Saturday, September 10, 2011

The Impending Execution of the Duane Buck

Duane Buck sits on death row awaiting execution on 15 September by the people of Texas. There is no doubt that Buck is factually guilty of the murders for which he is to die. From the appellate decsion of Buck v. Thaler, I offer the following factual summary of the case.
Early one morning in July 1995, Buck's ex-girlfriend, Debra Gardner, and several of her friends, including Kenneth Butler, his brother, Harold Ebnezer, and Buck's sister, Phyllis Taylor, gathered at Gardner's house after having spent the previous night out p laying pool. Buck and Gardner had ended their relationship about one week earlier. At some point that morning, Buck arrived at the residence, banged on the front door, and kicked it open, after which he argued loudly with Gardner and struck her before retrieving some of his possessions and leaving.
Several hours later, Buck returned with a rifle and a shotgun. After forcing the front door open, Buck fired at — but missed — Ebnezer, who immediately fled the house through the back door. Buck then approached Taylor, pressed the muzzle of the rifle directly against her chest, and fired. Taylor fell to the ground but survived her injuries. As she lay on the ground, Taylor heard several more gunshots coming from the area of the bedrooms. When Taylor was able to stand and make her way through the house, she discovered Butler's body slumped over and bleeding in the hallway.
After hearing the first gunshots, Devon Green, Gardner's then-11-year-old son who had been sleeping in the back bedroom, hid in the hallway closet. From his hiding place, Green listened as Buck confronted Butler in the hallway and accused him of sleeping with Buck's "wife." Gunshots followed. Both Green and his teenage sister, Shennel Gardner, then ran outside, where they witnessed Buck shoot their mother as she attempted to flee in the street.
Buck placed both guns into the trunk of his car, which was parked outside Gardner's residence, and attempted to start the vehicle. When his car did not start, Buck began walking away from the residence. Police arrived just as he was leaving, and both Green and Ebnezer identified him as the shooter. Police then took Buck into custody and recovered a shotgun and a .22 caliber rifle from the trunk of his car. Both Gardner and Butler died from their gunshot wounds.
There is more controversy than usual surrounding Duane Buck's impending execution. The controversy has nothing to do with whether or not Buck killed Debra Gardner and Kenneth Butler. The controversy has to do with the punishment phase of his trial. The jury was told by an "expert" that Buck was more likely to be a future danger to society because he was black.

Uh oh.

I offer this summary of that race issue from Public News Service:
Attorneys for a Texas man scheduled for execution in eight days are asking a federal judge to order a new sentencing trial, contending that Duane Buck's 1997 sentencing was unconstitutional.

Buck's was one of seven death-penalty cases that then-Attorney General John Cornyn wanted reviewed for what he called an "egregious error": An expert witness told juries that certain races were more likely to be dangerous in the future. While the other six eventually received new trials, Buck, who is African-American, "slipped through the procedural cracks," according to Andrea Keilen, executive director of the Texas Defender Service.

"The bottom line is that his trial was tainted by this racist evidence. So we're asking that he have a fair opportunity, in front of a jury that's not biased by this sort of thing, to argue for his life."

She says the Buck case highlights how the death penalty is sometimes applied unfairly, even after the question of guilt or innocence has been settled.

Buck shot and killed Debra Gardner and Kenneth Butler in 1995, and injured Phyllis Taylor, who now says she has forgiven him and wants his life spared. Keilen says allowing race to factor into the sentencing violated both the due-process and equal-protection clauses of the Constitution.
The problem with the racist argument in this case is that the witness who made the "racist" observation was a defense witness. That's right. The "racist" expert was called by Buck's own attorney. I offer the following from the 5th Circuit decision in Buck v. Thaler.
In mitigation, Buck presented evidence that he is a peaceful, non-violent person; that his mother died when he was 12 years old; that he worked as an auto mechanic; and that, while he was growing up, his father had served several jail sentences for non-violent felonies. Buck called Dr. Walter Quijano, a clinical psychologist, as an expert witness to testify on the likelihood of Buck’s future dangerousness. On direct examination, Dr. Quijano testified that he had considered several statistical factors when evaluating Buck’s potential for future dangerousness, including but not limited to age, sex, race, social economics, history of violence, and history of substance abuse. Regarding race, Dr. Quijano stated: “It’s a sad commentary that minorities, Hispanics and black people, are over represented in the criminal justice system."
On cross-examination, the prosecutor questioned Dr. Quijano regarding the several factors that he had mentioned during direct examination. At one point, the prosecutor -- without objection from Buck’s defense counsel -- asked Dr. Quijano about his consideration of both race and sex as relevant factors in his future-dangerousness analysis, which led to the following exchange:
Q: You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?
A: Yes.
... [T]he State has consistently maintained that it did not violate Buck’s constitutional rights merely by questioning Buck’s own expert witness -- without objection from Buck -- on the very same issues first discussed by that witness during direct examination by the defense, a classic example of the defense “opening the door” for the prosecutor to pursue the subject.
That seems to be the extent of the "racist" testimony in Buck's trial. Neither side mentioned race in their opening or closing arguments. The appellate courts have all agreed with the State of Texas on this issue in this case. I agree with the State of Texas as well on this issue in this case.

I oppose the death penalty for those cases where there is some reasonable case for factual innocence. In all other cases, I have stood mute, taking no stand one way or the other on the propriety of the death sentence. I have not yet allowed procedural errors to change my position. The procedural error in this case, assuming there even was one, does not cause me to change my position.

