Friday, August 26, 2011

The Absolutely Astounding Case of Larry Swearingen: Part 4

Somewhere I said that this was going to be a three part series. It won't be the first time I was wrong. Parts 1, 2, and 3 are here, here, and here. Those of you unfamiliar with the case should read those posts. The rest of us will wait here.

Welcome back. We had tea and crumpets while you were gone. Sorry we didn't save any for you.

After Larry Swearingen was convicted of murdering Melissa Trotter, based on overwhelming circumstantial evidence, ...

And after Swearingen had spent a decade or so in prison, ...

And after Dr. G.M. Larkin had published an unofficial addendum to the State's autopsy report, and therein proved beyond doubt that Swearingen must be factually innocent, ...

And after Dr. Joye Carter, the original medical examiner, agreed with Dr. Larkin that she had been wrong and Swearingen is without doubt factually innocent, ....

Then an acting medical examiner of the jurisdiction chimed in. He too agreed that Larry Swearingen is without doubt factually innocent. Here we go.

My name is Dr. Lloyd White. I am a physician licensed to practice medicine in the State of Texas. I am boarded in pathology and specialize in forensic pathology. I was the Chief Medical Examiner for Nueces County, Texas. I am presently a Deputy Medical Examiner for Tarrant County, Texas. ...

I have reviewed the report of the autopsy of the body of Melissa Trotter conducted on January 3,1999, by then Harris County Medical Examiner, Joye M. Carter, M.D. I have reviewed autopsy and crime scene photos depicting the body of Ms. Trotter. ... I have also reviewed Ms. Trotter's Medical Records dated November 23,1998, and the October 1, 2007, addendum report of Dr. Gerald Larkin, as well as the October 31, 2007 affidavit of Dr. Joye M. Carter regarding autopsy findings in Ms. Trotter's case. The following opinion is based on the foregoing information:

1. I concur with the conclusions that Dr. Carter reached in her October 31, 2007 re-evaluation of her autopsy findings. As she indicates throughout her affidavit, findings made pursuant to her internal examination of the body support the forensic conclusion that Melissa Trotter's body was left in the woods within fourteen days of the discovery of the body on January 2, 1999, in the Sam Houston National Forest.

2. I agree, as well, with Dr. Larkin's conclusion that the forensic evidence in this case indicates that the body was in the Sam Houston National Forest for a shorter period than fourteen days. For reasons set forth by Dr. Larkin in his October l, 2007 addendum, the description of internal organs -- the pancreas, liver, spleen, gall bladder and gastro-intestinal tract -- indicate that the body was left in the woods at on or about December 23, 1998 at the soonest, and probably left there no sooner than December 27 or 28, l999.

3. Again, for reasons that Dr. Larkin gives in his October 1, 2007 addendum, the external appearance of the body also supports the conclusion that Ms. Trotter's body was exposed in the wood for several days only, and not for two or three weeks; so does the remarkable fact that Trotter weighed 109 pounds at her doctor's office according to the November 23, 1998 record, while her clothed body weighed 113 pounds at autopsy and the nude weight was 105 pounds.

4. In addition to the written findings Dr. Carter made, autopsy photos of several organs deserve attention.
a. Attached as exhibit 'A' is the photograph of the spleen Dr. Carter removed during autopsy. The spleen is an organ that contains many vascular spaces. The spleen can contract and enlarge, but is a relatively firm, spongy organ when living. It performs the important physiological function of removing red blood cells that are old or damaged and essentially worn out. After death the spleen autolyzes rapidly.
The spleen removed from Trotter has been dissected and there is a longitudinal incision through the spleen's capsular surface ... The edges of the incision are sharp. Autolysis appears to be minimal. The photograph of the spleen has the appearance of splenic tissue taken from a recently deceased individual. The spleen obviously has not liquefied and disintegrated as is typical in individuals who have been dead for several days.

b. Photographs of Trotter's heart show that the muscle is still red and relatively fresh looking. There are several long incisions and several shorter ones. The edges of the incisions are sharp. ... Again, the appearance of the heart is what one would expect to find upon autopsy of a recently deceased individual.
5. Autopsy photos of internal organs are consistent with the description of organs and the degree of decomposition found in the autopsy report. The photographic evidence strongly supports the conclusion that Ms. Trotter's body was left in the woods at least one week after Mr. Swearingen was incarcerated on December 11, 1998, and probably more than two weeks after.
I find Dr. Lloyd White to be particularly insightful. That's because in a follow-up report, he addressed the issue of the stomach contents that are so near and dear to my heart. It was Dr. Carter's testimony regarding the stomach contents that caused me to decide, as a vicarious skeptical juror, that Larry Swearingen must have been innocent. Here's what the esteemed and learned Dr. Lloyd White had to say about the stomach contents.
In bodies that have been exposed for more than several days under conditions in which Ms. Trotter's body was found, the stomach wall autolyzes [eats itself] and perforates, causing the contents to spill into the surrounding peritoneal space. This is because the stomach contains digestive juices one of which is hydrochloric acid. Upon death, when the tissues of the stomach are no longer producing protective secretions, these juices -- gastric enzymes and acids -- rapidly eat away the stomach wall causing the organ to disintegrate. Even in living persons, the gastric wall will perforate in a similar manner if subjected to an episode of ischemia [insufficient supply of blood]. ...

The State and the courts have argued that the Dr. Carter's findings upon dissecting the stomach support the State's theory that Ms. Trotter died at least twenty two days and as much as twenty-five days before her body was found. According to both the State and the courts, the stomach contents contained the remnants of a meal that Ms. Trotter ate either at the College Campus or at McDonald's restaurant on the day she disappeared. These allegations have always been, and remain, pure speculation unsupported by any of the facts in evidence.

Autopsy photographs of the stomach show chyme mixed with some bloody fluid that is probably due to the dissection. The description Dr. Carter gave at trial of the stomach contents is consistent with the ingestion of a wide variety of foodstuffs commonly served at home and at numerous institutions. Dr. Carter described pieces of white meat, some green vegetable material, and some white material that she thought might have been from a potato. Dr. Carter was unable to say what animal the white meat was from or what plant was the source of the green substance. There is, in fact, nothing at all about the stomach contents to suggest, much less conclude beyond reasonable doubt, that Ms. Trotter's body was exposed in the Sam Houston National Forest for more than two or three days.
Now that's high quality forensic medicine in action.

Then the chief medical examiner of Galveston County, Dr. Stephen Pustilnik, weighed in. He agreed with Drs. Larkin, Carter, and White that no way, no how could Melissa Trotter have been dead very long prior to the discovery of her body.  Dr. Pustilnik also addressed a Hail Mary pass being offered up by the State: the possibility that Melissa's body had been refrigerated for some reason by an accomplice.
In summary, without prior refrigeration, the deceased was killed within reasonable certainty five to seven days prior to her discovery. ... In addition, the absence of mummification and dessication to the ears, as well as to the fingertips, is consistent with their not having been prior prolonged refrigeration of the deceased.
Given the now overwhelming, incontrovertible [dare I say] proof of Larry Swearingen's innocence, a number of substantial issues arise. I'll discuss only a few of them here.

First, Dr. Joye Carter clearly tailored her testimony to conform with the State's theory of the case. She selected the 25 day post mortem interval not because of the science for which she was responsible, but because it corresponded with the date Swearingen was last seen with the victim. She described the stomach contents not based on her examination, but based on what she had been told about the victim's alleged last meal. She was presented as an expert with no dog in the hunt, but that representation was far from the mark. She compromised her intellectual integrity to satisfy the State.

Unfortunately, such inexpert testimony is all too common, on both sides.  It is extremely rare, however, when the expert will admit to his or her error. I therefore again congratulate Dr. Carter for her effort to correct a terrible injustice. However, I note again that she cheapened her that effort by not accepting responsibility for her mistakes. She blamed the attorneys and parties unknown.

Second, the case shows the danger of target fixation. The State had their man and no amount of evidence would deter them gaining a conviction. So convinced were they in their righteous indignation that they simply assigned no significance to the sudden appearance of Melissa Trotter's body. Though they had searched the area three times previous, without sight nor smell of the body, and though even to a lay person the body could not have appeared to be a month dead, they simply pressed on. They apparently did not even interview the searchers to determined if any had looked specifically in the spot where the body was found.

