Thursday, December 20, 2012

The Most Innocent Man on Death Row: Introduction

Yesterday, I announced that I would not be posting for an indefinite period of time. Today I learned that Texas has issued a death warrant for Larry Ray Swearingen. He is now scheduled to be executed on 27 February 2013. That piece of information is apparently sufficient to shake me out of my blogging lassitude. I now feel compelled to write of the case for two reasons.

Reason First: I consider Larry Ray Swearingen to be the most innocent man on death row. I understand that under my definition of actual innocence, there can be no gradations: Either the person is 100% innocent or the person does not fit my definition of actual innocence. By describing Swearingen as The Most Innocent Man on Death Row, I'm saying that I know of no other case in which the person to be executed is so clearly innocent. If Texas executes Larry Swearingen, as they are intent to do, then I claim that it will be the most obviously wrongful, and most obviously shameful, execution in the so called "modern" era.

Reason Second: I believe I may have inadvertently identified the actual murderer.

Given those two circumstances, I am compelled to write, and write with urgency. I have written of his case  twice already: once in this blog and a second time for my unpublished book America's Executioner. I consider my second effort the better of the two, so I will use it to form a good portion of this series of unknown length.

I'll also preface the series by noting that Larry Swearingen, unlike Preston Hughes, is well represented. His attorney is the sincere, dedicated, and capable James Rytting of Hilder and Associates in Houston. Because of the professionalism of James Rytting and others, Larry Swearingen has already survived three execution dates. He has done so because his defense team has brought forth distinguished scientists who insist that it is medically impossible for him to have murdered the victim. The scientists have established to a medical certainty that the victim died no more than a week before her body was discovered in the Sam Houston National Forest. Since Swearingen had by that time been in jail for three weeks, he cannot possibly be guilty of her murder.

I'll first describe his case and the reasons his execution has been stayed already three times. I'll then identify the person I believe may have murdered Melissa Trotter. Whether or not I am correct about the alternate suspect, Larry Ray Swearingen is currently The Most Innocent Man on Death Row.

The Most Innocent Man on Death Row: The State's Case


The Victim
Melissa Trotter was the nineteen-year-old daughter of Sandy and Charles Trotter, the cousin of Texas State Senator Jerry Patterson, a community college student, and a school bookstore employee. Melissa did not return home as expected on the night of December 8, 1998. Her parents began searching immediately.

Melissa's 1997 emerald green Pontiac Sunfire was found at 2 AM, parked in the Montgomery College lot. Her cell phone and some of her schoolbooks were still in the car. Her Winnie the Pooh backpack was not in the car, nor were the books she had been using to study for her final exams. She missed her afternoon history final. She missed her evening work shift.

The State's Case
According to the State's theory of the case, Melissa Trotter was already dead by the time she was to be at work, and dead at the hands of Larry Ray Swearingen. Her body, however, would not be found until twenty-four days later. On January 2, 1999, several hunters came across her clothed remains in the western portion of Sam Houston National Forest, near the western shore of Lake Conroe. She had been strangled with one leg cut from a pair of pantyhose. The ligature was still knotted around her neck.

By the time Melissa's body was discovered, Larry Swearingen had been in jail for twenty-two days. He was the primary suspect in her disappearance. The police had arrested him for outstanding traffic warrants on December 11, just three days after Melissa went missing.

At his trial, the State presented a circumstantial, but substantial case for murder. With respect to the attempted rape and kidnapping charges, however, the evidence was wispy thin.

On December 6, Swearingen met Melissa Trotter and talked with her at length. She gave him her phone number, and they made plans to talk again the next 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. He bragged that if everything went right, he was going "to have Melissa for lunch." Swearingen called Melissa from Foster's house and talked with Melissa about meeting her for lunch and helping her study for an exam.

On December 7, Melissa paged Swearingen. He called her back. She apparently canceled or postponed their lunch date. His co-workers teased him about being stood up. He explained she was taking a test. He appeared to be angry the rest of the day.

On December 8, several witnesses saw Melissa sitting with a male, possibly Swearingen, in the Montgomery College library between 11:30 AM and 1:30 PM. The two of them were sitting by the computers and chatting amicably. Melissa's biology teacher saw her leave with a male shortly after 1:30 PM.

At 2:05, Swearingen returned a page from his friend Sarah Searle. He told her that he would have to call her back because he was having lunch with a friend.

Around 3:00, Swearingen's landlord saw Swearingen's truck arrive. Not long thereafter he saw Swearingen's truck leave. Because the truck had tinted windows, the landlord could not see who was in the truck.

At 3:03, Swearingen placed a cell phone call that utilized a cell tower near FM 1097 in Willis, Texas. The State argued the call was consistent with Swearingen driving from his rented mobile home to the Sam Houston National Forest where Melissa's body was found.

At 4:30, Swearingen placed another cell phone call picked up by a different cell tower near Willis. The State argued the call was consistent with Swearingen returning to his home after dumping Melissa's body in the Sam Houston National Forest.

When Swearingen returned home, he was again observed by his landlord. Swearingen in fact spoke briefly with the landlord.

By 5:30, Swearingen left again, this time to pick up his wife Terry from his mother's house.

Terry Swearingen would later testify that when she and her husband returned home, she noticed their home was in disarray. She noticed also a pack of Marlboro Light cigarettes and a red lighter on top of the television. Neither she nor her husband smoked. Melissa Trotter, however, smoked Marlboro Lights and used a lighter similar to that found in the Swearingen's home.

That same evening, Larry Swearingen called Phyllis Morrison, an ex-girlfriend. Swearingen told her that he was in trouble and that the police might be after him.

On December 9, when the Fosters (Melissa's parents) heard that Melissa was missing, they called Swearingen. Swearingen claimed he did not remember the last name of the girl with whom he had met the day before. When Mrs. Foster reminded him her last name was "Trotter," and that a girl named Melissa Trotter was now missing, the phone went dead.

On December 11, Swearingen told an acquaintance that he anticipated being arrested by Montgomery County authorities.

Also on December 11, Swearingen noticed a patrol officer observing him. Swearingen sped away, leading the officer on a high-speed chase. The chase ended in front of the home of Swearingen's mother and stepfather. Swearingen was arrested on several outstanding warrants. While being placed in handcuffs, he asked that his hands be placed in front of him rather than behind. He explained that his wrist and ribs were sore because he had been in a bar fight the week before. Following his arrest, law enforcement authorities observed and photographed red marks on his neck, cheek, and back.

On December 17, two neighbors of his mother and stepfather collected numerous pieces of torn paper from their street. The papers turned out to be Melissa Trotter's class schedule and some health insurance paperwork her father had given her.

On January 2, Melissa's body was discovered in the Sam Houston National Forest. The location was heavily wooded, secluded, and remote. The police had previously searched the area three times without finding the body. They explained later that they would have had to walk within twenty feed of the body before seeing it.

Larry Swearingen was familiar with the area where Melissa's body had been found. He had driven a date around the vicinity just a few months earlier in his red pickup.

Melissa was laying on her back in a pile of bushes. Her right arm was above her head and slightly to the left. Her sweater, shirt, and bra were pulled up under her arms, exposing her breasts and back. Her jeans were still on. The fly was closed. The right rear pocket was torn downwards, exposing red underwear beneath. A note was in one pocket. The note had been given to Melissa by a friend on the day Melissa disappeared.

Melissa had creases on her back from her neck to her waist. The creases could have been caused by her body laying on the forest debris for an extended period of time.

There were no scratches on her exposed skin as one might expect had see been dragged through the brush. 

One shoe was on and the other was off, laying nearby. There was no soil on her shoes, as one might expect had she walked to that spot. The implication was that she had been murdered elsewhere and carried or dragged to the spot where she was found.

A piece of hosiery was knotted around her neck, as a ligature. The hosiery was one leg from a pair of pantyhose. Swearingen's landlord would later testify that he found the remainder of the pantyhose in Swearingen's mobile home as he was cleaning the trailer for another tenant. Terry Swearingen, Larry wife, would later testify that the pantyhose belonged to her.

Chief Medical Examiner Dr. Joye Carter conducted the autopsy on 3 January. That was one day after Melissa's body had been discovered, 25 days after she had disappeared, and 22 days after Larry Swearingen had been arrested. She did not estimate a time of death. She did not note any evidence of sexual assault. She did not note any defensive wounds or evidence of restraint.

During Swearingen's trial for capital murder, Dr. Carter would testify that death was caused by asphyxia due to ligature strangulation. The lack of defensive wounds, such as broken fingernails and the difficulty of tying an elastic nylon around a struggling victim, suggested that the Melissa may have been unconscious when the ligature was applied.