With respect to the execution of Duane Buck, I stand mute.

The Absolutely Astounding Case of Larry Swearingen: Part 6

Okay. This will be the sixth and (absolutely, positively, for sure) the last post of this so-called three-part series.

I begin by cutting and pasting my standard warning from my last post: there is no way this post will make sense to you unless you have been 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
Part 5 in which I summarize Swearingen's persistent but failed appellate history.

Okay you're back.  While you were gone, I typed what you will now find below.

No judge has beclowned herself more in this case than has Judge Cathy Cochran. Not satisfied with her court's decision to allow the execution of Larry Swearingen despite the overwhelming scientific evidence, she decided that she would provide a separate concurring statement. I'll present it as she wrote it, commenting on it when I feel like it. My comments will be parenthetical and italicized (like this.) Some of her better beclowning will be emboldened, like this.

Hang on. Here we go.
COCHRAN, J., filed a concurring statement.
Applicant files last-minute, but facially appealing, claims of actual innocence of this capital murder based upon (1) affidavits from three medical examiner pathologists that the murder victim must have died within a day or two of December 30, 1998, which was some twenty days after applicant had been arrested and continuously jailed; and (2) specks of blood found under the victim's fingernails that contain DNA that does not match that of applicant. These claims are not new. This is applicant's eighth writ application and most of this evidence has been previously considered and rejected by Texas courts. More importantly, this is an instance of focusing solely on a couple of twigs of apparently exculpatory evidence instead of the veritable forest of inculpatory evidence.

To assess applicant's latest claims, one must weigh their merits relative to all of the other evidence in this case. In his fourth writ application, filed two days before his scheduled execution on January 24, 2007, applicant contended that Melissa Trotter's body could not have been placed in the Sam Houston National Forest on December 8, 1998, because entomological activity did not begin on her body until December 17th or 18th. He provided expert affidavits to this effect. We granted applicant a stay of execution and remanded his writ to the trial court to consider whether applicant could, in fact, establish that Melissa either did not die or was not transported to the Sam Houston National Forest until December 17th or 18th, at which time applicant was already in jail and therefore could not have committed the murder.

The trial judge granted applicant additional expert funding and an evidentiary hearing was held in July, 2007. At some point, applicant filed affidavits from two medical examiner pathologists, Dr. Glenn M. Larkin and Dr. Lloyd White. Both of these affidavits were signed on March 29, 2007, and they attack certain findings of Dr. Joye Carter, the Medical Examiner of Harris County who had performed Melissa's autopsy on January 3, 1999. (By the way, Dr. Joye Carter agreed with the defense pathologists that she had screwed up the date of death when she told the jury that Melissa was killed 25 days before her body was discovered. Dr. Joye Carter joined those pathologists who explained that Melissa had been killed well after Swearingen had been incarcerated.)

The trial judge's written factual findings and conclusions of law evaluated and rejected this evidence, along with other evidence. The trial judge's factual findings from the fourth writ hearing include the following summary of the trial evidence supporting the conclusion that applicant murdered Melissa Trotter on December 8, 1998:

• On the evening of December 7, 1998, two of Applicant's acquaintances, the Fosters, witnessed a phone conversation in which Applicant arranged for a lunch meeting with a girl at a library the following day, and Applicant then told the Fosters that the girl was Melissa Trotter, a college student from Willis; (The defense concedes that Swearingen and Trotter were together on 8 December. This is the same date of Trotter's last known sighting, hence the obvious and justified suspicion of Swearingen.)

• Three witnesses saw Applicant sitting with Melissa in the Montgomery College;

• Melissa's Biology teacher saw Melissa leave the Montgomery College library with a male shortly after 1:30 p.m.;

• Melissa's car remained in the Montgomery College parking lot following her disappearance on December 8, 1998;

• At 2:05 p.m. on December 8, 1998, Applicant called Sarah Searle and said that he was at lunch with a friend;

• Sometime around 3:00 p.m. on December 8, 1998, Applicant's landlord saw Applicant's truck leaving from behind his home; (But did not identify who or how many people were in the truck.)

• At 3:03 p.m. on December 8, 1998, Applicant placed a cell phone call that utilized a cell tower near FM 1097 in Willis, Texas, which would be consistent with Applicant driving from his home to the Sam Houston National Forest; (Not only is it consistent with Swearingen driving from his home to the Sam Houston National Forest, it is consistent with Swearingen driving from his home, or the college, to Trotter's house. The court failed to mention that Melissa Trotter lived within the confines of the Sam Houston National Forest.)

Swearingen's property was missing; (My house has, on more than one occasion, been is disarray. My work area is almost always in disarray. Good think I don't live in Texas.)

• Applicant's wife observed Melissa's cigarettes and lighter in Applicant's home that evening, and those items were subsequently recovered from Applicant's home during the investigation; (Another fail-to-mention. The court failed to mention that the cigarette butts found in Swearingen's house were subjected to DNA testing. The testing excluded Trotter as the person who smoked the cigarettes.  Also, I don't believe the evidence was that the cigarettes and lighter belonged to Trotter. I believe the evidence was that the cigarettes were the same brand that Trotter smoked and the lighter looked like one she used. Finally, I have seen it reported that Swearingen's wife turned out to be a secret smoker.)