Third, the case shows that hair evidence experts are not. As if frequently the case, the hair matching evidence in this case sucked. Recall that the State claimed to have recovered two of Trotter's hairs from Swearingen's vehicle and claimed further they could tell the hairs were forcibly removed. [Deep sigh.]

Forth, someone planted evidence at Swearingen's residence. Recall that Trotter was strangled with one leg from a pair of pantyhose. Recall also that the other leg of pantyhose was found at the Swearingen's trailer. That's pretty damning evidence. As a juror, that would have for me been the most damning piece of evidence. Take note, though, that the other leg of the pantyhose was not found until the third search of Swearingen's trailer. The damning evidence showed up suddenly, just as the body did. The police searched and searched and found nothing. The suddenly, viola, just what they were looking for.

More specifically, after the third search of Swearingen's trailer, the police said they were given the other leg by the landlord, who found it while cleaning up the mobile home. Yet another expert [and I must now use that term quite loosely] identified the leg as a positive match to the one tied around Trotter's throat.

This case, I'm sad to say, is not all that unique with respect to its over-the-top confirmation bias. What is unique is that such incontrovertible evidence of innocence (other than DNA) surfaced after the conviction.

And still I'm not done with this three four five part series. The people of Texas still want very much to execute Larry Ray Swearingen. We'll talk about that next, and maybe wrap up this sordid tale.

Assuming we don't care if we execute yet another innocent person.

Part 5 is now available.

Wednesday, August 24, 2011

The Absloutely Astounding Case of Larry Swearingen: Part 3

The people of Texas nearly put Larry Swearingen to death this month for the kidnapping, attempted rape, and actual murder of Melissa Trotter.

In Part 1, I laid out the (nearly) overwhelming case against him. In Part 2, I provided further evidence of his moral turpitude. Then I explained why I would have voted Not Guilty, and fought hard to convince my fellow jurors to agree with me.

You should read those parts first if you are to understand this final post of the series. Part 1 will lead you to Part 2 which will lead you back here. I'll wait.

Welcome back.  While you were gone, I was singing Infinity Bottles of Beer on the Wall.  %% Take one down, pass it around, infinity bottles of beer on the wall. %%

The issue that caused me great trouble as a vicarious juror was that the ME, Chief Medical Examiner Joye M. Carter, M.D., FCAP, testified that the body had been dead approximately 25 days before it was discovered on January 2. That coincidentally (I'm sure) placed the approximate date of death on December 8, the day that Larry Swearingen was seen with her, the day he had a date with her.

That bothered me a little.

The ME also testified that "Trotter's stomach contained not only what appeared to be a form of potato, but also what appeared to be chicken and a small amount of greenish vegetable material."

That bothered me a lot. I don't believe it is close to possible that the food would have been preserved for 25 days. I think that means she was killed not too long before she was found. Since Larry Swearingen was arrested on 11 December on unrelated charges, I concluded he couldn't have killed her.

It's now time to see if I screwed up.

Almost 10 years after the ME wrote her autopsy report, Dr. G.M. Larkin (of North Carolina, not Texas) prepared an addendum to the ME's autopsy report. Dr. Larkin's work has no particular legal standing. We consider it here for its scientific insight. Dr. Larkin made 21 points. I repeat or paraphrase them below.
  1. Because Mr. Swearingen was incarcerated on December 11 and has remained in prison thereafter, the following forensic conclusion not only is supportable, it cannot be reasonably questioned , Someone else, not Mr. Swearingen, left the body of Ms. Trotter in the Sam Houston National Forest where it was found on January 2.
  2. December 23, 2007, is the soonest that Trotter's body could have been left in the woods, which is to say 12 days after Mr. Swearingen was incarcerated. ... Indeed, undisputed forensic evidence, namely the external appearance and the description of the internal organs and tissues, and photographs of resected organs strongly support a date as late as ... nineteen days after Mr. Swearingen was incarcerated and three weeks later than the date the State maintains Trotter's body was left in the Sam Houston National Forest.
  3. (In arriving at my conclusions, I have considered the weather.)
  4. All pathologic diagnoses are based on the fact that changes in death are predictable, cumulative and irreversible. Changes are additive. (Also, I have  accounted for the weather.)
  5. (I have accounted for the weather.)
  6. Dr. Carter's description of specific internal organs is sufficient to establish with certainty that Trotter's body was not left exposed in the woods until well after December 11, the date Swearingen was incarcerated.
  7. If Trotter was killed in the woods or her body left in the woods near the time of death, the pancreas would not have been present in the condition described by Dr. Carter unless exposure in the Sam Houston Forest occurred after December 28.
  8. Pancreatic cells produces digestive enzymes. upon death, metabolic processes that prevent the enzymes from acting on the pancreas' own tissue cells. Liquefaction of the pancreas to the point it looses internal structure and becomes a sludge incapable of being sectioned consequently may occur within 24 to 48 hours even under hospital or morgue conditions where the environment and temperature are controlled.
  9. The condition of Trotter's spleen at autopsy supports the conclusion that Trotter's body was not exposed in the forest until well after Mr . Swearingen was incarcerated. Like the pancreas, the spleen autolyzes [digests itself] relatively rapidly even under hospital and morgue conditions. The autopsy report's description of the spleen, however, fits that of tissue from a recently deceased person. The ... organ has the appearance of tissue from a recently (3-4 days) deceased person.
  10. Dr. Carter's examination of the liver is remarkable evidence that Trotter's body had not been in the woods for more than ten days and in all probability for far less time. The liver is a large organ that loses integrity and autolyzes [digests itself] relatively rapidly, forming gas bubbles as it does, which makes it crepitant, a bit like bubble wrap. However, Dr. Carter was able to remove the liver and section it, using essentially the same methods used upon the pancreas. Microscopic examination failed to reveal perforations due to gas bubbles ...
  11. Dr. Carter's examination of the gastrointestinal tract strongly confirms the conclusion that Trotter's body was exposed ... for ten days or less. Dr. Carter found the esophagus intact. She dissected the stomach, and was able to rinse and examine the gastric mucosa. Dr. Carter also found both the large and small intestines intact and un-perforated. Further, the mucosal lining of the intestines was still present at autopsy.
  12. Mucosa is a fragile tissue that readily decomposes under temperature conditions such as those reported ... The gastric mucosa and intestinal mucosa do not decompose in a living organism due to the protective enzymes that these tissues secret while functioning. After death, these tissues quickly disintegrate. In Trotter's case, the conditions in which the mucosa were preserved allowed Dr. Carter to identify them, examine them for pathology, and subject them to mechanical processes such as dissection and rinsing. It is a medical certainty, that these tissues would not have retained the integrity seen at autopsy unless the body had been left ... less than ten days prior to the date of recovery. Indeed, it is very unlikely that Dr. Carter would have found these tissues in the condition described at autopsy unless the body had only been exposed in the woods for substantially less time -- a matter of 3 to 4 days. ...
  13. Dr Carter found that the breast tissue was "firm and intact." She was able to remove breast tissue, section it serially and examine it for pathology. The condition of this tissue corroborates conclusions that follow from Dr. Carter's description of internal organs.
  14. Dr. Carter's descriptions ... and photographs depicting the external appearance of the body also supports the conclusion that Trotter's body was in the Sam Houston National Forest no more than ten days at the very longest. ...
  15. Furthermore, crime scene reports indicate that the body did not have an odor even though daily high temperatures from December 29, 1998 through January 2, 1999 consistently approached 70 degrees Fahrenheit and average temperatures were near 60°.
  16. Dr. Carter's ... reported that the weight of the body clothed was 113 lbs while the nude body was 105 lbs. Medical records show that approximately two weeks before December 8, 1998, Trotter weighed 109 pounds at her doctor's office. The weights are remarkable in that they demonstrate very insubstantial or no loss in body weight, Even if a corpse is not scavenged, and there was remarkably little scavenging in this case, a body will lose up to 90% of its weight, in less time than 25 days, when exposed under temperature conditions prevailing in the Conroe area ...
  17. Dr. Carter states that the brain was in a semi-liquid state, and states further, that upon removal, there was complete loss of normal tissue architecture. However, the report shows that the brain retained sufficient integrity even upon removal to enable Dr. Carter to make judgments regarding the presence or absence of subdural and subarachnoid hematomas. Dr. Carter was also able to examine the parenchyma and exclude preexisting lesions. Her report indicates, too, that the ventricles were discernible and normal in appearance.
  18. Under conditions prevailing in the Conroe area were the body was found, the brain in this case would have completely liquefied in a matter of days. If Trotter's body had been placed in the woods as late as December 23, 1998, Dr. Carter would not have been able to remove the brain for examination; it would have been a soup incapable of being examined for lesions or abnormalities. ...
  19. Positive findings by autopsy establish that Trotter's body was not left exposed ... until December 23, 1998, at the very earliest. Besides positive findings, the absence of expected decompositional changes indicates exposure well after the date on which Mr. Swearingen was incarcerated. Bloating, for example, normally occurs after two or three days. It distorts breast and genital tissues, causing them to inflate grossly out of proportion. It also causes perforation of the stomach and intestines. However, Trotter's body did not exhibit any of the distorting changes caused by bloating and her gut was intact.
  20. In wilderness areas ... considerable scavenging by birds and mammals take place, but the body from the neck down did not exhibit any insults that could clearly be attributable to animal activity even though crime scene photos show that the body was found with torso exposed, as were the upper extremities, which again, did not exhibit any scavenging at all.
  21. The following forensic conclusion is therefore not reasonably debatable amongst competent forensic pathologists: Without question, Mr. Swearingen was not the person who left Ms. Trotter's body in the Sam Houston National Forest.
In summary, Dr. Larkin claims the following features of Mellissa Trotter's corpse preclude any possibility that she was killed earlier than December 23, 12 days after Swearingen had been incarcerated:
  • Pancreas had not liquefied
  • Spleen had not autolyzed (digested itself)
  • Liver had not been perforated by its own bubbles
  • Lining of gastrointestinal tract still retained its integrity
  • Breast tissue still firm and intact
  • Body has lost only 4% (not 90%) of its weight!!
  • Brain was not liquified
  • Body showed no signs of bloating; it did not smell
  • Body not scavenged by animals, though torso and arms exposed 
Dr. Larkin then all but dares any reputable forensic pathologist to challenge his conclusion that Melissa Trotter was killed after Larry Swearingen was incarcerated. While I'm distressed that he did not mention anything about the stomach contents, I'm unwilling to dispute him.