The neck appeared to have suffered a sharp-force injury that would have been inflicted before death while the blood continued to circulate. Although there was subsequent animal activity and teeth marks at that same area of the neck, a cut with a knife could not be ruled out.

The left side of Melissa's face was much darker and more decomposed than the right. That would be consistent with her having sustained a bruise on the left side of her face. Animals are drawn to blood and a bruise would collect blood close to the skin's surface.

Melissa's tongue had a deep bruise, possibly caused by a bite. Such a bite would be consistent with Melissa being struck under the chin or biting down while being strangled.

There was no evidence of penetration of the vagina, anus, or mouth. There was, however, discoloration on the vaginal wall. That discoloration could have been a bruise caused during sexual intercourse within three days of death, possibly on the day of death. Dr. Carter had not mentioned that bruise in her autopsy report.

Based on the state of decomposition, including the presence of fungi that take several weeks to develop, Dr. Carter estimated Melissa Trotter's death occurred 25 days prior to the discovery of her corpse. That matched exactly the date of Melissa's disappearance. Dr. Carter had not estimated a time of death in her autopsy report.

Melissa's stomach contents included a French fry-like form of potato, some chicken, and a small amount of greenish, vegetable material.

The State claimed the stomach contents were consistent with the tater tots Melissa had had eaten while at Montgomery College. The State claimed further that chicken was consistent with Chicken McNuggets Melissa might have purchased at the nearby McDonald's. Dr. Carter testified that a person's stomach will usually not empty in less than two hours, and that any food within the stomach at death will remain there.

Criminalist Sandra Musialowski, from the Texas Department of Public Safety, testified that several fibers recovered from Melissa's jacket were consistent with fibers from Swearingen's jacket.

Criminalist Musialowski testified also that several fibers found on Trotter were similar to seat material from Swearingen's vehicle. A few other fibers found on Trotter were similar to fibers from the headliner of Swearingen's truck and from the carpet in his home.

Criminalist Musialowski testified also that three hairs found in Swearingen's truck were microscopically similar to Melissa's hairs. Those hairs still contained the anagen root, indicating they had been forcibly removed.

Officer Ivan Wilson, also from the Texas Department of Public Safety, testified regarding a paint fleck found on Trotter's clothing. He testified that the quantity was "an insufficient amount to do all the testing that I normally do." The fleck, however, was similar in appearance to paint on Swearingen's red pickup.

A Luminol test conducted on the seats of Swearingen's truck indicated that they had been wiped down with Armor All. Two empty containers of Armor All wipes had been found in the garbage at Swearingen's home.

While Swearingen was in jail awaiting trial, a cellmate asked him whether he had committed the murder. Swearingen replied, "Fuck, yeah, I did it." Swearingen added that he was just trying to avoid the death penalty.

Swearingen's Fabrications
Larry Swearingen provided substantial assistance to the State of Texas in their effort to convict him. On three occasions, he clumsily attempted to fabricate exculpatory evidence. These clumsy efforts were used against him at trial.

Swearingen's first clumsy effort was claiming that his house had been burglarized.

Part of the circumstantial case presented against Swearingen at his trial was that his house was in disarray when he returned there with his wife. His wife noticed the disheveled state of their home as well as the strange cigarettes and the strange lighter. Apparently in an effort to explain the tumultuous state of his home, Swearingen contacted the police and reported a burglary. He falsely claimed to have been out of town from 11:00 AM on 7 December through 7:30 PM on 8 December. He also falsely claimed that someone had stolen his VCR and his Jet Ski. The police, however, found no sign of any prying mechanism on the doors or windows to his home. His Jet Ski was located at a repair shop where Swearingen had dropped it off for maintenance.

Swearingen's second clumsy effort was asking a friend to provide an alibi for him.

On 9 January, When Swearingen's friend, Elyese Ripley, visited him in jail, Swearingen asked her to say that she had been with him on the day Melissa disappeared. He asked her to say that they had gone to the Texaco-McDonald's restaurant near Montgomery College.

Swearingen's third effort was by far the most clumsy. While in jail awaiting trial, he attempted to compose an exculpatory letter from a mystery woman.

Swearingen foolishly decided to write the letter in Spanish, a language with which he was clearly less than fluent. He relied heavily on an English-to-Spanish dictionary. The resulting letter was so garbled and so ungrammatical that precise translation was impossible. The State's translator, Geneveva Perez, attempted an "official" translation. She testified that the letter "was written with all verbs in the infinitive form." She was forced to add comments "about certain words that actually didn't mean what they were intended to mean." She agreed that "three or four Spanish-speaking people would have different interpretations." Nonetheless, she was able to discern a fictional narrative. That narrative was of somebody name Ronnie who took Melissa Trotter to the forest and strangled her.

Ms. Perez' best-effort translation follows immediately.
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.
According to the State, this purportedly anonymous, exculpatory letter included details of the crime that could have been known only to the person who murdered Melissa Trotter. Those details included the fact that Melissa was injured on the left side of her face, that her neck was cut, that one of her shoes had fallen off, that she was laid on her back among the bushes, and that she was wearing red underwear.

The Most Innocent Man on Death Row: The Defense Case

The Defense Case
Larry Swearingen offered a brief affirmative defense, but need hardly have bothered. He had impeached himself so thoroughly by his efforts to manufacture exculpatory evidence that the jury was unlikely to believe anything he said. Nonetheless, Swearingen testified that he did in fact encounter Melissa Trotter that day at the college, but only briefly. She was talking to another man. Swearingen did not go to McDonald's or anywhere else with her that day. Instead he went from the college to see his grandmother.

Swearingen's grandmother corroborated his testimony. She testified that he picked her up and took her to the post office around 2:00 PM, and that he was with her until around 2:50 PM. Assuming the grandmother testified truthfully and accurately, then Larry Swearingen was probably not responsible for the disappearance and murder of Melissa Trotter.

During their cross-examination of the grandmother, however, the State called into question her memory of both the date and time. They questioned her also about why she had not earlier informed the authorities of her grandson's alibi.

In addition to the alibi testimony, Swearingen's defense consisted of alternative explanations for the State's evidence of attempted rape. With respect to the state of Melissa's sweater, shirt, and bra being pulled above her breasts, the defense elicited testimony that it could have been caused when her body was dragged through the brush.

With respect to the possible vaginal bruise, the defense called its own medical expert. That expert disputed Dr. Carter's testimony that such a bruise could be sustained during normal sexual intercourse. The expert testified instead that Melissa Trotter suffered pelvic inflammatory disease, and that pelvic inflammation could cause such vaginal discoloration.

The Most Innocent Man on Death Row: The Jury


An Uncritical Jury

The State of Texas presented substantial circumstantial evidence that Larry Swearingen murdered Melissa Trotter. Swearingen, after all, was one of the last people to see Melissa alive, and the murder weapon (the pantyhose used as a ligature) was found at his home. There were, however, several curious aspects of the State's case that might have given a skeptical jury pause.

One cause for concern should have been the precision of the medical examiner's estimated date of death. Based on the state of decomposition and the presence of fungi, the medical examiner placed Melissa's death as having occurred 25 days prior to the autopsy. That timing conveniently corresponded to the very day Melissa disappeared. Such convenient precision would have suggested that the State's expert might have been willing to bias her findings in the State's favor, at the expense of her scientific integrity.

A second cause for concern should have been the pristine state of Melissa Trotter's stomach contents. The medical examiner testified she found a French fry-like form of potato and some chicken in Trotter's stomach. Those contents corresponded nicely with the tater-tots and the McNuggets the State presumed Trotter had eaten in the company of Swearingen. Dr. Carter testified that a person's stomach will usually not empty in less than two hours, and that any food within the stomach at death will remain there.

While food may remain in the stomach after death, it would seem unlikely that the food would remain so clearly identifiable after twenty-five days in a dead and decaying body. The stomach is more akin to a garbage disposal than it is to a Tupperware container. The stomach is a place of acids and enzymes designed to quickly disassemble food into an unrecognizable mess. Is it possible that after twenty-five days in a decaying stomach, masticated tater-tots would be easily recognizable as a French fry-like form of potato?

A skeptical juror might have wondered whether the stomach contents disputed, rather than substantiated, the medical examiner's estimated date of death. Perhaps, Melissa Trotter had been murdered only soon before her body was discovered. If so, Larry Swearingen would have been in jail when she was murdered. If so, Larry Swearingen would be factually innocent.

Adding to concerns about the date of Melissa Trotter's murder, the authorities found fresh blood under one of her fingernails. DNA testing of that blood excluded Larry Swearingen as the contributor.