• Applicant contacted police that evening and reported an alleged burglary of his home, at which time he falsely claimed to have been out of town from 11:00 a.m. on December 7, 1998, through 7:30 p.m. on December 8, 1998, and also falsely claimed that someone had stolen his VCR and jet ski;

• There was no sign of any prying mechanism having been used on the door to Applicant's home, and his jet ski was subsequently found at a repair shop where Applicant had dropped it off for maintenance prior to Melissa's disappearance;

• Applicant called an ex-girlfriend on the evening of December 8, 1998, and told her that he was in trouble and that the police might be after him; (Swearingen was apparently correct in his concern. He was arrested on December 11 for charges unrelated to Trotter's disappearance. At least, that's what the state claims.)

• When the Fosters heard that Melissa Trotter was missing on December 9, 1998, they contacted Applicant, who claimed he did not remember the last name of the girl with whom he had met the day before; (It is hard to imagine scientific evidence standing up to this overwhelming piece of inculpatory evidence.)

• When Mrs. Foster then told Applicant that she recalled him saying the last name "Trotter," and that a girl named Melissa Trotter was now missing, the phone went dead; (See above.)

• On December 11, 1998, Applicant told an acquaintance that he anticipated being arrested by Montgomery County authorities; (Once again, it seems as if Swearingen was correct in his concern. Once again, the state claims they arrested him on December 11 for unrelated charges.)

• Later in the day on December 11, 1998, after Applicant observed an officer radio in his truck's license plate number, Applicant sped away and led the officer on a high speed chase that ended in front of the home of Applicant's mother and stepfather; (Clearly the cops were suspicious of Swearingen regarding the disappearence of Melissa Trotter, and they made no effort to hide their suspicion. It's interesting that the high speed chase ended in front of the home of Swearingen's mother and stepfather.  Was that merely coincidental? Did the police perform a skillful pit maneuver just as he randomly passed his parents' house? Did they simply follow him there, arrest him for speeding, and call it a high-speed chase? The world wonders.) 

• Applicant was arrested on several outstanding warrants following the high-speed chase, at which time he asked that his hands be placed in front of him rather than behind because his arm and ribs were sore; (If I'm ever arrested, I intend to inform the police that my left shoulder dislocates, as in the ball comes out of the socket, if my arm is positioned up and back. [Old softball injury, for those of you concerned.] Coupled with my work area being in disarray, it's a real good thing I don't live in Texas.)

• Following Applicant's arrest, law enforcement authorities observed and photographed red marks on Applicant's neck, cheek, and back; (Swearingen claims to have a skin condition that causes such reddening. In any case, the point here is that Swearingen must be guilty because he has a sore arm, sore ribs, and reddened areas on his neck, cheek, and back. The problem with this evidence is that Trotter had no defensive or restraint injuries whatsoever. In fact, she had no unambiguous wound on her person other than the ligature marks from being strangled by the leg of the pantyhose. If someone kicked Swearingen's ass, it wasn't Trotter.)

• On December 17, 1998, two neighbors of Applicant's mother and stepfather collected numerous pieces of torn paper from along their street, which turned out to be Melissa Trotter's class schedule and some health insurance paper work Melissa's father had given to her; (And how does this implicate Swearingen, rather than exonerate him? He had been in jail for a week by the time these numerous pieces of paper turned up.)

• Melissa's body was discovered in an area of the Sam Houston National Forest with which Applicant would have been familiar from previous time spent there; (Yet another fail-to-mention. Melissa Trotter was also familiar with the Sam Houston National Forest, and had spent previous time there. In fact, her home was within the confines of the forest.)

• The ligature used to asphyxiate Melissa was a single leg torn from a pair of pantyhose belonging to Applicant's wife, the remainder of which was recovered from Applicant's home during the investigation; (A big time fail-to-mention. The police had executed two search warrants against Swearingen's house and his parents' house. They did not find either the pantyhose or Melissa's paperwork. Both these items turned up a week later. The landlord found the pantyhose in a trashcan. The neighbors found Melissa's torn papers outside Swearingen's parents' home also a week later. The police found none of this stuff. They also didn't find the body despite searching the area three times. Hikers found the body. Either the police can't search worth a crap, or the pantyhose, papers, and body simply weren't there when they searched.)

• The Harris County Chief Medical Examiner testified that during the digestive process, a person's stomach will usually not empty in less than two hours, and any food within the stomach at death will remain there; (I guess they are referring to the testimony of Dr. Joye Carter, who later conceded she screwed up big time in setting the date of death. It wasn't until this bullet point that I had reason to believe she testified that the food in the stomach would have survived 25 days. Holy Enzymes, Batman! It's amazing that after hearing years of discussion about decomposition that anyone involved in this case would believe that the stomach acts as a biologic Tupperware container.)

• The contents of Melissa's stomach at the autopsy, which included what appeared to be chicken and a french fry-like form of potato, were consistent with the tater tots she had eaten at Montgomery College shortly before leaving with Applicant and the Chicken McNuggets she and Applicant had apparently purchased at the nearby McDonald's on December 8, 1998; (The court had to stretch things a bit there to get from french fries to tater tots. The autopsy said "pieces of potato consistent with french fries." The court changed it to be "a french fry-like form of potato ... consistent with the tater tots she had eaten." Also, there is no evidence that Trotter went by a McDonald's that day, much less ordered McNuggets. Finally, even if Trotter had eaten McNuggets at McDonald's, that wold have been a separate, later meal. Perhaps the stomach was waiting to digest the tater tots until it had some McNuggets to go along with it.)