So too was the original pathologist, Dr. Joye Carter. She had, by the time Dr. Larkin wrote his addendum to her autopsy report, moved on to become the Chief Forensic Pathologist for Marion County, Indiana. She actually prepared an affidavit agreeing with Dr. Larkin that she had incorrectly placed the date of death way too early. I include a few segments from her affidavit below.
At trial in Mr. Swearingen's case I was asked if I had formed an opinion about the date of death in this case. Review of my trial testimony shows that I testified that I had formed an opinion that the date of death was 25 days prior to disappearance. As reflected in my testimony, this opinion was based primarily on the external appearance of the body. ...
Review of my trial testimony reveals that I was not asked by prosecutors, or by defense counsel, to address the significance of my internal examination of Ms. Trotter's body. Nor was I asked to address in detail the question of how long Ms. Trotter's body had been left exposed in the Sam Houston National Forest. ...
For the purpose of making this statement, I have reviewed ... several pieces of forensically important information that ... were not made available to during trial or pretrial proceedings. This information includes ... medical records giving Melissa Trotter's weight before she was reported missing ...
The medical record shows that Ms. Trotter weight 109 pounds at her doctor's office on November 23, 1998, two weeks before the date she was reported missing. ...
The forensic opinions, herein, address the significance of autopsy findings made during the internal examination of Ms. Trotter's body in the context of the foregoing information. They represent what I would have testified to at trial if I had been provided this information and if attorneys for the state and defense had asked me to address the significance of findings made pursuant to the internal examination of Ms. Trotter's body. ...
... The autopsy report reflects that internal organs were in their usual anatomic positions. Several of these organs, including the pancreas, the spleen and the liver, were dissected out, sectioned, examined for pre-existing pathology, photographed and described. Organ weights were near or within normal range.
Pancreas, spleen, and liver tissues is know to autolyze [self-digest] quickly. At room temperature, it is not unusual for these organs to liquefy within days. ... These internal findings support a forensic opinion that the body had not been exposed more than two weeks in the forest environment.
... The gastrointestinal system was found intact. Furthermore, gastric mucosa, a fragile tissue which decomposes quickly, was still present and was rinsed and described.  ...
The weight of the Trotter's corpse at autopsy increases the level of confidence that can be placed in the forensic conclusions drawn from findings made during the internal examination of the body ... and supports a forensic opinion that Ms. Trotter's body was left in the woods within two weeks of the date of discovery.Well that certainly wasn't easy for her to write. I give her enormous credit for attempting to correct a grievous error, but I give her a low score for her efforts to explain away the error. She blamed the prosecutor and the defense attorney and everyone else as well for not telling her about Trotter's weight. (Assuming the body loses about 90% of its weight in 25 days, perhaps she believed Trotter weight 1050 pounds before she was killed.)
Well, that certainly wasn't easy for her to write. I give her tremendous credit for attempting to correct a grievous error. I give her substantially less credit for her efforts to put the blame on the attorneys for not asking the right questions, or for all the anonymous people who failed to tell her about Trotter's pre-death body weight of 109 pounds. Given that a body can lose 90% of its weight in 25 days, perhaps Dr. Carter believed Melissa Trotter weighed 1050 pounds just before she was killed.

Dr. Carter also claimed she was asked only about the external condition of the body. No way, I say. I remember specifically that she testified about the stomach contents, and I'm pretty sure that those are on the inside. And by the way, if the body loses 90% of its weight in 25 days, I'm guessing the stomach contents lose at least that much. In other words, I'm going to claim my suspicion about the stomach contents was correct.

We're not yet done with the case of Larry Swearingen. We still need to discuss why the people of Texas intended to execute him, even though it's now clear he could not have killed Melissa Trotter.

Stay tuned.

Part 4 is now available

Saturday, August 20, 2011

Scenes from The Speedfather

Embedded below is a pre-release clip from the upcoming movie The Speedfather.

The Speedfather is a true story of government, corporate, and judicial corruption organized not around gambling, prostitution, or drugs, but around the more profitable business of traffic ticket shakedowns in Maryland.

The Speedfather stars the Optotraffic DLS-10S automated speed enforcer as The Speedfather. The city governments and the courts play the well-rewarded henchmen. Will Foreman plays the naive fool who dares challenge the system.

In this scene, Will makes an appearance in court to fight 15 of the 60 tickets he has been ordered to pay by The Speedfather. Will has the two photos the law says must be accompanied by every ticket. Will has the citation itself signed by a police officer certifying the photos prove Will was speeding, though they clearly do not. Will intends to show that if you overlay the two photos, taken at slightly different times, the photos in fact prove that he was not speeding.

Will intends to discredit The Speedfather and thereby bring the entire bunko scheme to its knees.

And without further adieu, I bring you the soon-to-be-released trailer for The Speedfather.

The carnage you see in the closing moments is the Maryland justice system.

Friday, August 19, 2011

The Absolutely Astounding Case of Larry Swearingen: Part 2

Larry Swearingen was within weeks of being executed by the people of Texas for the kidnapping / rape / murder of Melissa Trotter. The evidence against him is seemingly overwhelming. Nonetheless, I claim that, had I been on his jury, I would have (hopefully) voted Not Guilty.

To understand what follows in the post, and the one remaining post in the series (when it's up), you really should read the initial post. I'll make it easy for you. Just click on the hypertext button below, it will take you to the initial post, and at the end of that post, there will be another hypertext button to bring you back here. It will be easy, convenient, and well worth your time.  I'll wait here.

[Killing time, he said inappropriately.]

Okay. You're back.  Let's continue. 

In this post, I'm going to cause you to dislike Larry Swearingen more than you already do. Then I'm going to tell you why I would have (hopefully) voted not guilty. In the next post, you'll find out whether or not my hunch was right.

Court TV did an multi-part series on Larry Swearingen. As part of that series, they summarized his abusive treatment of women prior to the case of Melissa Trotter.  I found the summary on the Charles Smith Blog. I repeat it below.
But Swearingen says the drugs had an adverse effect on his relationship with his family and his commitment to school. By his junior year, his girlfriend was pregnant with his son. He dropped out of school to work various odd jobs.

