I include below portions of a post-conviction affidavit that I presented elsewhere in its entirety.
My name is Lisa Roberts. I swear to the best of my knowledge, the following is true and correct: 
1. In 1998, I was employed at League Line Marina Resort on Lake Conroe, Conroe, Texas. I was working in the phone room or call center. My job was to try to call possible customers and get them interested in the resort. About ten people worked in the phone room at this time, including Melissa Trotter. Robert Graham was our supervisor. 
2. Around November of 1998, Melissa began receiving phone calls that seemed to upset her. At first, she would hang up real abruptly. I'd ask her during a break what was going on, and she'd say something like, "men." I was pretty sure the problem wasn't customers, but Melissa did not say who was bothering her. 
3. As I recall, it was not too long before the time Melissa disappeared, she got phone calls that really upset her. Cora, who also worked in the call center, would patch the phone calls through to Melissa. Melissa broke down and started crying. She said "he won't quit calling." Cora patched another call through, and I picked up Melissa's phone. 
4 The caller thought Melissa was on the line and started saying completely foul things. He said: "You're a fucking bitch," and swore he was "going to choke the life out of me," meaning Melissa. He went on, saying that he was going to get her back for what she did to him. I remember him saying, "I'll strangle you: I'll choke the life out of you. I'm going to fuck you while you die." I started yelling back and he realized Melissa was not on the phone. That was the first phone call I took.
"I'll strangle you: I'll choke the life out of you. I'm going to fuck you while you die." That is exactly what Anthony Shore (nearly) did to Amy Lynch about the time of Melissa Trotter's disappearance. Amy Lynch left Anthony Shore because he nearly strangled her to death during sex.

Later in Lisa Robert's affidavit:
8. While Melissa was working at League Line, this one guy picked her up three times, as I remember. The first time Melissa seemed O.K. about it. The second time he came to get her, Melissa said "Oh god, oh god." Nickie Mains and I confronted her as the guy was pulling up. I said she did not have to get in the car with anyone she did not want to. I told her I'd get my boyfriend. Melissa said, "You don't know what that will do: that'll cause problems." 
9. The night guard would not let the guy past, so he parked on the side of the road outside the entrance. The first two times he came to get Melissa, he parked in the dark. The third time he came to get Melissa, she was scared to death. We told her not to go, and when she insisted she had to, we made her promise to call us when she got home. She called forty-five minutes later. On this third occasion, this man parked in the light and I was able to see him and his car. He was driving a pick-up, full size, and older model, light blue in color. I did not know who the person was and Melissa did not tell us his name. 
10. I know who Larry Swearingen is. I went to school with him. I had at least five classes in junior high and high school with him, including auto repair and a math class. The man who picked Melissa up was not Larry Swearingen. The voice on the phone was not Larry Swearingen's voice.
The police decided that the scary guy who picked Melissa up from work was Robbie Grove, who is Larry Swearingen's cousin. When, much later, Lisa Roberts was shown a picture of Robbie Grove, she identified him as the scary person who picked up Melissa from work that night. It was dark outside, but she said the scary guy was standing in the light. The police dismissed Robbie Grove as a suspect. The DNA on the blood flakes found under Melissa's fingernail did not match Grove's DNA.

Perhaps it was not Robbie Grove that Lisa Roberts saw picking Melissa up that night. Perhaps it was instead someone who looked quite a bit like Robbie Grove. Someone, for example, like Anthony Shore.

That's Anthony Shore on the left, around the time of his arrest. That would be five years after Lisa Roberts saw the scary guy who waited for Melissa outside her place of work. That's Robbie Grove on the right. The picture is from his MySpace page. You need to mentally remove a decade or so from his image for a temporally-unbiased, head-to-head comparison with Anthony Shore.

It seems to me that Anthony Shore and Robbie Grove could easily be confused in the dark. Lisa Roberts may have seen Anthony Shore. I can understand why, when shown a picture of Robbie Grove years later she thought he could have been the man she saw that night.

One of the mysteries surrounding the murder of Melissa Trotter is her location between the time of her disappearance on 8 December 1999 and the dumping of her body within days of its discovery. Someone had held her captive for two to three weeks. During that time, she had been well fed. Beyond the ligature around her neck, there was no evidence she had been bound. Her body showed no obvious sign of injury other than those associated with the strangulation.

Whoever murdered her possessed her for two to three weeks, and Shore liked to possess his victims. From his confession to the rape of Selma Janske:
Hell, I did this, at this time I, it's a sexual union, had something to do with it. The more I'm thinking in retrospect, that it's having to do with possession of a person. Making them ... do ... things.
Anthony Shore had engaged in several behaviors consistent with possessing someone in the fashion that Melissa was held captive.

He left his daughters alone in the house. To insure they did not leave, he installed deadbolts on the doors, requiring keys both inside and out. He glued the windows shut.

He routinely drugged his daughters by putting Benadryl in their hot chocolate.

He bound Selma Janske, Diana Robellar, and Dana Sanchez with duct tape. Such a binding would not leave ligature marks.

On multiple occasions he drugged his first wife, Gina Worley, with Rohypnol, the date rape drug.

On one occasion, his third wife, Pauline Cody, found a suspicious powdery substance in the refrigerator. Shore told her the drug belonged to a friend and that Shore was going to help that friend use it on "a woman they all knew" so that Shore could "take advantage of her." That was the night Pauline awoke to find Shore choking her as he was raping her. She left him after that.

Given his experience with jailing his daughters, binding his victims, and drugging women, Shore was well experienced and well equipped to keep Melissa Trotter captive for several weeks.

The question naturally arises as to where Shore may have held her captive. Assuming he killed Melissa Trotter, I believe I know where. I believe he kept her in his own house on the 700 block of East 18th Street, slightly north of downtown Houston. I realize that Amy Shore was living there around that time, but I wonder if she was actually there at that specific time. I note this paragraph from Strangler, discussing Shore's dejection after Amy left him because he attacked her.
Tony Shore's downward spiral continued unabated. He spent Christmas alone, he had not heard from either of his daughters, and his divorce from Amy was pending.
So neither Amy or either of Shore's daughters was with him around Christmas of 1998 when Melissa Trotter was missing. Shore's daughters had gone to California earlier and would never return to him. I don't know where Amy was, but she was apparently not at home around Christmas of 1998.

Possibly relevant also is what Pauline Shore found when she moved into the house after Amy Lynch moved out for good. Some of the walls inside the house had been recently repainted, and brown paper was on all the windows. Shore explained that he was repainting the house in exchange for rent and that the brown paper was to keep the paint off the windows.

Perhaps.

(To be continued)