• Based on the state of decomposition of Melissa Trotter's body, including the presence of fungi that take "several weeks' time" to develop, the Harris County Chief Medical Examiner estimated Melissa Trotter's death to have occurred twenty-five days prior to the discovery of her corpse, which is consistent with December 8, 1998; (You should by now recognize this as a massive fail-to-mention.  The court once again failed to mention that the ME Joye Carter was also petitioning the court to give Swearingen a new trial because she screwed up her trial testimony when she estimated that Trotter's death had occurred 25 days prior to discovery of her body. There is no ME, coroner, pathologist, scientist, entomologist, barber, or blood-letter of whom I am aware that now claims Trotter was killed before Swearingen was arrested.)

• A note that had been given to Melissa by another student on the morning of December 8, 1998, was found in a pocket of Melissa's jeans during the autopsy; (Okay.)

• There were numerous cross-matches of fibers, hairs, and paint between Melissa's body and clothing and Applicant's jacket, master bedroom, and truck; (Suggesting such items matched is generally an overstatement. Frequently, such items were "consistent with." There are plenty of innocent people sitting in prison due to "consistent with" testimony from "experts."  I place "consistent-with" hair and fiber evidence better than snitch or accomplice testimony, and better than bite mark evidence, but not better than anything else that comes to mind.)

• Two of Melissa's hairs that were recovered from Applicant's truck still contained the anagen root, indicating they had been forcibly removed from Melissa's head; (Melissa was in Swearingen's truck. They did go out on a date on December 8. The hairs were matched to Trotter via DNA testing. I think it's a bit of a leap to conclude, however, that the existence of two hairs with root still attached is evidence of forcible removal by anything other than a comb or brush. Once again I note there were no unambiguous defensive or restraint wounds found on her body, other than the ligature wound.)

• A Luminal test on the seats of Applicant's truck indicated that they had been wiped down with Armor All, and two empty containers of Armor All wipes were found in the garbage at Applicant's home; (There's nothing wrong with keeping your truck clean, but the timing does seem coincidental. What's interesting here is that they found the Armor All in the garbage, but didn't find the pantyhose. Uh oh!)

• When Applicant's good friend, Elyese Ripley, visited him in jail on January 9, 1999, Applicant asked her to lie and say that she had been with him on the day Melissa disappeared and that they had gone to the Texaco-McDonald's near Montgomery College; (This is the State's explanation of finding chicken in Trotter's stomach. They don't believe a word Swearingen says, except for those portions when he asks someone to lie for him. Jeez, Louise! Anyway, Swearingen concedes he tried several times to fabricate an alibi. He was apparently afraid that Texas would convict him of murder based on flimsy evidence. Imagine that.)

• Around early May of 1999, Applicant fabricated a purportedly anonymous exculpatory letter that described the murder with explicit details that were confirmed by investigators, the medical examiner, and Applicant's own medical expert, including the facts that Melissa was injured on the left side of her face, her neck was cut, one of her shoes had fallen off, she was laid among the bushes on her back, and she was wearing red underwear; (This was a real Phi Beta Kappa move on Swearingen's part. He really did this. Though he didn't understand Spanish, he created an "exculpatory" letter in Spanish from a mysterious woman whose boyfriend had committed the murder. I'm guessing if I tried to write this post in Esperanto using an English-to-Esperanto dictionary, someone familiar with Esperanto would immediately realize something was amiss. The state claims, however, that Swearingen's bogus letter contained information that could have been known only to the murderer. That is, of course, crappola. All the information listed above was included in the autopsy, including the fact that Trotter was wearing red underwear. Swearingen was actively involved in his defense, both in legitimate and illegitimate fashion, and had read the autopsy.)
• Later in May of 1999, Applicant was asked by a cell mate whether he had committed the murder and Applicant replied, "Fuck, yeah, I did it," and stated that he was just trying to avoid the death penalty. (Okay, they end with a profane whimper, not with a profane bang. They certainly didn't save their best for last. They actually included snitch testimony when trying to establish guilty beyond a reasonable doubt.)

(Overall the list of inclupatory evidence is long and seemingly persuasive. On closer examination, the list is exceedingly short of inculpatory evidence, and absent any compelling evidence.)
Two of the most inculpatory pieces of evidence proving that applicant murdered Melissa on December 8th were: (1) the pieces of potato, chicken, and green vegetable that Melissa ate for lunch immediately before disappearing that were found in her stomach during the autopsy on January 3, 1999. Doctor Joye Carter testified at trial that food remains in the stomach for about two hours after eating it. (Since when does 2 hours equal 25 days? How can anyone, even a lay person, even a judge, believe that food would be preserved in its recently eaten state for 25 acidic-filled, enzyme-enabled, microbe gobbling days? This isn't compelling evidence his guilt. It's compelling evidence of his innocence. An innocent man should not die because Judge's don't know crap about the human digestive system.) (2) Cell phone records showing applicant used his cell phone at 3:03 p.m. on December 8th near the cell phone tower at FM 1097, a highway that crosses I-45 well north of applicant's trailer house (or the Montgomery County College). This is directly on a logical path to the Sam Houston National Forest where Melissa's body was found three weeks later. (Sigh. It is also in a logical path to her house. She lived within the boundaries of the Sam Houston National Forest.)

The original affidavits from Dr. Larkin and Dr. White attacked Dr. Carter's trial testimony that the results of her autopsy were consistent with Melissa having died on December 8th. (So did the affidavit of the Dr. Carter. They forgot to mention that, once again, for the fourth time.)