The relationship did not last, and shortly after his son's birth in 1990, Swearingen married a woman who later gave birth to their daughter.

But the relationship quickly soured as Swearingen's violent streak emerged, according to the woman.

"[Swearingen] would wait for her at the door of their home and when she arrived he would begin hitting her, and sometimes strangled her with hands," court documents state.

After the two separated in 1992, according to the woman, Swearingen showed up at her job and harassed her. During Swearingen's penalty phase, the woman testified that she never reported the incidents for fear of losing custody of her daughter.

In one instance, Swearingen allegedly abducted her at knifepoint and drove her to a wooded area, where he raped her.

Another ex-girlfriend testified at his sentencing that she met him in 1994 at a Florida strip club and moved back with him to Texas. When she told him she planned to leave for California, he tied her up and threw her in a closet, she said.

He then allegedly beat and threatened her with a knife as both her child and Swearingen's son played in the yard.

The woman testified that he freed her when his mother arrived. She fled the state and did not return to press charges or tell her story until her appearance at Swearingen's sentencing.

Less than three months before 18-year-old Melissa Trotter disappeared, another ex-fiancée complained to police that Swearingen had assaulted and raped her.

According to court documents, Swearingen allegedly broke into her home, wrestled her to the ground, stuffed her mouth with newspaper and handcuffed her before beating and raping her.

One week later, the woman testified, Swearingen fired a bullet through her window and forced her into his car at gunpoint.

"[Swearingen] made [her] drive to a location within the Sam Houston National Forest that was approximately one mile from where Melissa's body would someday be discovered," court documents state. "She was able to appease Swearingen, and he eventually let her go."

Swearingen was arrested on the allegations and released on bond.
That ought to do it. Not only does the evidence make him look guilty as hell, his history of abusing women reinforces the certainty of his guilt. Also, it turns him into an utterly despicable character that we don't have to feel sorry for when we send him off to death row. Who in their right mind would consider releasing such a person back into society? Who would not be compelled to vote Guilty?

I assure you it can be no fun trying to fulfill your juror's oath under such a circumstance. I argue, however, that if you believe the State has not proved its case beyond a reasonable doubt, you have a moral and constitutional obligation to vote Not Guilty. You must do so even if you believe the defendant might be guilty; even if you believe the defendant is a sleazeball.

I'm not naive. I know I'm in the minority. I know from experience how people behave behind the jury room door. On this point, though, I will not budge. If you are a prosecutor and you impanel me on the jury, and you have me take an oath, you had better prove your case to me beyond a reasonable doubt. If you do not, I will not save you. I will vote Not Guilty. I will attempt to convince my fellow jurors to vote Not Guilty. And, if I cannot compel all of them, I will hang the jury.

Furthermore  ....

If I believe the defendant is factually innocent, I might actually volunteer to assist the defense in the retrial, assuming the State decides to re-try him, which they will. I've been known to do that.

So what's my beef with the State's case in the trial of Larry Swearingen? I guess it's time to come clean.

I'm really bothered by the testimony of the medical examiner. First thing that hit me was that the ME estimated the time of death as approximately 25 days prior to discovery.  That's a bit too convenient and a bit too cozy. Trotter was last seen with Larry Swearingen on December 8. Her body was discovered on January 2. That's 25 days. That's coincidently the same number of days the ME testified to, while cautioning us that it was an approximate number. (I'm inferring this from the appellate decision.)

When someone has been dead for about a month, establishing time of death to a specific day is not possible. A less biased estimation would have been "about a month."  That still would have made it possible that Swearingen had murdered Trotter, and it has the added benefit of being intellectually honest. Assuming the ME instead said "approximately 25 days" (as indicated by the appellate decision), that's a red flag to me. It tells me that the ME is willing to tailor her testimony to match the prosecution theory. It tells me I can't trust her to tell me the unvarnished truth. I don't like that.

That alone certainly would not make me believe that Larry Swearingen might be innocent. I concluded he was innocent because of something else the ME testified about. The ME testified that "Trotter's stomach contained not only what appeared to be a form of potato, but also what appeared to be chicken and a small amount of greenish vegetable material."

Uh, oh.

I realize most people believe that is evidence of Swearingen's guilt. After all, Trotter was killed before she could digest her last meal, and she met with Swearingen after 1:30 PM on December 8 when he bought some tater-tots, and the ME probably saw the remains of the tater-tots. That's why the prosecution brought it up. The jury bought it hook, line and tater tot.

I certainly could be wrong on this but I don't believe that stomach contents are going to be recognizable 25 days postmortem, assuming any contents remain at all.

Try this. Throw a few tater-tots in the woods, and some chicken, and maybe some greenish vegetable material, and come back in 25 days. Do you think you'll find anything recognizable? Do you think you'll find anything at all?  I don't.

Perhaps, you may claim, the body actually protected the food from decaying. As a lay jury person, I would disagree. The stomach is not designed for food preservation or long term storage. It's not a tupperware container. It's a garbage disposal. It is designed to accelerate the decay of food. The stomach is a place of vicious acids and conspiring enzymes that won't go away simply because someone dies. Not only that, the body itself will decay substantially by 25 days postmortem, if left exposed and unrefrigerated. The same microbes that are consuming the body are not likely to eat around the food in the stomach.

As a juror, I would have disagreed with the ME. I would have concluded that Melissa Trotter did not die sometime near December 8. I would have concluded she died much closer to January 2 than December 8. Then I would have become even more troubled by the ME's approximate but convenient 25 day estimate, and dismissed her completely as an untrustworthy witness, one more eager to do the State's bidding than to tell me the truth.

And then I would have argued to my fellow jurors that they should remember that the body was not discovered during the first three searches of the area, though the searchers had come within 20 feet of the spot she was eventually found. I would have stood at one end of the jury room and pointed to the far end, and then I might have said:
"That's about 20 feet. Now, if I'm a searcher, I assume I have another searcher on my left and another on my right, and we are spaced apart such that nothing will pass between us unnoticed. If there are bushes there, we'll peak in the bushes. If there's a tree, we'll look all around the tree. Heck, we'll even look up the tree. Now Texas is asking us to believe they searched the area not just once, not just twice, but three times and they never saw the body?  I'll tell you why they never say the body. Because it wasn't there. There was no body at that point. Melissa was still alive. She wouldn't be dead until later, until sometime shortly before the New Year."

"If they want me to believe the body was there during the three searches, they should have brought the searchers in to testify. I want to know how far apart they were spread. Was it 10 feet, 20 feet, 40 feet? They would have us believe it was 40 feet, wouldn't they, since the searchers allegedly came no closer than 20 feet to where she was found. That seems pretty far apart for a search team?"

"Why didn't they bring in the six searchers to testify? There could have been as many as six searchers who passed within 20 feet or so. It could have been one searcher passed on each side of the spot, two searchers per search, three searches, six searchers total. And no one saw, or smelled, a decaying body? Everyone coincidentally walked around the body, three times in a row?"
"They could have asked each of the searchers, do you just look for what's in the open or do you check behind rocks, and bushes, and trees, and woodchucks?'
"The reason this matters, of course, is that if Melissa Trotter died any time after December 11, then Larry Swearingen is absolutely, unassailably innocent. Remember?  They arrested him on December 11 for unrelated charges, and they have yet to let him out. We'll I believe it's time to let him out. Unless someone can explain to me what I'm missing, I have no choice but to vote Not Guilty. You can argue all the other evidence you want to argue, but unless you can convince me that she was indeed killed before December 11, I have no choice but to vote not guilty."
In the next post in this series, you'll find out if I would have been right.

Or wrong.

Part 3 is now available.

Tuesday, August 16, 2011

The Absolutely Astounding Case of Larry Swearingen: Part 1

Larry Swearingen had been scheduled for execution by the people of Texas just two days from today, on August 18, 2011.  I did not list him on my navigation page as scheduled for execution because he had already been granted a stay. I took a peek at his case nonetheless, and then another, and then another.

And then another.

I hereby declare that the case of Larry Swearingen is absolutely the most astounding criminal case I know of, and I know of a lot. I'm not going to just give everything away, however. I'm going to commit the grievous writer's sin of burying my lead. I'm going to tell his story in three parts and keep the surprise ending for the last part. You're welcome to come along for the ride.

