Sunday, September 4, 2011

The Absolutely Astounding Case of Larry Swearingen: Part 5

Though this will be the fifth and (almost certainly) the last post of this so-called three-part series, it will definitely not be the end of the story.

I begin with a standard warning: there is no way this post will make sense to you unless you have read the previous posts in this august series. Read them now. The rest of us will wait here.

Part 1 in which the evidence is overwhelming, yet I vote Not Guilty
Part 2 in which Larry Swearingen is painted in a bad light, and I explain why I voted not Guilty
Part 3 in which a doctor provides absolute proof of Swearingen's innocence
Part 4 in which other doctors join the chorus of those extolling Swearingen's innocence

Okay you're back.  While you were gone, we played Digital Twister: "That's amazing! Now put the ring finger of your right hand on the letter Q."

Larry Swearingen has put up a stout appellate defense. There can be no doubt of that. While I've lost count of the exact number (so don't trust me too closely here), I believe he's had five habeas corpus appeals at the State level and several at the Federal level. You're generally allowed but one at each level, and exceptions are rare. Swearingen has also had multiple hearings regarding his claims of actual innocence. Some states allow one. He has managed three stays of execution, twice coming within one day of the needle.

It took me days to wade through all his appeals, sort them out, make sense of them, and condense them into an easy to understand format for you, my faithful and patient readers. Your patience has finally paid off. I hereby present my summary of Swearingen's appeals, which doubles as a summary of why he is factually innocent. Click to embiggen.

Perhaps the chart requires a wee bit of explanation. Time runs horizontally from left to right. Each block corresponds to one day, beginning with December 8, 1998 at the left and ending at January 2, 1999 at the right. December 8th is the day Melissa Trotter was last seen alive, other than by the person or persons who killed her. She was, on that day, in the presence of Larry Swearingen.

January 2 is the day her body was discovered in the Sam Houston National Forest.

Time also runs vertically from top to bottom, with one exception I'll soon explain. Starting at the top, the chart shows that Larry Swearingen had only three days in which he could have killed Melissa Trotter. He was with her on December 8th. He could have killed her on that day, or the next, or the next. He could not have killed her on the 11th of December or any day thereafter. He was in jail, having been arrested on "unrelated" charges.

If Melissa Trotter was murdered on December 12 or later, then Larry Swearingen did not kill her, regardless of all the circumstantial evidence of his guilt, despite all the direct evidence of his lack of character.

Moving down the left hand side of the chart ...

... you see that Swearingen's earliest appeals hinged on the affidavits and testimony of entomologists, aka bug experts. (Entomology is from the Greek word entomos, meaning that with is cut into pieces, as are the always three-segmented insects.) These bug guys got Swearingen his first stay of execution. Based on their affidavits, the appellate court remanded the case back to the trial court for evidentiary hearings regarding the relationship blow fly infestation and time of death.

The three bug guys pretty much agreed that Trotter's body was first colonized by blow flies around December 16, five days after Swearingen's arrest. Blow flies are usually the first insect to find and exploit a dead body. The blow flies sometimes lay eggs on the same day the person was left in the open. Their eggs develop at a specific rate for a specific species. Based on the development of the baby blow flies found in the body, the bug guy can estimate the date the body was first infested.

The entomologists, however, were willing to commit only to a claim that Trotter's body was left in the woods some time after Swearingen was incarcerated: December 12th or later. They left open the possibility she was killed earlier, that her body was protected from infestation for a while, and that her body was then left exposed in the forest. No one (neither the defense, the prosecutor, nor the court) attempted to explain how that might have happened.

The trial court found the scientific testimony unpersuasive, particularly in light of all the non-scientific stack of evidence they actually understood. The trial court declined to grant Swearingen a new trial and the appellate court adopted the trial court's findings. Another execution date was scheduled.

Moving still further down the left side of the chart ...

... Swearingen fended off a second execution date when he was granted a stay based on the affidavits of pathologists such as Drs. Larkin, Carter, and White. These guys were the organ grinders. They are in the chart beneath the bug guys, because they appeared later in the appeals process. The organ grinders argued, quite persuasively to my mind, that the internal organs were nearly pristine, showing only initial signs of decomposition. They pointed out, quite persuasively to my mind, that had Trotter's body been in the forest for 25 days, as the State (via Dr. Carter) initially claim, it would have lost 90% of its weight. The body had instead lost no more than 5% of its weight.