It was their opinion, then and now, that the pathological evidence indicated that Melissa could not have been dead until long after December 8th. Strangely, applicant did not call either of these pathologists to testify at the July 2007 hearing, although their opinions were known to him three months earlier. Instead, he called Dr. Luis Sanchez, the Medical Examiner for Harris County who replaced Dr. Carter. Dr. Sanchez testified that he did not see any evidence of vaginal bruising in the autopsy photos. Dr. Sanchez gave his opinion that Melissa's body was not in the Sam Houston Forest environment for more than two weeks, although it was probably somewhere else before that, because the state of decomposition-especially that of the pancreas — was not sufficiently advanced for having been on the forest floor for three weeks. The pancreas "normally" autolyzes quite rapidly, but Dr. Carter had said that she sectioned and examined the pancreas. 
Similarly, Dr. Sanchez thought that both the liver and the intestinal system appeared to be less decomposed than is consistent with the body lying outside for three weeks. When asked, Dr. Sanchez did not think that it was impossible for Melissa to have been killed on December 8th. He thought that it was possible (especially because of the remnants of her lunch from December 8th still present in her stomach) (I find it impossible to believe they have accurately summarized the evidence of a competent ME with this last parenthetical statement.) and that clothing would serve as a preventative barrier to some degree. When the judge asked whether cold temperatures would preserve a body for longer, Dr. Sanchez said yes: "Low temperatures can delay the process of decomposition." It would also delay the activity of insects and maggots. Dr. Sanchez concluded by telling the judge that "the pattern of decomposition in this case is a little bit unusual. It's not what we tend to see in most of our cases, especially with the mold that she [Dr. Carter] saw all over her body."

Dr. James Arends, an entomologist, testified at the July 2007 hearing and stated that he thought that Melissa could have been murdered on December 8th and then the "body was stored someplace cold. And the head got warm, or the head increased in temperature, and at that point in time, did in fact begin to decompose. And once it did, the odors attracted this particular fly, as well as some of the other flies that were there. And that's why we only see fly activity in this body at that point in time. And at some point in time, this body was in-at some later point in time, then transported to where it was eventually discovered out in the Sam Houston Forest." In sum, Dr. Arends suggested that Melissa's body was "frozen" before it was taken to the forest. (The frozen body hypothesis is just more crappola trying to fit otherwise exculpatory evidence into the State's case. Even the court doesn't buy the frozen body theory. From a footnote in another decision, I offer the following: "The Court clarifies that it does not adopt the theory that Swearingen murdered Ms. Trotter and then another mysterious individual froze her body and dumped it in the woods. This Court only observes the fact that Swearingen's experts, and some State actors, have advanced that theory because they cannot come to a scientific conclusion about what happened.")

The State called an entomologist from Texas A&M, Dr. Jeffrey Tomberlin, who testified that it is not uncommon for bodies to remain outside, for several days without any entomological activity, even in warm weather. "It's highly variable." He thought that there was nothing odd about Melissa's body being deposited in the forest on December 8th, even though this particular fly colonization did not start until the 18th. Dr. Tomberlin explained that the specific fly species that began colonizing Melissa's body on December 18th is a secondary colonizer, which indicates that her body was in an advanced state of decomposition at that time. He, like Dr. Arends, had a scientific opinion that the cynomyopsis fly colonization began on Melissa's body on December 18th, but that she could have been lying on the cold forest floor since December 8th with little entomological activity for a few days, then initial colonization by some fly species, and secondary colonization by cynomyopsis beginning on the 18th. 
(From an Amicus Curiae Brief by Dr. Harrell Gill-King, yet another expert telling the court that Swearingen could not have killed Trotter: "It is accepted in the scientific community that entomological estimates of post mortem interval should be used only when direct decompositional rate methods, such as histology, are not possible. Moreover, the discrepancies between histology and entomology are enhanced on the record in this case because the methods used to collect the entomological specimens fall well short of the established scientific procedures and standards. Given the substandard collection methods used in this case, entomology is virtually worthless as a means of estimating the victim’s post mortem interval.)

After the hearing, the trial judge signed extensive findings of fact and conclusions of law that addressed the entomological evidence, Dr. Sanchez's testimony, and the fact that the jury had been told at trial of the unidentified DNA found in blood flakes from under Melissa's fingernails. Based upon the original trial evidence, the affidavits, and testimony submitted, the trial court concluded that the new evidence was not exculpatory, nor was it material to applicant's conviction or sentence. It did not undermine confidence in the verdict. This Court independently reviewed the record, adopted the trial court's findings and recommendations, and denied applicant's fourth writ application on January 16, 2008.

In the meantime, applicant had obtained an affidavit from Dr. Carter, signed on October 31, 2007, an addendum to Dr. Larkin's original report, signed on October 1, 2007, and another report by Dr. White, signed on December 12, 2007. On the very day that this Court denied applicant's fourth writ, he filed his fifth writ, once again alleging that his forensic evidence conclusively demonstrated that applicant did not murder Melissa Trotter, as well as raising other claims that he had evidence that another person, Robbie Grove, was a suspect in Melissa's murder. Once again, this Court, in an abundance of caution, remanded applicant's subsequent writ to the trial court for additional evidence on the "Robbie Grove" claim, but not on the forensic evidence because that claim had already been rejected in the prior writ. Once again, the trial court considered affidavits, conducted a live hearing, and entered extensive findings of fact and conclusions of law rejecting applicant's claims. We denied relief on applicant's fifth writ on December 17, 2008.