In this part, I will provide the summary of Larry Swearingen's case from Swearingen v. State (2003), one of his many appellate court decisions. 
The evidence, viewed in the light most favorable to the State, shows that Swearingen became acquainted with Trotter on Sunday, December 6, 1998, talked with her at length, got her phone number, and made plans to see or talk with her again the next day. The next day, she failed to show up for lunch after Swearingen had bragged to his coworkers about his plans to have lunch with Trotter. His coworkers teased him about being stood up even after he had told them that he called Trotter and she said that she had been taking a test. Swearingen appeared to be angry the remainder of the day.
Later that evening, while using his truck to help transport some furniture, Swearingen commented to Bryan Foster and William Brown that he was going to meet a young lady named Melissa for lunch the next day, and if everything went right, he was going "to have Melissa for lunch." Brown noticed various items of clothing in the backseat of Swearingen's truck. Swearingen called Trotter from Foster's house and talked about meeting for lunch and helping her study for an exam.
On Tuesday, December 8, Swearingen met Trotter in the college library around 1:30 p.m., after Trotter had purchased some tater-tots from the school cafeteria. After sitting by the computers and talking amicably with Swearingen for some amount of time, Trotter left the library with Swearingen around 2 p.m. Trotter's vehicle remained in the college parking lot.
At 2:05 p.m., Swearingen returned a page he received and said he would have to call back later because he was at lunch with a friend.
Swearingen returned to his trailer sometime before 3:30 p.m. and left between 2:00 p.m. and 3:30 p.m., then returned again to the trailer sometime before 5:30 p.m., asked his landlord some questions, then left again between 4:30 p.m. and 5:30 p.m., to pick up his wife, Terry Swearingen, from his mother's house. His neighbor, seeing Swearingen's truck come and go, was not able to see through the tinted windows or see who got in and out of the truck.
When Swearingen and his wife returned home, a package of Marlboro Light cigarettes and a red lighter were on top of the television. The evidence showed that Trotter smoked Marlboro Lights and that neither appellant or his wife smoked.
That evening, Swearingen called Phyllis Morrison, a former girlfriend, and told her that he was in trouble and the police might be after him.
On December 11, Swearingen was arrested pursuant to several outstanding warrants, and while being handcuffed, said that his wrist and ribs were sore from a bar fight he had been in the week before.
Trotter's body was found in the Sam Houston National Forest on January 2, 1999, with a piece of hosiery still tied, as a ligature, around her neck. The state of the body's decomposition was consistent with having been in the woods approximately 25 days, supporting December 8 as the date of death. The location where Trotter's body was found was heavily wooded, secluded, and remote. The police had previously searched the area three times without finding the body. One had to be within twenty feet of the body before seeing it. Swearingen knew his way around this area; he had driven a date around the vicinity a few months earlier in his red pickup.
Trotter's body was on its back in a pile of bushes, her right arm was above her head and slightly to the left. Her top and bra were pulled up under her arms, exposing her breasts and back. There were creases on her back from her neck to her waist that could have been caused by laying on the debris in the bushes for a period of time after she had died. Her jeans were on and the fly was closed, but the right rear pocket was torn downwards exposing part of her buttocks. She was wearing red underwear. There were no scratches found on her exposed skin as one would expect to find if she had been dragged to the location. However, there was no soil on Trotter's shoes. She had only one shoe on; the other shoe was lying nearby.
Trotter died from asphyxia, lack of oxygen, by ligature strangulation. The nylon ligature was a section cut from a pair of pantyhose; the matching complementary portion of the pantyhose was found in Swearingen's trailer. There also appeared to be a sharp-forced injury on Trotter's neck that would have been inflicted before Trotter died, while her blood continued to circulate. Although there was subsequent animal activity and tooth marks on the neck organs at that area, a cut with a sharp object, like a knife, could not be ruled out.
The lack of defensive wounds, such as broken fingernails, and the difficulty of tying an elastic piece of nylon around a struggling victim, suggested that Trotter may have been unconscious when the ligature was applied. Although the state of decomposition made it difficult to determine, the left side of Trotter's face was much darker and at a more advanced stage of decomposition, which could be consistent with having sustained a bruise on the left side of her face. Evidence showed that animals are drawn to blood and a bruise would collect blood close to the skin's surface. There was also a deep bruise on Trotter's tongue, like a bite or a cut, consistent both with being struck under the chin, which would push the lower jaw up onto the tongue, and with biting down on the tongue while being strangled or suffering a seizure. There was also discoloration on Trotter's vaginal wall, a bruise that could have been caused by sexual intercourse on the day of her disappearance.
There were fibers found on Trotter similar to fibers from Swearingen's jacket, others similar to the seat and head-liner in Swearingen's truck, and others similar to the carpet in Swearingen's master bedroom. There were also fibers found in Swearingen's truck that were similar to fibers from Trotter's jacket. There were hairs in Swearingen's truck that appeared to have been forcibly removed from Trotter's head.
An internal examination revealed that Trotter's stomach contained not only what appeared to be a form of potato, but also what appeared to be chicken and a small amount of greenish vegetable material.
While in jail awaiting trial, Swearingen sent a letter to his mother that the evidence showed Swearingen had written, with the help of an English-Spanish dictionary and had his cellmate copy. The letter stated it was written by a girl named Robin who could identify Trotter's murderer as someone other than Swearingen and who knew the details of the murder. The translation of the letter is as follows:
I have information that I need to tell you about Melissa and Wanda. I was with the murderer of Melissa, and with the one that took Wanda from work. I am not sure what he did with Wanda, but I saw everything that happened to Melissa. He was talking to her in the parking lot. They went to school together is what he told me. "We drove for awhile, and then we went and had breakfast. I began to talk about sex when she said she had to go home." He hit her in the left eye, and she fell to the floor of her car. He took her to the wood and began to choke her with his hands at first, then he jerked (jalar is slang) her to the bushes. He cut her throat to make sure that she was dead. Her shoe came off when he jerked (slang) her into the bushes. Her jabear (cannot make out/ no such word in Spanish) was torn. I am in love with him, and I don't want him in jail. The man in jail doesn't deserve to be in jail, either. To make sure that you know, I am telling you the truth. She was wearing red panties when R.D. murdered her. He choked her with his hands first, but he used A piece of rope the truck from his truck; he had a piece of black rope that he used in his boat to anchor it, or something, he said. When he dragged her from the car, he put her in the shrub on her back. I know that I should turn him in, but he told me that he would kill me, too, and I believe him. He has told about this murder to 3 other women in the past, will tell you that he smokes, and he smoked with her at the college at 2:30 and drove a blue truck. His hair is blonde and brown and lives here. His name is Ronnie, but that is all I can tell, if you want more information, say it on paper and I will continue to write, but I want to come in.
After a bit of chatter, the appellate decision then summarizes the evidence in favor of the defense.
The only significant independent evidence contrary to the verdict is the testimony of Swearingen explaining that he left Trotter at the college, while she was talking to another man, and went to see his grandmother, and his grandmother's testimony that Swearingen picked her up and took her to the post office around 2:30 p.m. on December 8, 1998 and left her around 2:50 p.m. The State on cross-examination, called into question his grandmother's memory of the date and time and also the credibility of her statement as she had not informed the authorities of her knowledge of Swearingen's whereabouts while he languished in jail awaiting trial. The jury could have reasonably disbelieved both witnesses' testimony. We must defer to the jury's judgment of the witnesses' credibility.
Other evidence tending to disprove or dispute guilt consists of testimony that the forensic evidence would also be consistent with other theories. For example, there was testimony that Trotter's shirt could have been pulled up in the process of dragging her body to the bushes. However, there was also testimony that no scratches were found on the body as would be expected if exposed skin were pulled across debris on the ground. There was testimony that the creases on her back could have been produced by laying on her clothing for a period of time after she had died, indicating that her top was pulled up post-mortem, but there was other testimony that the creases on her back could have been produced by her bare back laying on the debris from the time she died. There was also testimony that the vaginal discoloration could have been caused by an infection that her medical records indicated she had suffered.
That's about it. The jury voted Swearingen guilty of murdering Melissa Trotter by ligature strangulation in the course of committing or attempting to commit kidnapping or aggravated sexual assault. It seems to me there was almost no evidence whatsoever to support the kidnapping and aggravated sexual assault components of the State's case. I would likely have voted Not Guilty on those counts.