Trial testimony about the blood came from Chief Medical Examiner Dr. Carter and from two employees of the Texas Department of Public Safety crime lab. Taken as a whole, their testimony was that the initial testing of fingernail scrapings revealed no human DNA. A later inspection, however, revealed some "very tiny, bright red flakes." The flakes had a total size "no bigger than ... a point of a pencil." The flakes tested positive for human blood.

Given that the flakes were blood, and given that they were still bright red, the flakes were too well preserved to have been exposed to the elements for more than a couple of days. No one disputed the conclusion that the flakes were freshly deposited, within days of their discovery.

DNA testing of the flakes produced a profile consistent with a male, but inconsistent with Larry Swearingen. The DNA profile was run through the standard database system to search for a match, and no match was found. The DNA profile was then compared against that of six individuals identified by Swearingen's defense team. Again, no match was found.

Before the jury, the State argued that the blood came not from Melissa's assailant, but from contamination unrelated to the crime. State witnesses testified that the blood could have come from a deputy present during the autopsy, a deputy who claimed he had cut himself shaving earlier that morning. Alternatively, the state witnesses suggested that the flakes could have been circulating through the morgue's air conditioning system, that they wafted through a vent, and that they landed unnoticed on the exposed fingernail scrapings.

To a skeptical juror, the evidence would have described conflicting versions of events. In the State's version, Larry Swearingen dined with Melissa Trotter, sexually assaulted her, and then killed her, all on 8 December. That story would place Melissa's death twenty-five days before the autopsy, just as the medical examiner testified.

The alternative version would have been that the pristine blood beneath Melissa's fingernails and the nearly pristine food found in her stomach were evidence of a murder that occurred not long before her body was found. This alternative version would better explain the failure of the search parties to find Melissa's body, though they searched the area three times.

Since Larry Swearingen had been jailed three weeks prior to the discovery of the body, the evidence that the murder occurred soon before the body was discovered was evidence of Swearingen's innocence. To a skeptical juror, the evidence of a recent murder might have raised reasonable doubt about the State's case. The evidence might have caused a skeptical juror to vote Not Guilty.

A Compliant Jury
To obtain a conviction for capital murder, the State bore the burden to prove beyond a reasonable doubt that Larry Swearingen not only killed Melissa Trotter, but that he did so while sexually assaulting her or while kidnapping her. If the State failed to prove beyond a reasonable doubt that Larry Swearingen sexually assaulted or kidnapped Melissa Trotter, then Swearingen would not have been eligible for the death penalty.

While the circumstantial evidence of murder was substantial, the evidence of sexual assault was wispy thin. Dr. Carter, the State's own medical expert, testified that Trotter's body showed no defensive wounds, no indication of restraints, and no scratches. Dr. Carter testified also that she found no evidence indicating penetration of the vagina, anus, or mouth. Instead, Melissa was found with her pants on and the zipper closed. The arrangement of her sweater, shirt, and bra were consistent with her body being dragged along the forest floor.

The evidence of kidnapping was even thinner than the evidence of sexual assault. The evidence of non-existent.

When the jury found Larry Swearingen guilty of capital murder, it simply relieved the State of its burden to prove sexual assault or kidnapping beyond a reasonable doubt. It removed the State of its burden to offer any proof whatsoever.

The Most Innocent Man on Death Row: The Appellate Court


A Compliant Appellate Court
In his appeal to the Texas Court of Criminal Appeals, Larry Swearingen claimed that the State had failed to prove beyond a reasonable doubt that he had kidnapped or sexually assaulted Melissa Trotter. While the CCA acknowledged the evidence was weak, they nonetheless denied his appeal. I excerpt below from the CCA opinion in Swearingen v. State (2003).
Based on the circumstantial evidence presented at trial, a rational jury could have concluded that: Trotter left the college with Swearingen in his truck. After she ate some chicken and green vegetables, he made sexual advances which she rejected. This rejection upset him and he hit her on the left side of her face. Then, through the use of the force or intimidation created by having hit her, he restrained her and substantially interfered with her liberty by confining her in his truck while moving her to the forest without her consent and that he did so with the intent to prevent her liberation by either secreting her in a place where she was not likely to be found or by using or threatening to use deadly force. 
A rational jury could also have concluded that at some point during the restraint, knowing that Trotter was unconscious or physically unable to resist, Swearingen intentionally committed acts in furtherance of his intent to have sexual relations with her, such as pulling up her bra and possibly penetrating her vagina. ... A rational jury could then find that Swearingen did attempt to, and succeeded in causing Trotter's death in the course of the same criminal episode. ... 
Based on the circumstantial evidence and the multitude of possible scenarios suggested by the physical evidence, a rational jury could have entertained a reasonable doubt regarding Swearingen's guilt. The question, however, is whether a rational jury would have necessarily entertained a reasonable doubt regarding the aggravating elements of the offense. 
Each piece of evidence supporting the findings of kidnapping or sexual assault might appear weak and tentative when viewed in isolation, even in the light most favorable to the verdict. The forensic evidence was inconclusive, and in many cases the expert witnesses could not conclude that one explanation was more likely than not. But they also could not rule out certain possibilities, such as the existence of a bruise or a knife wound, or that Trotter was unconscious when the ligature was applied. ... 
While each piece of evidence lacked strength in isolation, the consistency of the evidence and the reasonable inferences drawn therefrom, provide the girders to strengthen the evidence and support a rational jury's finding the elements beyond a reasonable doubt.

The Most Innocent Man on Death Row: Blow Flies


Of censuring Rome? Rather a ditch in Egypt
Be gentle grave unto me! rather on Nilus' mud
Lay me stark naked, and let water-flies
Blow me into abhorring! rather make
My country's high pyramids my gibbet,
And hang me up in chains!
                             -- William Shakespeare, Antony and Cleopatra

Blow Flies to the Rescue
Blow flies were so named for the effect their maggots have on decaying meat. Blow flies are known also as bluebottles, greenbottles, cluster flies, and carrion flies. They are frequently the first insects to invade a dead body, since they can smell carrion from ten miles distant, and since they can travel faster than their land-based counterparts. Upon arrival, the female deposits her eggs onto the body, sometimes within minutes of death, but only during daylight, and only if the air is not too cold. The eggs soon hatch and begin their predictable, temperature-dependent progression through their larval stages. So consistent is the development that blow fly larvae can provide an estimate of how long a body has been dead.

More traditional time-of-death estimation techniques become increasingly unreliable after three days postmortem. Blow fly larvae, on the other hand, can provide reasonably accurate date-of-death estimates for up to four weeks postmortem. Any such entomological estimate, however, would require that the specific species be identified and the ambient temperature history be well known. An accurate estimate would require also that the entomological evidence be properly preserved.

While blow flies have long been associated with death, they saved Larry Swearingen's life.

At least they did so for the time being. A day before Swearingen's first scheduled execution, the Texas Court of Criminal Appeals granted him stay to consider new defense claims that blow flies proved he was in jail when Melissa Trotter's body was deposited in the Sam Houston National Forest.