The organ grinders placed the date of death somewhere between a few days and a few weeks. The earliest date any of them estimated was December 18, a full week after Swearingen had been incarcerated.

Based on the affidavits of  these organ grinders, Swearingen was granted his second stay.

But wait. There's more. Moving down the chart ...

... we can see that there's more. While the trial court was considering the evidence of the organ grinders, even more substantial proof of Swearingen's innocence came to light. As it turns out, tissue samples from Trotter's autopsy had been preserved in paraffin.  The very existence of these samples, however, had been withheld from the defense during the trial and pretty much throughout the appeals process. The State was willing and eager to execute Swearingen, though they had withheld proof of his innocence.

The study of cell anatomy is called histology. The cells are typically studied by examining a thin slice of tissue under a light or electron microscope. For bodies that have been dead a few days, rather than a few hours or a few weeks, histology provides the most accurate indication of time-of-death. The bug guys and the organ grinders simply can't compete with the tissue gazers when it comes to time-of-death accuracy in cases such as Trotter's.

Tissue gazer Dr. White (aka organ grinder Dr. White) placed Trotter's death no sooner than December 29. Later, tissue gazer Dr. Pustilnik placed Trotter's death no sooner than December 26. In even the most conservative estimate, Larry Swearingen had been incarcerated for more than two weeks before Melissa Trotter was murdered.

But wait. There's even more. There is the last item on the chart.

There was actual DNA evidence in this case. That DNA evidence consisted of blood found beneath one of Trotter's fingernails. That DNA evidence was actually presented at trial, so it is out of order in the chart. I placed it there so I could tell the story as I am now telling the story.

The DNA evidence actually excluded both Trotter and Swearingen as the contributor. Here's where an astounding story becomes even more astounding.

The jury was aware of that the foreign DNA pointed to someone other than Larry Swearingen. However ... get ready ... the DNA expert testified that the blood residue was exceptionally small, just a few frail flakes of blood. In fact, the flakes were so few and frail that ... [drum roll] ... they could have only been deposited within a few hours or a few days of the testing.

Holy exoneration, Batman! The jury knew before convicting Swearingen that the foreign blood under the victim's fingernail did not come from Swearingen, and that it could not have found its way there more than a few days before the discovery of the body.  The DNA expert anticipated what would happen years down the road, that the biological evidence would also prove that Trotter was killed just days before she was found.

So why, you might ask, did the jury convict. I wasn't there, of course, in that jury room. So I don't know. I do know, however, what the prosecution told the jury about the blood flakes. The DNA expert said that since the flakes could not have been there very long, and since the Trotter had been killed much earlier, that the flakes must have been from some sort of contamination.  In other words, he told the jury "Ignore everything I just told you. It means nothing. Nothing at all. Just some contamination. No evidence of a recent death. Sorry I brought it up."

And here's where an absolutely astounding story becomes absolutely even more astounding. When faced with the evidence of seven scientific experts, all of whom place the date of death as sometime after Swearingen was in prison, and though they had no expert whatsoever to contradict that claim (Dr. Carter having switched horses just before hers drowned), and even though the overwhelming biologic date-of-death was supported by the existence frail and short-lived blood flakes, the court ruled that it all made no difference. The court rejected all the scientific evidence as of no consequence whatsoever. They refused to grant a new trial, and instead moved on with setting the third (and hopefully final) execution date.

Of all the judges involved in this travesty, none made herself more of a judicial and scientific dunderhead than did Judge Cathy Cochran of the Texas Court of Criminal Appeals. She filed a separate concurring opinion, and she did not just concur. She concurred for page after page, embarrassing herself on each one, in public, for all time, until the heat death of the universe. She sent an innocent man on his way towards the gurney, while blithely dismissing each and every scientific expert who submitted affidavits or testimony to the court, and while substituting her own pseudo-scientific crappola that would make even Al Gore blush.

In fact, I dare not at this point continue. I have gone on too long and I fear I may have lost my objectivity. When I use the words "dunderhead" and "crappola" in the same paragraph (as I have now done two paragraphs in a row) it is time to wrap it up.

I will therefore complete this well-planned three four five six part series in my next post. I promise to take a deep breath beforehand, so that I may speak of Judge Cathy Cochran in a civilized tone.