The evidence for the murder count, however, was substantial though circumstantial. Billy Sinclair, author of Capital Punishment: An Indictment by a Death Row Survivor, summarizes the evidence against Swearingen thus:
  • Swearingen was the last person Trotter was seen with alive (she was seen with him by three witnesses)
  • Two of Swearingen’s friends overheard Swearingen in a cell phone conversation on December 7 arranging a dinner meeting with Trotter on December 8
  • Ms. Trotter had been in Swearingen’s truck where her forcibly removed hair follicles were found
  • Trotter was in Swearingen’s house on the day she disappeared, the house was later found in disarray, and Swearingen falsely reported a burglary of the residence
  • Documents belonging to Trotter were found near the residence of Swearingen’s parents
  • Trotter’s cigarettes were found in Swearingen’s house
  • Trotter was wearing the same clothes at the time of death as she wore on the day of her disappearance and a note given to her by a friend on December 8 was found in the back pocket of her jeans
  • Swearingen’s cell phone records placed him near the location where Trotter’s body was found
  • A half pair of pantyhose belonging to Swearingen’s former wife was found in Swearingen’s house while the other half was found wrapped around Trotter’s neck
  • Contents from the last meal Trotter ate on the day of her disappearance were found in her stomach -- a meal eaten with Swearingen
  • Swearingen lied about his whereabouts on the day of Trotter’s disappearance, fled from the police, tried to fabricate an alibi, and made false police reports
  • Swearingen asked others to lie on his behalf and told other people the police would be after him
  • Swearingen crafted a letter written in Spanish in jail designed to deflect attention from himself -- a letter which contained detailed specifics about Trotter’s murder which accurately corroborated the physical and medical evidence in the case
  • Swearingen reportedly told other inmates, “fuck, yeah, I did it” and his only objective was to escape the death penalty
  • Trotter’s body was found in an area of the Sam Houston National Forest where Swearingen had frequented
Sinclair suspects Swearingen is factually guilty: "I don’t know beyond a reasonable doubt whether or not Larry Ray Swearingen is guilty, but I do know there is a compelling body of evidence which is highly incriminating." I suspect most people wouldn't be as reticent about declaring Swearingen absolutely, unquestionably guilty.

However, ....

If I had been setting on the jury, I hope I would have had the courage to vote Not Guilty, and the persuasive powers to convince all the others to join me. I see something in the evidence just presented that makes me believe Larry Swearingen is factually innocent.

Had I been on the jury, I would have been pretty sure I was right, but not positive, about his actual innocence. If it turned out I was indeed right, and I voted guilty, I would have sent an innocent man to the needle. If it turned out I was wrong, I would have allowed my hubris to interfere with finding justice for Melissa Trotter.

As it turned out, I would have been correct in concluding that Larry Swearingen is factually innocent.

Can you, as a skeptical juror, see it?  Can you see why Larry Swearingen must be factually innocent based on the evidence just presented?

Stay tuned.

Part 2 now available.

Monday, August 15, 2011

A Tale of Two (Wanton) Cities

In my last post bagging on the law enforcement agenices of Prince George's County, I showed their riot police beating with sticks a young man who had the temerity to dance in front of a police horse. I'll repeat that video below. (My apology if you are subjected to a 15 second commerical.)

The sheer wantoness of the police assault reminded me of one I had seen earlier, from New York City. In the NYC video, a cop went well out of his way to assault a bike rider.

Besides the similarity in wantoness, the parallel in both cases is that the those who were assaulted were charged with assault. In both cases, had it not been for the videos taken by private citizens, the victims of assault would have almost certainly been wrongfully convicted. Who would take the word of a defendant over the word of a whole bunch of police officers telling the same story. The police would have no motive to lie. Right?  And the defendant would. Right?

I'll present the NYC story in two videos. The first shows the assault most clearly. The second shows it less clearly from a different angle, but the second overlays the testimony, under oath, of the assualting officer. Watch them both for full effect, and be amazed.

And be terribly disappointed.

Perhaps as jurors we should consider granting defendants the presumption of innocence.

It's just a suggestion.

Friday, August 12, 2011

The Impending Execution of Jerry Terrell Jackson

Jerry Terrell Jackson sits on death row awaiting execution by the people of Virginia. He was convicted of the rape and murder of 88-year-old Ruth W. Phillips. I provide below the factual summary from the appellate decision Jackson v. Commonwealth, 2004.
Around 7 p.m., on Sunday, August 26, 2001, Richard Phillips discovered the body of his 88-year-old mother, Ruth Phillips, lying "twisted and exposed" on a bed in her bedroom. Phillips explained that his mother's "leg was twisted around, and her pubic region was exposed[; h]er breast was exposed[; and h]er nightgown was up around her neck." Mrs. Phillips lived alone in an apartment located in Williamsburg, and her son had become concerned about her well-being that day because she had not attended church and was not answering her telephone. After finding his mother's body, Phillips went outside and used a cellular telephone to call the "911" emergency number. While waiting for emergency personnel to arrive, he noticed that the screen on a bathroom window in the apartment had been removed.
A subsequent autopsy of Mrs. Phillips' body revealed a contusion on her nose and some hemorrhaging of minute blood vessels in her cheeks and eyes. There were also two lacerations to her vagina, one on the exterior area and the other one on the interior area. The medical examiner who performed the autopsy opined that the cause of death was asphyxia. Death by asphyxia, according to the medical examiner, occurs when the brain is without a supply of oxygen for four to six minutes although unconsciousness may come about within 15 to 30 seconds.
An investigator with the James City County Police Department, Jeff Vellines, went to Mrs. Phillips' apartment and collected several items of physical evidence. He found a window screen, mirror case, and cosmetic items outside the apartment near the master bathroom window. Inside, Vellines discovered a black pocketbook lying on the floor next to Mrs. Phillips' bed, and a brown wallet underneath the pocketbook. The wallet did not contain any money. However, a white square piece of paper found in the wallet contained one latent fingerprint of value for identification purposes. That fingerprint was later compared with the fingerprints of the defendant and found to be "one and the same."
Another investigator at the crime scene recovered a hair from Mrs. Phillips chest area and another hair on the bed below the stomach area. During the autopsy of Mrs. Phillips' body, additional hairs were collected from her left thigh area. Microscopic examination of those hairs by a forensic scientist revealed that one of the hairs recovered from Mrs. Phillips' thigh area and the other two hairs were pubic hairs, but they were not consistent with samples of Mrs. Phillips' pubic hair. These same three hairs along with samples of the defendant's blood and hair were later subjected to mitochondrial DNA analysis. According to the forensic scientist who performed the testing, Jackson could not be excluded as the source of the hairs found on Mrs. Phillips' body and bed. The "mtDNA sequence data" of each of those hairs matched the "corresponding mtDNA sequence of the blood" taken from the defendant.
In December 2001, Vellines and Eric Peterson, also an investigator with the James City County Police Department, interviewed Jackson in the James City County Law Enforcement Center. After waiving his Miranda rights, Jackson admitted entering Mrs. Phillips' apartment, searching through and taking money out of her purse, and then exiting through a back window. Jackson stated that he did not know that Mrs. Phillips was at home, and that, when he turned on the light and was going through her purse, Mrs. Phillips, who was lying in bed, confronted him and stated, "What do you want? I'll give you whatever, just get out." In the defendant's words, "[I]t just scared me and I covered her up[.]" Jackson acknowledged that he held a pillow over her face for two or three minutes and tried to make her "pass out" so she could not identify him. Jackson stated that, when Mrs. Phillips stopped screaming, that was his "cue that she [had] passed out." He also admitted that he inserted his penis into her vagina while he was holding the pillow over her face.
Continuing, Jackson stated that he took Mrs. Phillips' automobile when he left her apartment and drove it to another apartment complex, where he abandoned the vehicle with the keys lying on top of it. He also used $60 that he had taken from her purse to purchase marijuana. Throughout the interview, Jackson denied that anyone else was with him during this incident and insisted that he did not mean to kill Mrs. Phillips.
At trial, Jackson testified to a different version of the events that supposedly transpired at Mrs. Phillips' apartment. The defendant claimed that, on the day in question, he had been playing basketball until around midnight at the apartment complex where Mrs. Phillips lived. Jackson stated that, as he was leaving, he came in contact with Alex Meekins and Jasper Meekins. Jackson decided to participate in their plan to break into Mrs. Phillips' apartment. According to Jackson, Alex entered the apartment through a window and then let Jasper and the defendant in through the front door. While Jackson was looking through Mrs. Phillips' purse, she woke up and asked what was going on. Jackson testified that the following events then took place in Mrs. Phillips' bedroom:
Jasper Meekins, he put the pillow over her face and smothered her. While he was smothering her, I think she was struggling, but I told him at the end when I heard some sound, she was gurgling, I told him to stop. I pushed him off. As we were leaving, I pulled her nightgown down. I put the blanket over her, and I picked the pillow up initially and I didn't like what I saw, so I put the pillow back.
Jackson explained that he confessed to Peterson because he thought that was what Peterson wanted to hear, and because he just wanted to "get out of there as fast as [he] could." Jackson also explained that he never told the investigators about Jasper's and Alex's participation in the crime because he was "scared for [his] family on the streets" and had concerns about being a "snitch." At trial, Jackson denied raping or killing Mrs. Phillips. He also denied having any knowledge about who raped Mrs. Phillips or about how his pubic hairs got on her body.
Two footnotes from that decision are also pertinent to this post.