Sometime after his standard appeals were denied, Swearingen's appellate team turned their attention to the previously ignored insect evidence. In her autopsy report, Dr. Carter noted "postmortem insect and animal activity" and that the "oral cavity contained fly larvae." Swearingen's defense team attempted to secure the entomological evidence from the State. The State opposed the release of such evidence. At a post-conviction hearing, the State argued:
Specifically, the insects, obviously, the State assumes this stuff is going to get examined and corroborate the evidence at trial. In the unlikely event it shows a few days less than 24 days, 18 days or something, the question is, will the Court then be able to find that there’s a reasonable probability the outcome of the trial would have been different with that information. And based on all the other facts in the case, I don’t think you can say that, because we still know, based on other facts, Larry took her with him that day, Larry killed her that day, because she still had food contents, what was presumably food in her stomach.
Despite the State's babbling argument, the State court agreed with the State prosecutors.  Later, however, the Federal court disagreed with the State court, and Swearingen was allowed to see the evidence. The State provided a petri dish that contained numerous desiccated pupae, larvae, and insect parts. Forensic entomologist Dr. Dael Morris described the dish and its contents.
Exhibit 218 consisted of 11, 3 1/2", standard plastic petri dishes loosely containing "scrapings" collected from Melissa's articles of clothing during autopsy and subsequent forensic examinations. It appears that insect material from each item of clothing was dislodged onto the catch papers and subsequently funneled into the petris. As expected, the contents of each petri largely consisted of a dried hodge-podge of dehydrated insect larvae and other insects and insect parts, fibres and other non-insect materials. I examined all of the exhibits for insect evidence, including the articles of clothing, inside and out, and sorted through the insect material contained in the petris. Representative insect samples were submitted to the University of West Virginia laboratory for DNA analysis in order to determine species. Species determination is critical in the final analyses since developmental periods vary between different species of calliphorids. 
Exhibit 218 petri dishes contained dried remains of insects including many dehydrated fly larvae (maggots) of various ages. The plastic petris were of the variety that cannot hold preservative fluids. Indeed, the plastic petris are the variety designed to allow air to enter to facilitate the growth of microbiological organisms. Live insect specimens placed in them would have continued to develop until they were either eaten by the predatory insects, ants and beetles, also collected into the same containers, or until they eventually succumbed to suffocation once exhibits were sealed into plastic bags. Continued development in the containers was expected since there was no indication in any of the documentation read in advance, especially the pathology report, that any insect specimens had been killed and preserved. 
Hundreds of dehydrated maggots were sorted in exhibit 218, including Calliphoridae, Piophilidae and Spaeroceridae, There were few signs of fly development beyond the third instar larval stage. A single blow fly adult had evidently emerged in the petris to be partially consumed by insect predators. Seen in three fragments, the head, a partial thorax and a partial abdomen it was identified as Cynomyopsis cadaverina (Diptera: Calliphoridae) through classic taxonomic treatment of what was left of the head. 
The fragmented remains of a single calliphorid pupal case from which the adult fly evidently emerged was also seen. This was not a surprise since a single newly formed calliphorid pupa was observed in the photographic evidence. There were no other signs of pupae. This newly formed pupa was the key specimen in determining the age of first colonizing flies.
Though Dr. Dael Morris does not so explicitly state, her analysis was conservative in that it tended to estimate the earliest possible date of infestation. Since the flies were stored in a fashion that allowed them to continue their development, some of their growth could have occurred after the body was discovered.

As an example, assume a scenario in which the body was placed in the forest in the morning, was colonized within minutes, and was discovered in the afternoon. Assume further that the entomological evidence was stored in a manner that allowed development for seven days, but no longer. Assume finally that an analysis conducted years later determined that the oldest of the pupae was seven days old. In that case, the analyst would be able to declare only that the body had been deposited in the forest no sooner than seven days prior to discovery. That would be a conservative estimate.

While such a finding would be technically correct, given its careful wording, it would seriously overstate how long the body had been in the forest before discovery. With that qualification in mind, consider Dr. Morris' conclusion.
Results of DNA analysis, taxonomic examinations and autopsy and death scene photographic evidence indicate that Cynomyopsis cadaverina was the first fly species to colonize Melissa Trotter's remains. ... death scene temperatures were not favorable for blow fly egg laying until December 18th, and this date is consistent with the stage of development of C. cadaverina in this case.
Even given its conservative nature, Dr. Morris' entomological analysis indicated that Larry Swearingen was in jail when Melissa Trotter's body was placed in Sam Houston National Forest.

Dr. James Arends, a consulting entomologist, substantiated Dr. Morris' analysis and conclusion. I excerpt from his report.
Melissa Trotter's body according to the autopsy was recovered in January 2, 1999, from the San Jacinto National Forest, located in Southeast Texas, near Conroe, Texas. Dr. Carter did not provide a date of death in her autopsy report, but apparently testified that fungal growth and insect activity, in her opinion, indicated that Ms. Trotter had been dead for 25 days, which put her death exactly on the December 8, 1998, the date she was last scene by state witnesses. 
The autopsy report contains several remarkable observations that indicate a date of death later than December 11, 1998. ... By autopsy, there is also a remarkable absence of animal activity, which is unlikely in a corpse exposed for 22 days in the environment where it was found. Finally, Ms. Morris identified a single species of blow fly, C. Cadeverina, from the insect material collected from the evidence in this case, whereas a body exposed outdoors for the length of time that the State maintains would in all probability exhibit colonization by several species. ... 
It is my forensic entomological opinion, based on the information that I have been presented, that the temperature conditions for December 1998 and the developmental stages of fly larvae and pupae reported by Ms. Morris that Ms. Trotter's body was exposed and colonized by blow flies after December 11, 1998.
Dr. Arends repeatedly references December 11 because that was the date that Larry Swearingen was jailed. If Melissa Trotter died after December 11, then Larry Swearingen could not be guilty of her murder.

Dr. Arends dated his report as "this 19th day of January, 2007." Larry Swearingen was scheduled for execution five days hence. Four days hence, one day before his execution, the Texas Court of Criminal Appeals granted Larry Swearingen a stay.

The Most Innocent Man on Death Row: Autolysis


It would take them two years to do so, but the Texas courts would eventually deny Swearingen's bug-based appeal and bring him for a second time within one day of execution. In the meantime, Swearingen's appellate team had moved away from entomological arguments and focused instead on an observation Dr. Arends made in his initial entomological report. I present below another excerpt from Dr. Arend's earlier report.
Dr. Carter's description of internal organs indicates substantially less autolyzation than would be expected if Ms. Trotter had been dead under temperature conditions indicated by the Conroe, TX data. The weight in grams for internal organs in Dr. Carter's reports indicate only a reduction in weight due to dehydration of only 30 percent, which again indicates exposure in the San Jacinto Forest after December 11, 1998.
Autolysis is from the Greek words for "self" and "splitting." Autolysis is the digestion of cells or tissues by their own enzymes. Simply put, autolysis is self-digestion. A corpse is consumed not only by scavengers large and small, it is consumed by itself.

Some internal organs are particularly susceptible to autolysis. The pancreas, for example, can begin to liquefy within hours of death. The spleen, the brain, the liver, and the gastrointestinal mucosa (lining) will autolyze within a week. A variety of other internal organs self-digest just as quickly.

Drs. Glenn Larkin and Lloyd White prepared separate reports for Swearingen's appellate team. In their reports, they provided estimated dates of death based on the autolysis (or lack thereof) of the internal organs. Both doctors were well qualified to make such an estimate. Each was board certified in forensic pathology. Each had testified as an expert witness in numerous trials. Dr. White had performed hundreds of autopsies. Dr. Larkin had performed more than two thousand.

Each of the two forensic pathologists prepared multiple reports for the Court and the appellate team. The reports focused primarily on the decompositional state of the internal organs. I excerpt below from Dr. Larkin's various reports, presenting information on less than the complete set of organs he discussed.

Regarding the pancreas:
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 or December 29, 1998. ... Pancreatic cells produce digestive enzymes upon death ... Liquefaction of the pancreas to the point it loses 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.
Regarding the brain:
Dr. Carter states that the brain was in a "semiliquid" 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 ... hematomas. Dr. Carter was also able to ... exclude preexisting lesions. ... 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. Dr. Carter's description of brain tissue, therefore, strongly confirms that Trotter's body was left in the woods at least two weeks after the date on which Mr. Swearingen was incarcerated.
Regarding the liver:
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 losses integrity and autolyzes relatively rapidly, forming gas bubbles as it does, which makes it ... 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 that would have formed relatively soon after exposure under conditions found in the Conroe area in December 1998 and January 1999.
Regarding the mucosa:
Mucosa is a fragile tissue that readily decomposes under temperature conditions such as those reported for the Conroe area in December of 1998 and January of 1999. The gastric mucosa and intestinal mucosa do not decompose in a living organism due to the protective enzymes that these tissues secrete 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 in the Sam Houston National Forest 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 day.
Dr. Larkin also made an observation that seemingly should have been obvious to the medical experts from the very beginning:
Furthermore, Dr. Carter 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 between December 8, 1998 and January 2, 1999.
In other words, if Larry Swearingen had killed Melissa Trotter and deposited her body in the Sam Houston National Forest, he would have obviously had to do so before 11 December when he was arrested. If Trotter's body had been in the forest for that length of time, then it would have weighed less than twenty pounds when it was discovered. Instead, it weighed over one hundred pounds, almost as much as it did during her last doctor's visit.

Dr. Luis Sanchez also determined that Melissa Trotter's body had been placed in the forest well after Larry Swearingen had been jailed. Dr. Sanchez had replaced Dr. Carter as the Chief Medical Examiner of Harris County. Because of controversy during Dr. Carter's term as chief medical examiner, Dr. Sanchez reviewed a number of autopsies conducted under her watch. One of the autopsies he reviewed was that of Melissa Trotter.