Now, just days before applicant's rescheduled execution, he has filed a pro se motion for a stay based on the same forensic evidence that was submitted with the fifth writ, and applicant's attorney has filed another writ application with a third affidavit signed by Dr. White. This time Dr. White states that he has reviewed autopsy sectional slides of cardiac muscle tissue and nerve tissue as well as samples of lung and fat tissue. He now concludes that "[i]f these tissues were obtained at autopsy, then the tissues are of an individual that has been dead no more than two or three days." He states that "the microscopic appearance of the tissue in this section is entirely incompatible with the body having been left at this location earlier than 29 or 30 December 1998."

So, when did Melissa die? The scientists are all over the board. (They all agree, however, that Melissa Trotter died after Larry Swearingen was arrested. They disagree only on how long after.) Theirs is like the Indian tale of the blind men touching the various parts of the elephant and coming to entirely different conclusions about the animal. (But all the blind men agreed that it was an animal, not a tree. All the scientists agree that Melissa Trotter died after Larry Swearingen was arrested. To the extent they disagree, the disagree only as to how long he must have been in jail when she died.)

At trial, Dr. Carter testified that her autopsy findings were consistent with Melissa having been murdered on December 8, 1998, and placed in the cold, dark, dank environment of the Sam Houston National Forest. She relied, in part, on the level of external decomposition as is outlined in note 3, supra. She also relied upon the fact that slow-growing fungus was attached to Melissa's back-a fungus that takes at least two weeks to develop. She relied on the maggot colonies and activity and the mold on Melissa's body. (The court continues to rely heavily on Dr. Carter's court testimony, but for the fifth time they fail to mention that she submitted an affidavit to the court conceding that she was wrong.) At the hearing on applicant's fourth writ, the expert entomologists-both for the applicant and the State-agreed that the Cynomyopsis fly colonization began on Melissa's body on December 18, 1998. Dr. Tomberlin also noted that this specific fly species is a secondary colonizer that does not "come in" until initial colonization has occurred by other species and the body is in an advanced state of decomposition. Dr. Tomberlin thought Melissa had been in the forest since her death on December 8th. 
(I'm not sure that is correct. I believe it conceded it was possible she was in the forest since December 8th, but believed more probably not. In any case, entomolgy evidence is clearly trumped by histology evidence. Swearingen's initial appeals based on entomological evidence, improperly preserved, should have been denied. His appeals based on organ decomposition and tissue histology absolutely should not have been denied.) 
Dr. Arends thought that she had been killed, then kept in a very cold environment-perhaps frozen-and finally transported to the forest on or about December 18th.

Dr. Carter, in her 2007 affidavit, stated that, based upon her recent review of her internal organs findings in her autopsy report, she now thought that Melissa's body more likely had not been in the forest for more than two weeks, which would be approximately December 17th or 18th (when the secondary fly colonization began). She states no opinion about the date of death, only a revision of her opinion on how long the body was in the forest. 
(But even the court dismisses the bizarre hypothesis that Swearingen killed her, an accomplice preserved her body, then placed it in the forest at a later date. This is the first time it has been mentioned that Dr. Joye Carter admitted she was wrong, and Judge Cochran immediately tries to dismiss Carter's affidavit using a hair-brained theory that no one accepts.)

Dr. Sanchez, the current Medical Examiner for Harris County, testified that he didn't think that Melissa's body had been in the forest environment for more than two weeks, although her dead body was probably somewhere else before that. He thought that the pattern of decomposition was "a little bit unusual." (See above.
Both Dr. Larkin and Dr. White originally thought that Melissa "was dead for far less than the twenty-five (25) days opined by Dr. Carter." (Originally opined by Dr. Carter, and later un-opined by Dr. Carter.) And that "[p]athologists cannot accurately estimate a post mortem internal with the precision that Dr. Carter indicated she was capable of." In their subsequent written opinions, these pathologists were capable of great precision, opining that Melissa did not die until December 29th or 30th, based on their review of the autopsy report's findings, slides, and photographs of her relatively intact internal organs and the lack of significant bloating. 
(This is some of the most embarrassing logic in a concurring opinion littered with embarrassing logic. Drs. Larkin and Carter "opined" that if a body had been left in the forest for a long time, such as claimed by the State, it would under those circumstance be difficult to accurately determine the date-of-death from the condition of the body. Recall that they suggested less than 10% of the body would remain after 25 days. They did not suggest that other near death indicators based upon a well preserved body, specifically tissue histology, could not be accurate within a few days.)

The hallmark of a scientifically sound hypothesis is that it is consistent with, and accounts for, the totality of the known facts. (Being lectured about science by Judge Cochran is like being lectured about fiscal responsibility President Bush or Obama.) So let us assume applicant's hypothesis and see how it accounts for the rest of the facts. If Melissa did not die until December 29th, where was she and what was she doing from her disappearance from applicant's trailer on December 8th until 21 days later? (I don't know.) Why did she still have the remnants of the lunch she ate on December 8th in her stomach when she died 21 days later?  (She didn't. She had the remnants of what she had eaten much more recently in her stomach. Stomach contents won't survived very long, whether the person is alive or not.) Why did she leave her cigarettes and lighter at applicant's trailer?  (It's not clear that those were her cigarettes and her lighter. The DNA testing on the cigarette butts indicates they were not hers.) Who took her and what could that person have done with her for 21 days?  (I don't know.) Why didn't applicant notice Melissa's sudden disappearance from his trailer?  (I haven't found a good summary of Swearingen's version of events, even from his site. That bothers me actually. Nonetheless, in response to Judge Cochran's question: I don't know.) Why was she still wearing exactly the same clothes when she died on the 29th that she was wearing when she disappeared on the 8th? (I don't know.) And, if she was wearing those clothes for 21 more days, why are they in the same condition that they were in on December 8th? (That's a dynamite question. I hadn't thought of that. If Melissa Trotter's body had been lying in the forest for nearly a month, why were her clothes in the same condition they were in when on December 8?)