Footnote 2:  Jackson also testified at a hearing on a motion to suppress his confession. His testimony at that hearing also differed from his statement to the police.

Footnote 3: A mitochondrial DNA analysis of blood taken from Alex Meekins [the accomplice claimed by Jerry Jackson during his trial] showed that his [Meekins'] mtDNA sequence did not correspond to the mtDNA sequence of the three hairs recovered from Mrs. Phillips' body.

I find no claim that Jerry Jackson is factually innocent of the crime. Even Jackson himself admits to willfully participating in the break-in that led to the death of Ruth Phillips. The fingerprint and mitochondrial DNA match corroborate his admission / testimony that he was there. (I am skeptical of hair and fiber matching, but not mtDNA analysis of hair samples.)

Given the certainty of Jerry Jackson's commission or participation in the crime, I take no position regarding his execution. I stand mute.

Wednesday, August 10, 2011

Rick The Needle

Rick "The Needle" Perry has told the country he will tell the country this coming Saturday whether he intends to bless the country by running for President of the United States of America.  Color me surprised.

I doubt very few of you remember, but I predicted back in May that he was going to run. I'm not talking last May. I'm talking 16 May of 2010

I've pretty much kept my political thoughts to myself on this blog. I don't want to contaminate my basic message about our problem of wrongful convictions by dividing my readership along political lines. Given that caution, I guess I have no justification for now expressing a political opinion, especially one that might irritate readers from both sides of the political spectrum.  Nonetheless, Rick Perry's impending announcement that God has called on him to run and save us all has pushed me to the brink.

So here goes. My first political statement of this blog.

If the presidential election comes down to a choice of Rick Perry or Barack Obama, I would be unable to vote for either of them. There will certainly be a number of lesser-knowns on the ballot, and I would vote for any of them in a heart beat. If there is a libertarian candidate on the ballot, I would vote for that candidate.

Financially, we cannot afford another four years of Barack Obama. (We can't even afford the last three.) Socially, we could not afford four years of Rick "The Needle" Perry. (Cameron Todd Willingham, Frances Elaine Newton, Kia Levoy Johnson, and Lamont Reese couldn't even afford The Needle's two terms as governor.)

This blog post is, as they call it in our justice system, a statement against interest. Not only do I risk alienating my readership, I could be butching my big chance to become a despised millionaire jet owner. If Rick Perry were to get the Republican nomination, the Obama campaign would absolutely spend a good portion of its projected billion dollar war chest to dig up dirt on Rick The Needle. 

That kind of money can buy a lot of copies of The Skeptical Juror and The Trial of Cameron Todd Willingham and Inferno. I would be pleased to offer a special group discount.

Let's see what Rick thinks of that possibility.

Rick "The Needle" Perry

Tuesday, August 9, 2011

Speedy Trial Takes One in the Nuts

You don't need to read the Constitution. It's right in the banner of this august blog. "The accused shall have the right to a speedy trial." It's kind of an important right. Otherwise the authorities can imprison you forever without a trial. You're not convicted, you're just incarcerated awaiting trial.

In Prince George's County, Maryland, a speedy trial apparently means something more than a year, sometime at the convenience of the manufacturer of the automated speeding system, who is given the power  to schedule the trials. Speeding Ticket Ace Will Foreman has been waiting more than a year to fight many of his automated speeding tickets in court. During the wait, the State has threatened to not register his company vehicles because he has unpaid speeding tickets.

Let's see what Wikipedia has to say about speedy trials:
Speedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the Sixth Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair trail. In adjudicating speedy trial claims, the Supreme Court has developed a four-part test that considers the length of the delay, the reasons for the delay, the defendant's assertion of his right to a speedy trial, and the prejudice to the defendant (Barker v. Wingo, 1972).
Violations of the principle, such as where the state has failed to bring the case to trial for an "unreasonable" length of time, may be a cause for dismissal of a criminal case.
In the United States, the length of time can either be defined by statute (for example, in New York, the prosecution must be "ready for trial" within six months on all felonies except murder, or the charges are dismissed by action of law without regard to the merits of the case), or determined by a court under a substantive theory based on the Sixth Amendment; which states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ..." This argument is typically made in cases in which a significant amount of time has lapsed between the date of the commission of the crime and the date of arrest.
Most, if not all, statutes defining the period of speedy trial time also include various exceptions to this rule. Examples of such exceptions are periods of time in which the delay preceding the trial is due to the request of the defense, or if there is good cause.
Allow me to interpret. You no longer have a right to a speedy trial. Not only will the Supreme Court  not establish a firm time, the Court requires the defendant prove he was not somehow prejudiced by being incarcerated without a trial. I think the Supremes missed the point on this one. The point is not that the incarceration prejudiced one's chance for a fair trail. The point is one was in jail for a long time without being convicted of a crime.

I'm unaware of anyone who has had a felony dismissed because he didn't get a speedy trial.

Still, even my jaded perspective was rattled by this blog post from NMissCommentator, "A blog from the hills of North Mississippi." The Supreme Court of Mississippi has recently ruled that Virgil Johnson's right to a speedy trial was violated simply because he was incarcerated for 680 days before being given his trial. Virgil Johnson had been convicted of shooting his "friend" in the neck, and the Mississippi Supreme Court had no intention of setting him free, speedy trial be damned.

From the Supreme Court decision, we sort of learn the reason for the delay.
The trial court found the delay was necessary due to the backlog of cases, and noted that several, older cases were set before Johnson’s that may have caused his case to be put off until the court’s next term. Further, the State provided three trial dates from the computer system used throughout Hinds County, which showed that Johnson’s case had been set for trial three months after he was arraigned.
Holy crap!  Mississippi couldn't give Virgil Johnson a speedy trial because they were too busy not giving a bunch of other people a speedy trial, and because ... because ... uh, uh ... I have no idea what the second sentence meant.

Instead of granting Virgil's motion to have the verdict set aside, the Mississippi Supreme Court told Virgil Johnson to count his lucky stars. It could have been worse. Other people had been in custody longer. The Mississippi Supremes even gave some numbers.
  • Some guy named Sharp was held 731 days without a trial
  • Some guy named Manix was held 1,430 days without a trial.
  • Some guy named Moffett was held for 1,656 days without a trial.
At least there was a dissent in this case. Presiding Justice Dickinson, bless his heart, wrote:
It is no secret that, for the past twenty years, the Sixth-Amendment right to a speedy trial has been under attack and on life support. Although this Court’s previous decisions have suggested that—given the right set of facts—a speedy trial claim could possibly be won, today’s final, fatal blow mercifully puts the criminal-defense bar out of its misery. Whereas previous decisions have been less than clear, today’s plurality opinion is as subtle as a stick of dynamite—the Sixth-Amendment right to a speedy trial in Mississippi is dead.
In previous cases, this Court at least paid lip service to a few speedy-trial maxims, such as “an eight-month delay is presumptively prejudicial” ... But today, the plurality ... makes crystal clear this Court’s position on the right to a speedy trial: the life support plug has been pulled, and the right to a speedy trial exists no more.
Because I believe the Sixth-Amendment right to a speedy trial is as important to us today as it was when it was proposed by our Founding Fathers in 1789, and ratified by the people in 1791, I respectfully dissent.
As it turns out, not-so-speedy trial folks in Mississippi are a bunch of pikers. I took the trouble to look up the decision in Barker v. Wingo to read about how the U.S. Supreme Court gave everyone a good talking to about violating our right to a speedy trial.