At an evidentiary hearing, Dr. Sanchez not only testified he could find no evidence of vaginal bruising, he testified that Melissa's body could not have been in the woods any longer than ten to fifteen days. The transcript segment below deals only with his assessment of the pancreas.
A. You know, my opinion was -- my opinion is that, based on the evidence that I have reviewed, it is unlikely that the body was there in that field for over 10 to 15 days. 
Q. Particularly, the basis of that opinion, if you look at the pancreas, what does it describe? 
A. You know, the pathologist described the pancreas. It gave the weight of the pancreas and also the description of the morphological features of the pancreas. 
Q. And was she able to remove this pancreas for observation and sectioning? 
A. Yes. 
Q. And in your experience, does the pancreas autolyze virtually completely within a matter of days? 
A. Well, it really depends on the circumstances. But it's one of those, again, organs of the body that tends to autolyze quite rapidly. 
Q. In fact, it may, under hostile conditions, autolyze completely within, say, 48 hours? 
A. Well, I wouldn't say within 48 hours, but sometimes quite quickly, yeah, within days. 
Q. What does it mean for it to be autolyzed? 
A. That means it's, it's the breakdown of the tissue due to their own, again, enzymes and chemicals. It's not due to bacteria. It's due to the breakdown of those cells that are releasing enzymes that basically break down the tissue. 
Q. And once the organ is completely autolyzed, can the pancreas be sectioned and examined for destruction? 
A. No. If it's autolyzed, it's become like liquid, liquefied.
Based on the state of Melissa Trotter's internal organs, Drs. Larkin, White, and Sanchez established with scientific certainty that the body had been left in the forest less than two weeks prior to its discovery. The body had, in fact, probably been there less than three or four days.

Larry Swearingen was factually innocent.

The Most Innocent Man on Death Row: Recantation


Given what they had learned from Drs. Larkin, White, and Sanchez, Swearingen's appellate team tracked down Dr. Joye Carter. Confronted with the evidence detailed by Drs. Larkin, White and her successor Sanchez, Dr. Carter prepared an affidavit recanting her trial testimony that Melissa Trotter had been murdered on 8 December.
My name is Dr. Joye M. Carter. The following statements are, to the best of my knowledge, true and correct:
I am presently the Chief Forensic Pathologist for Marion County, Indiana. I previously held the position of Chief Medical Examiner of Harris County, Texas. On January 3, 1999, in my capacity as Harris County Medical Examiner, I performed the autopsy of Melissa Trotter ... 
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, including marked decomposition of the head and neck region, and on the degree of maggot activity in this region of the body. I also remarked on the presence of fungal growth, noting that these organisms thrive in dark, dank and wet environments and are slow growing.
Before actually recanting her testimony in her affidavit, Dr. Carter would first blame others for her horrifically bad estimate of Melissa Trotter's date of death. She would blame the attorneys for not asking her the right questions, and blame unnamed sources for not providing her with valuable information. I excerpt that portion of her affidavit below.
Review of my 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. Instead, the focus of the prosecution and the defense was on whether the forensic evidence indicated a rape or kidnapping had occurred. The majority of the questions from both sides were directed at whether autopsy findings indicated vaginal bruising, blunt trauma to the head, and whether the cause of death was asphyxiation by ligature or a sharp forced entry wound to the neck. 
For purpose of making this statement, I have reviewed the autopsy report of Melissa Trotter and autopsy photographs in her case. I have also reviewed several pieces of forensically important information that, to the best of my recollection, were not made available to during [sic] trial or pretrial proceedings. This information includes a video of the crime scene dated January 2, 1999, the date the body of Melissa Trotter was recovered from the Sam Houston National Forest, medical records giving Melissa Trotter's weight before she was reported missing, and temperature data showing daily high, low and average temperatures in the Conroe, Texas area for the period December 8, 1998 through January 2, 1999. ... 
The forensic opinions, herein, address the significance of autopsy findings made during the internal examination of Ms. Trotter 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 or defense had asked me to address the significance of findings made pursuant to the internal examination of Ms. Trotter's body.
After blaming the living in her affidavit, Dr. Carter blamed the dead. She claimed there was something unusual about Melissa Trotter's body. Dr. Carter suggested that the body's external decomposition indicated a date of death twenty-five days earlier, but the body's internal decomposition indicated a date of death no more than two weeks earlier. It was this "strikingly uneven" decomposition, coupled with the inadequate questioning of counsel, that caused her to testify to a date of death that only coincidentally corresponded with the State's theory of the case.
Decomposition in this case was strikingly uneven. The decomposition seen in during [sic] the external examination of the body, particularly of the head and neck region, was substantial. The autopsy report and photographs show partial skeletonization of the head and neck region due to decomposition and insect and mammalian scavenging. As stated in the report, soft tissue was absent from the nose and midfacial areas, and the tongue was dark due to decompositional changes, and there was skin slippage and slippage of the scalp. 
The amount of decomposition described pursuant to the internal examination of the body appears less advanced. 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 [sic] known to autolyze quickly. At room temperature, it is not unusual for these organs to liquefy within days. In this case, the body was found exposed in relatively open, only partially shaded space. Temperatures [sic] data indicates [sic] and [sic] average temperature of approximately 50 degrees, with high temperatures occasionally reaching the mid-seventies. The presence of these organs in the condition described at autopsy supports a forensic opinion that the body of Ms. Trotter was not exposed in the Sam Houston National Forest until some time after December 12, 1998. These internal findings support a forensic opinion that the body had not been exposed more than two weeks in the forest environment.
In the last paragraph of her affidavit, Dr. Carter addressed the awkward issue of the body's weight.
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. Whether the process of decomposition results in liquification or in desiccation of body tissues, substantial weight loss will normally occur in bodies left for a three week period in the type of environment in which Ms. Trotter's body was found. In this case, the weight of the body nude at autopsy (105 lbs) was only four pounds less than her weight at her doctor's office (109 lbs) two weeks before her appearance. ... This indicates that Ms. Trotter's body lost less than 4% of its weight from the time the body was left in the woods to the time it was autopsied, and supports a forensic opinion that Ms. Trotter's body was left in the woods within two weeks of the date of discovery on January 2, 1999.
Drs. Larkin and White had estimated the body had been in the forest less than a week. Dr. Carter corrected her previous, potentially lethal, time-of-death estimate from twenty-five days to less than two weeks.

In any case, Dr. Joye Carter joined Drs. Dael Morris, James Arends, Glenn Larkin, Lloyd White and Luis Sanchez in declaring and affirming that Larry Swearingen was in jail when Melissa's Trotter's body was placed in the Sam Houston National Forest.

Larry Swearingen was factually innocent.

The Most Innocent Man on Death Row: Stalker


A Stalker
As Swearingen's appellate team was making progress proving someone else must have murdered Melissa Trotter, they were stunned to learn that the State had long known that Melissa Trotter was being stalked and that her life had been threatened shortly before she disappeared. Well before Melissa's strangled body was found, the sheriff's department took reports from Lisa Roberts and Cora Sutton that an unidentified caller had threatened to "choke the life" out of her.

The State had never informed Swearingen's trial or appellate attorneys of these reports. Instead, the State suppressed all information relating to this life-threatening stalker as they sought to put Larry Swearingen to death.