Why didn't applicant admit to being with Melissa on the 8th? (I don't know.) Why did he not admit to his two friends, the Fosters, that he had told them the day before Melissa's disappearance that he was meeting Melissa for lunch on the 8th? (Don't know.)Why was applicant driving by the cell phone tower on FM 1097, located between his trailer in Conroe and the Sam Houston National Forest, at 3:03 p.m. on December 8th? (Don't know. Perhaps he was driving Melissa to her house, which was within the boundaries of the Sam Houston National Forest.) Why did he lie and say that he was taking his grandmother to the post office in Conroe-many miles south of FM 1097-at that particular time? (Don't know. It wouldn't be the first time, though, that Swearingen tired to establish an alibi.) Why was the distinctive missing half of the pantyhose with which Melissa was strangled found in the garbage can behind applicant's trailer? (That's a damn good question. Why did the police not find them there during there first two searches? Why were they found there only after he had been incarcerated for a week? That suggests someone else had control of those pantyhose. I think the discovery of the pantyhose further exonerates Swearingen.)

Why did Mrs. Swearingen find their trailer house in such disarray when she returned on the evening of December 8th? (I don't know. I guess I would like to understand the term "disarray" somewhat better. I want to know if I'm a suspect.) Why did applicant have scratches and bruising on his face that afternoon? (This appears to be more crappola. She previously described the evidence as "red marks on Applicant's neck, cheek, and back." Red marks, not scratches and bruises. Confirmation bias in action, ladies and gentlemen.) And why did applicant then call the police and report a burglary at his trailer when nothing was missing and then lie to them, saying that he was out of town from 11 a.m. on December 7th until 7:30 p.m. on the 8th? (Don't know. It's pretty clear that Swearingen brought suspicion on himself. It's much less clear, impossible in fact, that he killed Trotter.) Why did applicant tell a former girlfriend on the evening of December 8th that he was in trouble and the police might be after him? (Don't know, but I'm speculating it was because he thought the police might be after him.) Why were fibers similar to those from Swearingen's jacket, from the rug in his trailer, and from his truck found on Melissa's body? (I caution once again that "similar" or "consistent with" fiber and hair evidence is low quality evidence, but better than the snitch evidence they passed off on the jury.) Why were fibers similar to those from Melissa's jacket found in applicant's truck? (Don't know. Perhaps she was in his truck.) Why was a hair that appeared to have been forcibly torn from Melissa's head found in applicant's truck?  (I have no idea how one would tell whether two isolated hairs were forcibly removed by a comb, a brush, a murder, or some other object/person.) Why were torn papers containing Melissa's class schedule and health insurance information found scattered in the road in front of the home of applicant's mother and stepfather on December 17th? (Another damn good question. Swearingen had been incarcerated for a week at that time. Seems to me as if this is even more exculpatory evidence for the State to explain.)

Why was Melissa's body found in the particular secluded area in the Sam Houston forest where applicant had previously taken a date? (Because she lived nearby? Because that's where she was killed?  It does raise again the question on why search teams did not find her there on three occasions.) Why did Melissa's body have fungus on it that takes "several weeks" to develop? (Amicus Dr. Gill-King cautions: "The district court’s reliance on purported fungal growth is likewise improper from a scientific perspective. The fungal growth referenced by the district court is not well developed and is in no way inconsistent with the histological estimates of post mortem interval." The use of purported is interesting. It seems Dr. Carter blew the entire "I see green fungus" thing as well as the date of death. Dr. Larkin writes in his early affidavit: "Although Trotters skin did exhibit slippage, it retained much of its natural color with only a small patch of green discoloration visible in photographs." Carter apparently interpreted this small patch of green discoloration as fungus.) Why, if she died just a couple of days before her body was found, did she have bluish mold all over her body? (Again, the bluish mold "all over her body" is at odds with "the skin retained much of its natural color with only a small patch of green discoloration visible in the photographs. Judge Cochran seems to pick which piece of evidence she prefers to be true, amplifies it, then presents it to the exclusion of any contradictory evidence.) Why did applicant suddenly wipe down the interior of his truck with Armor All and leave two empty containers of Armor All wipes in his garbage? (To clean  his truck, obviously. But beyond that, I don't know. It does raise a real puzzling counter-question. How did the police manage to find the Armor All wipes in his garbage but not the pantyhose that later turned up in his garbage?)

Why did applicant ask a good friend, who visited him in jail, to lie and say that she had been with him on December 8th? (Because he is a liar and you cannot take him at his word.) And why, when he was in jail, did applicant write a letter in Spanish, using a Spanish-English dictionary, that purported to come from a person named "Robin" and send it to his mother? (See above.) Why was the letter able to set out many of the details of Melissa's murder, including the facts that (1) she was wearing red panties at the time she was murdered; (2) the murderer had hit her on the left side of her face (a fact that Dr. Carter noted in her autopsy report); and (3) one of her shoes came off when he "jerked" her into the bushes? (Because the medical examiner included each and every one of those super-secret bits of information in the autopsy report, which he had by then read, and which I have by now read, but which Judge Cochran has not yet read.)