Holy crap! Barker awaited his trial for more than five years, so that the State could try his accomplice first, three times. The U.S. Supremes ruled in 1972 that Barker had not been denied the right to a speedy trial.

No more incandescent light bulbs. No more right to a speedy trial.


Sunday, August 7, 2011

Fear and Loathing in Prince George's County

In Misconduct Abounding in Prince George's County, I explained how I came to learn of the sorry state of justice in Prince George's County, Maryland. I also detailed how their canine unit was at one time the most dangerous in the country. In this post, I examine how they handled unruly students after a "March Madness" basketball game last year.

I'll begin with a video from a Washington Post article. The video pretty much speaks for itself. Keep an eye on the guy who dances in from the right side of the screen and approaches the officer on horseback. You decide whether or not he struck  the horse or the officer. I apologize for the 15 second lead-in commercial asking you to help save the planet. Make sure you embiggen the video so that you can see the attack in all its disgusting glory.

You may not have been able to see the student attack the police, but the police apparently had no trouble seeing it. After beating him with riot sticks they, charged him with striking a mounted police officer. Once the homemade video surfaced and made the rounds, the charges were dropped.

Note that the attack by the police was well coordinated, as if the police were trained to suppress imminent threats with overwhelming force and violence.

More to come regarding Prince George's County. Stay tuned.

The Impending Execution of Martin Robles

Martin Robles sits on death row awaiting execution by the people of Texas. He apparently claims to be innocent. As evidence of that, I offer the following pen pal request he has posted on the DeathRow-USA web site.
Hello. My name is Martin Robles and I am looking for a penpal. I am from Corpus Christi, Texas and seeking someone who is cool with writing a death row inmate in their spare time.
I am a 25 year old Mexican who was wrongfully convicted and condemned to die for a double homicide involving gang members. I have little faith in the judicial system for I am a gang member myself and gang members just don't win. So I've accepted my fate and would like to make new friends before I pass away.
I'm 5'6'' with tattoos, bullet wounds, scars, and a pretty smile. I weigh about 180 and work out to stay in shape. I'm an ex-convict so I've spent 6 years in prison before for a murder conviction when I was 17 years of age. I got to spend 13 months of freedom before I was set up by the cops.
I like to fight, shoot dice, and explore the club scene. I like drinking on occasion and love sex. I've been incarcerated most of my adult life, so there's lots of things I've never experienced but I regret nothing.
I come from a loving family and wish to spend my remaining years getting to know someone as a friend. With that said, I leave as I came, with smiles and good intents.

Martin Robles
Martin Robles is one of those somewhat rare instances when I am unable to find much information about his crime, one way or the other. From one appellate decision I find this rather thin statement of facts.
Robles and an accomplice entered a dwelling while the occupants were asleep and shot and killed two persons. He was convicted of capital murder and sentenced to death.
From another appellate decision I infer that some or a substantial portion of the evidence against Robles came from a snitch, and you should all know by now what little value I put in snitch testimony. Robles and his alleged accomplice were also portrayed as gang members who killed gang members.

In the case of Martin Robles, I have too little information on which to make an assessment. I find that troublesome. If we are going to execute people, we should at least make the basis for the execution well known. Certainly we should publicly provide more information than he was convicted by a jury.

Wednesday, August 3, 2011

Misconduct Abounding in Prince George's County

I have been working on a petition for absolute pardon for more than 2 months. I've spent several hundred hours so far. It keeps me from blogging as much as I would like, but I'm pleased with how it is coming along. It's quite important I perform that task well.

Previously I spent many, many hours attempting to provide some insight into how automated speeding tickets might be automating wrongful convictions. That effort resulted in eight extended blog posts including such classics as Automating Wrongful Convictions (with Demon Devices from Hell), Automating Wrongful Convictions: The Empire Strikes Back, Automating Wrongful Convictions: Optotraffic System Pwned, and the ever famous My Interview with Ace Foreman, Annotated.

This afternoon, those two widely disparate efforts intersected in Prince George's County, Maryland.

As I was once again compiling specific cases of false confessions for the clemency petition, I suddenly realized that a disproportionate number of them came out of Prince George's County, Maryland. I thought it odd that one county should have such a cluster of false confessions.

And I paused.

I had heard the name of that county before. It rang a bell. It hit me like a ton of judicial misconduct bricks. Forest Heights is in Prince George's County. Forest Heights is the city that has doubled its revenue by handing out obviously trumped up speeding tickets.

Unfortunately, I was right. The speeding tickets are just a microcosm of a much larger, much more serious problem. The fine folks who distribute justice in Prince George's County proved me correct when I would much prefer to be wrong. 

My curiosity piqued, I dared search Google for: misconduct Prince George's County.


This will be the first of several posts about the shameful state of justice in Prince George's County, Maryland. I begin  with the country's use abuse of police dogs to maul its citizenry. I summarize from a March 2002 20/20 story.

I begin with Esther Vathekan. She was asleep in her own bed in 1995 when the police somehow mistook her for a burglar. They unleashed the hounds, and the dogs mauled her face.

It would a terrible tragedy even if it was a rare, honest mistake. But it was by no means a rare incident. Between 1987 and the date of the 20/20 story, the Prince George's County police dogs were involved in approximately 1300 hundred attacks. That's about one attack every four days. The Prince George's canine unit became the most dangerous canine unit in the country.

Between 1999 and the date of the 20/20 story, the canine unit had been the subject of 33 criminal investigations launched by the FBI. The county wouldn't control the dogs, and the state wouldn't control the dogs, so the feds stepped in.

Louis Azurdia accidentally set off an alarm while working to remove asbestos from a school  A canine police unit was dispatched to the school, and Azurdia was attacked by a dog. The police arrested Azurdia, then never charged him with a crime. He sued and won.

When Willie Walker was arrested, he was repeatedly bitten by a police dog. Though he was found to be guilty of no crime, he suffered permanent disfigurement.

Julius Booker abandoned an allegedly stolen van and attempted to flee on foot from a canine officer. Even after he was caught and handcuffed, the dog bit him repeatedly. "He let the dog continue to bite me. I couldn't do nothing, I was handcuffed face to the dirt, crying, begging for mercy." Booker was charged, tried and acquitted. He sued and won.

The dogs have torn out triceps and biceps. They have torn off ears. They have torn off noses. The police used them not to apprehend, but to punish, maim, and brutalize.

At some point, the situation became too much for the feds to bring individual criminal actions. The feds took action against the entire department.

From Wikipedia, we learn:
In July, 1999, the department was subject to a complaint by the United States Justice Department regarding alleged excessive use of force by police canine units. In January 2004, the department signed a memorandum of understanding with the United States Department of Justice allegations of excessive force. This resulted in the establishment of an independent monitoring group by Military Professional Resources, Inc., a private defense contractor.
Since then, things seem to have improved. Many of the canine officers and all of the dogs have been replaced. The dogs are now trained to "guard and bark" rather than "bite and hold." As long as the subject stays still, the dog will only bark, not bite.

According to the Memorandum of Agreement between the feds and the county, the county must report quarterly regarding their progress with respect to their canine unit. Here's a small segment of just one quarterly report.
During the current reporting period, the Canine Section’s performance has been outstanding. The Canine Section reported that during this quarter, there have been 174 deployments (ytd 590) which resulted in 14 apprehensions without a dog bite (ytd 40), and 2 seizures (apprehensions with a dog bite) (ytd 6) from July through September 2006.
That seems much better: 40 apprehensions without a dog bite versus 6 with a dog bite. Perhaps Prince Georgia's County will finally put their policing efforts in order.

Perhaps not.

Stay tuned.