Lisa Roberts' affidavit follows in its entirety. 
My name is Lisa Roberts. I swear to the best of my knowledge, the following is true and correct: 
1. In 1998, I was employed at League Line Marina Resort on Lake Conroe, Conroe, Texas. I was working in the phone room or call center. My job was to try to call possible customers and get them interested in the resort. About ten people worked in the phone room at this time, including Melissa Trotter. Robert Graham was our supervisor. 
2. Around November of 1998, Melissa began receiving phone calls that seemed to upset her. At first, she would hang up real abruptly. I'd ask her during a break what was going on, and she'd say something like, "men." I was pretty sure the problem wasn't customers, but Melissa did not say who was bothering her. 
3. As I recall, it was not too long before the time Melissa disappeared, she got phone calls that really upset her. Cora, who also worked in the call center, would patch the phone calls through to Melissa. Melissa broke down and started crying. She said "he won't quit calling." Cora patched another call through, and I picked up Melissa's phone. 
4 The caller thought Melissa was on the line and started saying completely foul things. He said: "You're a fucking bitch," and swore he was "going to choke the life out of me," meaning Melissa. He went on, saying that he was going to get her back for what she did to him. I remember him saying, "I'll strangle you: I'll choke the life out of you. I'm going to fuck you while you die." I started yelling back and he realized Melissa was not on the phone. That was the first phone call I took. 
5. The caller phoned again, and I picked up the phone again. He told me that he was going to "lick" Melissa's cheek, and "right before she took her last breadth," he said, "I'm going to kiss you on the lips for the last time." 
6. That night, the calls kept coming for an hour and a half until it was time to quit work. Everyone's numbers were down in the phone room because the calls took all our attention, except for one girl who did not want to make it her business. When he'd call, we would try to "star-69" the phone call in order to I.D. the caller, but he was using a private line. 
7. As I remember, Mrs. Trotter came out and picked Melissa up after work. I believe Melissa's own car was still in the parking lot when I returned to work the next day. That previous night was the last time Melissa worked at League Line Resort. She may have come out to pick up her check. I heard Melissa started working at Academy a few days later, but I didn't see her again after that night. 
8. While Melissa was working at League Line, this one guy picked her up three times, as I remember. The first time Melissa seemed O.K. about it. The second time he came to get her, Melissa said "Oh god, oh god." Nickie Mains and I confronted her as the guy was pulling up. I said she did not have to get in the car with anyone she did not want to. I told her I'd get my boyfriend. Melissa said, "You don't know what that will do: that'll cause problems." 
9. The night guard would not let the guy past, so he parked on the side of the road outside the entrance. The first two times he came to get Melissa, he parked in the dark. The third time he came to get Melissa, she was scared to death. We told her not to go, and when she insisted she had to, we made her promise to call us when she got home. She called forty-five minutes later. On this third occasion, this man parked in the light and I was able to see him and his car. He was driving pick-up, full size, and older model, light blue in color. I did not know who the person was and Melissa did not tell us his name. 
10. I know who Larry Swearingen is. I went to school with him. I had at least five classes in junior high and high school with him, including auto repair and a math class. The man who picked Melissa up was not Larry Swearingen. The voice on the phone was not Larry Swearingen's voice. 
11. I learned that Melissa had disappeared from Cora. She came into work and plopped own the paper, the Courier Journal, which carried the story. At first, we thought that Melissa had left home because she was tired of her mother running her life. Melissa used to complain about her mother's interference. For example, Amber Mains, who also worked in the call room, and Melissa decided to tryout with a modeling agency. The agency chose Melissa, but her mother would not let her work for the agency. Melissa said her mother told she had to get her education first, and then she could make a decision about a career in a job like that. 
12. Cora asked me if we should call the police. At first, we did not want to get involved. However, that night or the night after, Cora telephoned Montgomery County Sheriffs Department and told them that she worked with Melissa and said Melissa had received from life-threatening phone calls. The following day, two detectives came out. one was tall and chunky. The other was shorter. Both officers had dark hair and appeared to be 30-40. 
13. The first question the detectives asked us was, did we know Melissa? We said, Yes. The very next thing they said was "Tell us about the phone calls." I told them what the caller said. I told the detectives that the calls started about a week ahead of the night on which Melissa broke down, and I told them about that Melissa broke down crying one night and that I took the call meant for her. I told the detectives what the caller said; that he threatened to strangle and choke the life out of Melissa and that he threatened to rape her and watch her die. I remember telling them exactly that the caller said he was going lick her cheek and kiss her lips just before she died. I also told them the detectives about the man Melissa was so scared of who had picked her up those three times at League Line Resort. 
14. I also told the detectives that Melissa was dating Larry Swearingen, and that he might know where she is. I knew Melissa was dating Larry because she told me. At first, I thought now way [sic], and used to kid her about dating him. Melissa said that she liked him because he made her feel herself and was easy to talk to. 
15 Melissa had a number of boyfriends during the time I knew her. 
16. We followed the papers and the searches they reported, and thought nothing about her being dumped in the Sam Houston National Forest. That is, we didn't think that was where her body would turn up. I went to five mile point, where the body was eventually found, in between the time Melissa disappeared and before her body tuned up. It was a very popular place to go, even in the winter. In fact, I went to five mile point on December 31, 1998, New Years Eve, with a group of friends. There was another group from, I believe, Huntsville, already partying. We did not see a dead human body at any time. 
The sheriff's department determined that the person who waited for Melissa outside her place of work was Robbie Groves. Robbie Groves turned out to be Larry Swearingen's cousin. When, much later, Lisa Roberts was shown a picture of Robbie Groves, she confirmed he was the person she had seen. The sheriff's department investigated and dismissed Groves as a viable suspect. No one, however, established if Robbie Groves was the same person who called and threatened Melissa on the phone. The mysterious caller, the person who threatened to choke the life out of Melissa Trotter, remained unidentified.

When Swearingen's appellate team sought another appeal based on the State's withholding of evidence, the State resisted. In its reply to the court, the State belittled Lisa Roberts and her affidavit by declaring that she was not as good a friend as some others who worked with Melissa. However, in its effort to belittle Lisa Roberts, the State actually corroborated her story that Melissa was getting harassing phone calls. More significantly, the State revealed that the caller knew where Melissa went to school.
Further, Lisa Roberts is not credible. Ms. Roberts mentions only Nickie Mains and a "Cora" as co-workers at the League Line Marina. It is Amber Maines and Jamie Irvin who were close to Melissa. Although Amber Maines mentions Melissa was "getting telephone herasments [sic] by a man who knew where she worked, her name, where she went to school," Amber states "It happend [sic] a couple of times, then it stopped."
The State was aware that the caller knew where Melissa went to school, and the State was aware that the caller had threatened to choke the life out of her. Given that Melissa disappeared from her school, and given that she was later found strangled, the evidence was clearly exculpatory. The State made no apparent effort to justify its withholding of this exculpatory information from Swearingen's trial and appellate attorneys.

The State was aware it had a moral, ethical, and legal obligation to provide the information to the defense. They chose not to do so. They chose instead to suppress the information and, when caught, dispute that the State's behavior was grounds for an appeal.

Remarkably, in its plea that the court simply ignore the State's transgressions, the State explained it knew Robbie Grove was not the murderer, in part based on Grove's DNA. His DNA not match the DNA from the blood flakes the State had previously dismissed as inconsequential.
The [Grove] file folder also contains a consent to search for blood, and an evidence sheet reflecting that the blood was sent to the Department of Public Safety Laboratory in Austin for DNA analysis and comparison with the blood found under Melissa's fingernails. ... "The DNA profile from the nail scrapings is inconsistent with the victim, the suspect and Robbie Lynn Grove. Ms. Trotter, Mr. Swearingen and Mr. Grove can be excluded as being contributors of this stain." ... 
Mr. Grove was eliminated as a suspect in this case, and Applicant [Swearingen] knows that fact.
The irony would be delicious if a person's life were not at stake.

The Most Innocent Man on Death Row: Histology


Histology comes from the Greek words for tissue and study. Histology is the microscopic study of tissues and the cells that comprise them. A histological examination of the bright red blood flakes found underneath Melissa's fingernails would, for example, show the cell architecture to be largely intact. Most of the cells would still have a well-defined nucleus protected by well-defined cell walls. Such well-defined cells could not have been decomposing for more than a few days.

The State concluded correctly that the bright red blood flakes found beneath Melissa Trotter's fingernails could be no more than several days old. The State, however, concluded incorrectly that the blood cells could have come only from contamination. The State declared it simply impossible that the bright red flakes and their third-party DNA cleared Larry Swearingen of Melissa Trotter's murder.

The State, however, knew or should have known that Melissa Trotter's cells had been decomposing for the same length of time as the third-party blood cells. Both sets of cells, those from Melissa's body and those from the third party's blood, had been decomposing for only a few days, and the State had the microscope slides to prove it.

Unknown to Swearingen's defense and appellate teams, five different samples of Melissa Trotter's tissues had been dehydrated, infused with paraffin as a preservative, stained with dye for enhanced visibility, sliced thin, and pressed between small, rectangular glass plates. This process preserved the tissues indefinitely as microscope slides ready for histologic examination.

The State prepared and stored five such slides, one each for heart, lung, nerve, fat, and vascular tissue. One can only presume that after such diligent effort, someone bothered to examine the slides through a microscope. One can only presume that the person would have then seen in private that which would later become public. Melissa Trotter's cells maintained their basic architecture. Most of them still showed well-developed nuclei. Most of them still showed well-developed walls. Melissa's cells had been decomposing for no more than a few days. Larry Swearingen could not have possibly killed her.

Those slides were suppressed and kept from the defense, just as the stalker evidence had been suppressed and kept from the defense. They were not mentioned in the autopsy report. They were not mentioned by any State witness or expert during trial or during any preliminary hearing. In fact, when the defense expert at trial testified about the absence of slides, neither the State nor any of the State's experts made any effort to correct this unintentionally false testimony.

The existence of the critical histological evidence was discovered by Swearingen's appellate team in January of 2009. Since Swearingen was scheduled to die on the 27th of that month, time was short. The slides were examined by Dr. Lloyd White, mentioned previously, and Dr. Stephen Pustilnik, Chief Medical Examiner of Galveston County. They each issued a report on January 21, just six days before the State was once again scheduled to execute Larry Swearingen.