All of this evidence is wildly inconsistent with the hypothesis that Melissa magically "disapparated" from the earth for twenty-one days and then reappeared, as if from suspended animation, dead on the floor of the Sam Houston National Forest on December 29th or 30th. (Wow. I'm pretty sure "disapparated" is not a real word such as dunderhead, dimbulb, or crappola. Other than that, it is a good question. However, I reject the sophisticated legal argument that we should execute Larry Swearingen simply because we can't answer it. As has been made clear by all the medical experts so far involved in the case, he was in jail when she was killed.)
And why was her supposedly living body infested with "secondary colonization" carrion flies on December 18th? This is beyond peculiar. (This is obviously an "Oh, I forgot" item. It doesn't belong here. I thought they reserved their clincher for the snitch testimony.)

When all of the other known facts and evidence are wholly inconsistent with a particular scientific hypothesis, the reasonably objective scientist revisits that original hypothesis, looking for a flaw. (Hahahahahahaha. "Known facts."  Good one.) Although one does not doubt the honesty and sincerity of these medical examiners, their theory that Melissa did not die until December 29th or 30th because of the relatively intact state of some of her internal organs is flatly contradicted by an incredible wealth of other evidence. (Hahahahahaha. I wonder if she realizes that incredible means "not believable." She just described her wealth of other evidence as unbelievable. Finally, I agree with her.) They have made no attempt to account for or explain this other evidence or provide an alternate hypothesis. 
(It is not up to these scientists to crack your case for you. Their job was to interpret the evidence before them as honestly and accurately as they can. Seven different experts have done so on sixteen different occasions, and each has found that Trotter's body was placed in the forest after Swearingen was arrested. No scientist contests that. The police now have the job of figuring out what actually happened. You have the job of coming up with some lame-brain concurring opinion upholding the conviction once the scientific evidence goes entirely against you.)

One plausible explanation, suggested by Dr. Tomberlin, is that it was much colder and wetter on the floor of the forest than at the Conroe airport, many miles south, where the official temperature data was gathered. (Get ready. This is where, after rejecting the sixteen opinions of seven qualified scientists, Judge Cochran attempts a little science of her own.) This is a very shady, damp forest, close to Lake Conroe, filled with towering pines, covered with decomposing vegetation, and containing many low-lying cold pockets. Perhaps the cold, dank conditions acted as a drag on the body's internal decomposition. (Yep. Nothing slows down decomposition like dank.) None of these pathologists expressed any expertise in climatological impact upon decomposition. Or, as suggested by Dr. Sanchez, the variations in the decomposition of Melissa's body are simply "quite unusual." But not unheard of. 
Our "actual innocence" jurisprudence includes the requirement that the newly discovered evidence of innocence must satisfactorily explain all, or at least the vast majority, of the original inculpatory evidence. [Interesting legal claim, which I think is not quite accurate. In any case, I don't see how medical testimony is going to explain how the police couldn't find the body, the pantyhose, or the victim's paperwork until after Swearingen was incarcerated, despite repeated searches.] In this case, the pathologists' opinion concerning the date of Melissa's death is wholly inconsistent with all of the other inculpatory evidence, and applicant has provided no common-sense context for the uncritical acceptance of those opinions. 
("All the other" evidence of Swearingen's guilt is like "all the other" evidence regarding the existence of Santa Claus: of great quantity and low quality. The scientists can no more explain "all the other" evidence of Swearingen's guilt than they can explain away all the evidence of Santa Claus delivering toys on Christmas Eve.)
Texas is one of the very few American jurisdictions that recognizes, in the habeas corpus context, a free-standing claim of actual innocence. We first crossed over the bridge of addressing post-conviction claims of actual innocence fifteen years ago in State ex rel. Holmes v. Court of Appeals for the Third District. And we have not wavered in our basic commitment to permitting an inmate to prove his innocence while enacting a suitably high threshold to weed out the frivolous from the potentially meritorious claims. We do this because (quoting from one of her concurring opinions in another case)
we fail in our primary duty of protecting the innocent and punishing the guilty if we intentionally slam the courthouse doors against one who is, in fact, innocent of wrongdoing. ...[I]f the criminal justice system-even when its procedures were fairly followed-reaches a patently inaccurate result which has caused an innocent person to be wrongly imprisoned for a crime he did not commit, the judicial system has an obligation to set things straight. Our criminal justice system makes two promises to its citizens: a fundamentally fair trial and an accurate result. If either of those two promises are not met, the criminal justice system itself falls into disrepute and will eventually be disregarded.
But in this case, the pathologists' opinion that Melissa did not die until December 29 or 30, 1998, cannot be reconciled with the mountain of inculpatory evidence and therefore cannot be accepted at face value or as sufficient to unquestionably demonstrate applicant's actual innocence of Melissa Trotter's murder on December 8, 1998.

I therefore join the Court's Order.
There you go.

I don't know the basis for Larry Swearingen's most recent stay of execution, other than he now has four more scientists declaring his absolute innocence. Usually, this wouldn't justify another stay.

I think the stay is related to something other than the Texas judiciary's newly found respect for science. I think, but cannot prove, that it might have more to do with Rick Perry wanting to be President of the United States of America. The lag between the first and second execution dates was two years. The lag between the second and third execution dates was two and a half years. Because of the latest stay, it's unlikely Rick Perry will have to deal with this case before the next presidential election.