Of the heart tissue, Dr. White wrote:
Well-stained nuclei are present in nearly all of cardiomyocytes (heart muscle cells). ... The disappearance of nuclear detail within one or two days of cell death is a phenomenon recognized in all basic medical pathology texts. ... The appearance of the cardiomyocytes indicates that death did not occur more than two or three days before recovery of the body from the Sam Houston National Forest.
Of the nerve tissue, Dr. White wrote:
A piece of nerve tissue which is sectioned longitudinally was present in the Harris County Medical Examiner ... the nuclei are plentiful and well preserved ... The subcellular detail ... disappears within a matter of 2 or 3 days after death unless the tissue is fixed and preserved. The appearance ... is that of fresh tissue from a recently deceased person and is nearly identical to that from a live person.
Of the vascular and fat tissue, Dr. White wrote:
Vascular tissue was present in fat and lung tissue on the Harris County Medical Examiner slides. ... The vessel contents include intact red blood cells ... Nuclei are present ... The fat cells are also all intact. ... This tissue is well preserved, which would not be the case if decomposition had progressed much more than 48 hours under conditions in the National Forest. ... The appearance is of tissue of a very recently deceased person.
Of the lung tissue, Dr. White wrote:
Even at low magnification the coloration and the structure of the tissue is that of well preserved tissue that has undergone minimal autolysis. The walls of the alveoli are formed by endothelial cells which are elongated to form a membrane that is only several microns thick. Nonetheless these fragile structures are intact throughout this section of tissue ... 
The architecture and cellular detail seen in the lung tissue would not be discernible in a body left in the environment of the National Forest unless death occurred within two or three days of recovery.
Dr. Pustilnik confirmed Dr. White's analysis.
The review of the microscopic slides demonstrates multiple tissue types in a remarkably good state of preservation. Nuclear and cytoplasmic details of the tissue and other supportive elements such as lung tissue, myocardium, adipose tissue, blood vessels, blood elements, and connective tissue are all in remarkably good shape showing little, if any degradation or nuclear or cytoplasmic detail. ... 
In summary, without prior refrigeration the deceased was killed within reasonable certainty between five and to seven days prior to her discovery. This would put the date of death on or about December 26, 1998. In addition, the absence of mummification and desiccation the ears, as well as to the fingertips is consistent with there not having been prior prolonged refrigeration of the deceased.  
In other words, Larry Swearingen was in jail for at least two weeks before Melissa Trotter was killed. He is therefore factually innocent of her murder.

The Most Innocent Man on Death Row: Stomach Contents


Stomach Contents
Dr. Harrell Gill-King is a board certified forensic anthropologist with over thirty year's experience providing estimates of the postmortem interval for human remains at various stages of decomposition. He submitted an affidavit placing the various types of scientific evidence in perspective. I quote from his affidavit.
Histology is indisputably the most accurate scientific tool for determining post mortem interval in the short term, whereas entomology consistently yields far less reliable results. Indeed, 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. ... 
Autolysis is merely a subset of decomposition. Further, decomposition is inherently less reliable than histology in estimating post mortem interval. Accordingly, when histological estimates of post mortem interval seemingly conflict with the extent to which physical remains have decomposed, accepted science requires the decomposition to be explained by something other than autolysis, if plausible. ... 
Where ... proper histological estimates of post mortem interval have been conducted, histology is the lens through which all other evidence of post mortem interval should be viewed and the method with which other approaches must be reconciled, not vice versa.
Unlike all the others, Dr. Gill-King took note of the stomach contents as an indicator of a recent death.
Even in the absence of the histological evidence, science tells us that any remaining food in the stomach of a deceased individual indicates a relatively short post mortem interval. And from a scientific perspective, stomach contents could never alter an estimate of post mortem interval grounded in histology. ...

The Most Innocent Man on Death Row: Science Undone


Science Undone
Faced with the new scientific claims that Melissa Trotter died soon before her body was discovered, and given that the State had withheld from the defense critical evidence of a stalker who threatened Melissa's life, the Texas Court of Criminal Appeals granted Larry Swearingen a second stay of execution. Once again, the stay came only one day before Swearingen was to be put to the needle.

Once again, Texas Governor Rick Perry declined to intervene. The fact that Larry Ray Swearingen is alive today has nothing to do with the executive clemency stewardship of Rick Perry.

The CCA instructed the original trial judge to hold hearings regarding the new scientific claims and to make a recommendation about Swearingen's case. The trial judge found no basis for granting a new trial. In its majority opinion, the CCA simply adopted the findings of the trial judge without comment. They denied Swearingen's appeal.

CCA Judge Cathy Cochran filed a lengthy concurring opinion in which she attempted to rationalize the Court's irrational decision. She began by suggesting that the validity of the scientific evidence must not be determined by the scientists; rather she insisted the science be dismissed if the Court found the circumstantial evidence more compelling. From Judge Cochran's concurring opinion in Ex Parte Swearingen (2009).
To assess applicant's latest claims, one must weigh their merits relative to all of the other evidence in this case.
Judge Cochran then listed the circumstantial evidence against which the scientific conclusions would be weighed. That list will be discussed momentarily. Judge Cochran concluded by declaring that the scientific conclusions were at odds with the circumstantial evidence and the science should therefore be rejected.
The hallmark of a scientifically sound hypothesis is that it is consistent with, and accounts for, the totality of the known facts. ... 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. 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. They have made no attempt to account for or explain this other evidence or provide an alternate hypothesis. ... 
I therefore join the Court's Order [to deny relief.]
As it turns out, the "incredible wealth of other evidence" used to convict Larry Swearingen is much like the evidence proving the existence of Santa Claus. The evidence is great in quantity but low in quality.

I address below some of circumstantial evidence identified by Judge Cochran as more trustworthy than the scientific findings. In the excerpts, I have replaced each use of the word "applicant" with "Swearingen."

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.
Three witnesses saw Swearingen 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.;
More specifically, each of three eyewitnesses testified that Larry Swearingen was the person they had seen with Melissa Trotter in the Montgomery College library sometime between 11:30 AM and 1:30 PM on December 8. One witness testified that he had seen the Swearingen from the side for approximately 5 seconds. Swearingen was wearing a cowboy hat, a blue coat, blue jean pants, and boots. The witness testified that the person he saw had blond hair. Swearingen has black hair.

Another witness claimed to have been about 15 feet away from Swearingen, and also viewed him only from the side. That witness described Swearingen as wearing western wear and a baseball cap, not a cowboy hat. That witness initially did not identify anyone in the courtroom as the person he saw with Melissa Trotter. After coaching from the District Attorney, he identified Swearingen as the person most likely to be the one he saw.

Each of the eyewitnesses had been biased by an earlier, suggestive photo lineup. In that photo lineup, the police placed Swearingen standing with blonde males of smaller build. Swearingen was wearing jail clothing. Short of a name tag that said "Pick Me", Swearingen could not have been more distinctive.

Though called as a State's witness, Melissa's biology teacher contradicted the three eyewitnesses. The biology teacher testified that Melissa was in a review session he provided for an impending final exam. That review session lasted from 11:30 AM to 1:30 PM. Melissa was present at that session. She therefore could not have been in the library.

Swearingen's cell phone records and a sales receipt also establish that he could not have been in the library between 11:30 AM and 1:30 PM. Calls at 10:17 and 10:42 placed Swearingen at a Sears Automotive Center, where he was having some automotive work done. That call placed him near, but not at the college. A sales receipt time-stamped at 11:39 placed Swearingen at  Cavendars Boot Town located 20 miles south of the college. A call placed at 12 noon placed Swearingen near the intersection of FM 1960 and I-45, 14 miles south of the college.

A cell phone call at 1:15 placed Swearingen near the college where he soon thereafter spoke with Officer Gail Wilson. He was not then in company of Melissa Trotter. He then met Melissa that day only briefly and only after speaking with Officer Wilson, around 1:30 PM. Larry Swearingen left the school alone. At 1:37 PM, Melissa Trotter used her computer to access her email.

The Red Marks on Swearingen's Neck, Cheek, and Back
From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.
Following Swearingen's arrest, law enforcement authorities observed and photographed red marks on Swearingen's neck, cheek, and back;
Larry Swearingen was an electrician. Well before his arrest for the murder of Melissa Trotter, he had suffered chemical exposure after an electrical transformer exploded. This exposure caused him to suffer occasional outbreaks of welts on his back, neck, and face. His wife confirmed the accident and the affliction during her testimony. When shown the photos of the red marks on Swearingen after his arrest, she testified that the marks looked like the welts she had seen on him before.

The Hairs Yanked from Melissa's Head
From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.
Two of Melissa's hairs that were recovered from Swearingen's truck still contained the anagen root, indicating they had been forcibly removed from Melissa's head;
Judge Cochran seriously misstated the evidence. Criminalist Sandra Musialowski testified at trial that the hairs contained microscopic characteristics similar to the victim. However, in a pre-trial report submitted to the District Attorney, Musialowski explained that the "hair does not possess sufficient unique individual microscopic characteristics as to be positively identified as coming from one particular person to the exclusion of all others." Despite Judge Cochran's summary of the "known facts", the hairs found in Swearingen's truck were never established to belong to Melissa Trotter.

At trial, under carefully crafted questioning by the State, Musialowski somehow failed to mention her inability to positively identify the hairs as coming from any particular person. Instead, she suggested that the hairs came from Melissa Trotter.
Q. ... do you know whether or not the hairs in this exhibit are the forcibly removed hairs from the suspect's vehicle? 
A. Yes. 
Q. Belonging to the victim? 
A. Which contain microscopic characteristics similar to the victim. 
Q. Those are the ones forcibly removed? 
A. Yes, there were two of them forcibly removed.
While Musialowski's testimony may have been strictly correct, Musialowski left a compliant jury, a compliant appellate court, and a compliant Judge Cochran with the distinct impression that the hairs came from Melissa Trotter.

The Cigarettes and the Lighter
From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.
Swearingen's wife observed Melissa's cigarettes and lighter in Swearingen's home that evening, and those items were subsequently recovered from Swearingen's home during the investigation;
Judge Cochran seriously misstated the evidence. The evidence was not that the cigarettes and lighter belonged to Melissa. The evidence was that the cigarettes were Marlboro cigarettes, the same brand as smoked by Melissa. The evidence was that the lighter was similar to the one used by Melissa.

DNA testing on the Marlboro cigarettes found at Swearingen's home excluded Melissa as the person who smoked them.

A criminalist for the Department of Public Safety testified that the plastic wrapper from the Marlboro package found in the Swearingen's home did not match the plastic wrapper from the Marlboro package found in Melissa's car.

It seems, however, that Terry Swearingen, Larry's wife, may have been a secret smoker. Though she testified that she didn't smoke and had never smoked, she conceded that she had bummed cigarettes from her relatives. In fact, she testified that she had bummed Marlboro cigarettes from her relatives. Evidence collected by the Montgomery County Sheriff's personnel showed numerous Marlboro cigarettes and butts collected from the yard and trash of Swearingen's home.

The Pantyhose
From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.
The ligature used to asphyxiate Melissa was a single leg torn from a pair of pantyhose belonging to Swearingen's wife, the remainder of which was recovered from Swearingen's home during the investigation;
Police searched Swearingen's home twice before the pantyhose were discovered. On December 15, five or six deputies, among them two crime scene investigators, searched Swearingen's mobile home. They searched every room, looked through boxes of clothes, and looked through the trash. Three days later, officers conducted a search that was just as thorough. In neither search did the investigators find a ripped pair of pantyhose.

The pantyhose were discovered a week later by Swearingen's landlord. The landlord was cleaning the mobile home in preparation for the next tenant. The landlord either found the pantyhose in the trash or placed them in the trash after finding them in a box of clothes.

Recall that the police investigation was sufficiently thorough that they found cigarettes and cigarette butts in the yard and trash. They did not, however, find the pantyhose in the trash or elsewhere.

Assuming either of the two police search teams performed a thorough search, the pantyhose were not in Swearingen's home when they searched it. Someone other than Larry Swearingen must have been placed them in or near his mobile home.

The Luminol Test
From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.
A Luminal test on the seats of Swearingen'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 Swearingen's home;
Judge Cochran meant Luminol with an "o", not Luminal with an "a". Luminal is the trade name of a drug used to control epilepsy. Luminol is a chemical that glows a striking blue when mixed with certain substances. Classically, that certain substance is the iron in blood, but other substances will also work. Armor All is not one of those other substances.

When investigators tested for blood, they found none. Judge Cochran's suggestion is that blood must have been there because Swearingen recently cleaned or treated the seats of his truck with Armor All. The fact is, no blood was found.

The finding of Armor All wipes in the trash of Swearingen's home points as much to Swearingen's innocence as it does his guilt. Though the investigators searched with sufficient diligence to find empty Armor All containers in the trash, along with cigarettes and cigarette butts not belonging to Melissa, they did not find the pantyhose. The pantyhose turned up only after their search, only after Swearingen had been in jail for more than a week.

The Torn Papers
From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.
On December 17, 1998, two neighbors of Swearingen'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;
While putting out his garbage, John Parsley found multiple torn pieces of paper along the ditch area in front of his home. His normal trash days were Monday and Thursday. Before the discovery of the torn paper, there had been two trash pickups. Parsley observed no torn papers while putting out his trash on either the 10th or the 14th. The papers appeared only after Swearingen had been in jail for a week, not long before the pantyhose remnant was mysteriously found in Swearingen's apartment.

The Chicken McNuggets
From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.
When Swearingen's good friend, Elyese Ripley, visited him in jail on January 9, 1999, Swearingen 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; 
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 Swearingen and the Chicken McNuggets she and Swearingen had apparently purchased at the nearby McDonald's on December 8, 1998;
The State had no direct evidence that either Swearingen or Trotter was at the nearby Texaco-McDonald's that day. The State simply presumed Swearingen and Trotter had been there since Swearingen asked a friend to claim she had been there with him. The State presumed also that Melissa Trotter must have consumed Chicken McNuggets, since some chicken had been found in her stomach. Each presumption allegedly proved the other. This is an illogic known as circular logic.

The Two Most Inculpatory Pieces of Evidence
From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.
Two of the most inculpatory pieces of evidence proving that Swearingen 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. (2) Cell phone records showing Swearingen 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 Swearingen's trailer house. This is directly on a logical path to the Sam Houston National Forest where Melissa's body was found three weeks later.
Judge Cochran continued to cling to the absurd claim that stomach contents will be perfectly preserved in a corpse for three weeks. She pointed to Dr. Carter's trial testimony to support the absurd claim, though Judge Cochran knew that Dr. Joye Carter had recanted her own trial testimony. When Dr. Carter later submitted her affidavit agreeing that Larry Swearingen must have been in jail when Melissa was killed, Dr. Carter was well aware of Melissa's stomach contents.

In her recanting affidavit, Dr. Carter also acknowledged that Melissa's body would have lost most of its mass if it had been in the forest for three weeks. Dr. Larkin, in his affidavit, explained Melissa's body would have lost up to 90% of its mass had it been in the forest for 25 days. In other words, her body would have weighed slightly more than ten pounds. To believe that such a desiccated corpse would perfectly preserve tater tots and Chicken McNuggets is folly.

Judge Cochran's second most inculpatory piece of evidence was that a cell phone tower near FM 1097 and I-45 picked up a call from Swearingen at 3:03 PM. She added that the tower was well north of Swearingen's house and directly on a logical path to the Sam Houston National Forest.

Judge Cochran once again misstates the evidence, this time seriously so. The intersection of FM 1097 and I-45 is not well north of Swearingen's house. It is slightly south. More significantly, the tower is so close to Swearingen's home that it is the one most likely to pick up any cell phone call Swearingen might place from his home.

The call at 3:03 PM did not prove Swearingen was transporting a body to the Sam Houston National Forest. The call merely showed that Swearingen was near, perhaps even inside, his own home when he made the call.

A Third and Timely Stay of Execution
To deny relief to Larry Swearingen, the Texas Court of Criminal Appeals argued in circles, misstated the inculpatory evidence, and ignored exculpatory evidence. Most disturbingly, the CCA simply dismissed the affidavits and testimony of seven qualified doctors who stated with scientific certainty that Melissa Trotter was killed well after the date Larry Swearingen was jailed.

Larry Swearingen was given a third date with the needle, this one on August 18, 2011. Rick Perry announced his run for the Republican nomination for president on August 13.

Swearingen's execution could have posed Governor Perry a nightmarish political conundrum. If Governor Perry allowed Swearingen to be executed, he would have had to answer for allowing the execution of someone so clearly innocent as Swearingen. If, on the other hand, Governor Perry had in any way intervened with the execution, he would have been asked why he did not previously intervene when Swearingen twice came within a day of execution.

Fortunately for Rick Perry, the Texas Court of Criminal Appeals stayed Swearingen's execution for a third time. The Court did so on July 28, just 16 days before Perry threw his hat into the presidential election ring. The Court claimed to have been provided "a new and separate allegation of a due process violation." The Court did not specify what that allegation might be.