Monday, April 28, 2014

Framing The Guilty, Framing the Innocent


The Framing of Larry Swearingen, Part 2 
The Framing of Preston Hughes, Part 1
The Framing of Preston Hughes, Part 2 
The Framing of Larry Swearingen, Part 3 
The Framing of Larry Swearingen, Part 4 
The Extent of Framing the Innocent in Texas 

Later in what will be a long-running series:
The Framing of Gilbert Alejandro (coming)
The Framing of George Rodriguez (coming)
The Framing of Derrick Johnson (coming)
The Framing of David Shawn Pope (coming)
The Framing of Arthur Merle Mumphrey (coming)
The Framing of Cameron Todd Willingham (coming)
The Framing of Frances Elaine Newton (coming)
The Framing of James Lee Woodward (coming)
The Framing of Entre Nax Karange (coming)
The Framing of Steven Phillips (coming)
The Framing of Max Soffar (coming)

The Framing of Cesar Fierro

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

On 27 February 1979, border patrol agents discovered the body of taxi driver Nicholas Castanon in an El Paso park. He had been shot in the back of the head.

Not long after the shooting, eyewitnesses in Juarez, Mexico identified two men exiting what turned out to be Castanon's cab. Based in part on descriptions provided by the eyewitnesses, the El Paso police soon arrested two men, neither of whom were Cesar Fierro. The El Paso district attorney declined to prosecute, and the case went cold.

Late in July, under circumstances that remain murky to this day, 16-year-old Geraldo Olague fingered Cesar Fierro as the person who shot and killed Nicholas Castanon. Olague explained to the Juarez police that he and Fierro hailed a cab with the intention of robbing the driver. Fierro surprised Olague when he shot and killed Castanon. The Juarez police promptly turned Olague over to the El Paso police.

On 1 August, at 3 in the morning, eight heavily-armed Juarez police officers broke into the home of Cesar Fierro's parents. They took the parents to the Juarez jail. There they threatened Fierro's stepfather with an electric cattle prod placed close to his genitals. They beat Fierro's mother.

A bit later that morning, El Paso police detective Al Medrano received a phone call from Juarez police commander Jorge Palacios. Palacios invited Medrano to breakfast in Juarez. During their meeting, Palacios informed Medrano that the Juarez police had located Cesar Fierro. Fierro, he explained, was already in the custody of the El Paso police, being held for a parole violation in an unrelated case.

Medrano quickly retrieved Fierro and began interrogating him. Fierro acknowledged that he knew Olague and conceded that they had committed robberies together. Fierro, however, steadfastly denied that he was in any way involved with the murder of Nicholas Castanon.

Medrano called Palacios and gave the phone to Fierro. Palacios informed Fierro that his parents would be tortured if he did not confess. Fierro hung up the phone and confessed to the murder of Nicholas Castanon.

At his trial for capital murder, the case against Cesar Fierro consisted of his confession and the testimony of Geraldo Olague. Medrano testified that the confession was voluntary. Olague's testimony was a jumble. He testified that in the hours before the murder, he committed his first-ever burglary. The burglary consisted of breaking into a car and stealing a CB radio, which he later pawned. He identified one of the jurors as the pawnbroker to whom he had sold the radio.

Olague testified that Fierro had forced him to commit approximately 10 burglaries in the six months prior to the CB radio theft, despite his own testimony to the contrary. When asked how many burglaries he had committed, he estimated 40.

To explain away the obvious inconsistencies between his trial testimony and his police report, Olague explained that he had psychological problems and that he was impaired even while testifying.

The defense called Fierro's parents who testified to the brutal treatment they had suffered at the hands of the Juarez police. The defense called also Fierro's landlord who testified that Fierro was at home on the night of the murder. The defense witnesses were of no consequence, however, in the face of Fierro's confession.

On 12 February 1980, the jury found Cesar Fierro guilty of capital murder and sentenced him to death.

After Fierro had been on death row for 14 years, his appellate attorneys interviewed Al Medrano under conditions that turned out to be favorable to Fierro. Medrano was dying of cirrhosis of the liver, and he provided what was effectively a dying declaration. He signed an affidavit admitting that Fierro's confession had been coerced.

Fierro's attorney took the affidavit to the district attorney who had prosecuted Fierro. The DA signed an affidavit stating that he would not have prosecuted Fierro if he had known the confession had been coerced.

In addition to the two affidavits, the Juarez police officer who had led the pre-dawn raid on home of Fierro's parents agreed to testify.

That evidence in hand, Fierro's attorneys convinced a lower court to grant Fierro a new trial. The Texas Court of Criminal Appeals, however, overruled the lower court decision. Each of the nine TCCA judges agreed that the confessions had been coerced. Each of the nine agreed also that Detective Medrano had provided perjured testimony during Fierro's legal proceedings. Only four of the judges, however, voted to grant Fierro a new trial. The other five ruled the coerced confession to be nothing more than a "harmless error". They ruled that the jury would have convicted Fierro on Olague's testimony alone.

During his time on death row, Fierro has been scheduled for execution 14 different times. On 6 of those occasions he came within days of being executed. His mother died. His brother died. His wife divorced him. His daughter stopped visiting him.

On 15 May 1986, Fierro contacted the prison's psychiatric department for the first time. He explained that he was hearing voices and feared he might harm himself.

After March of 1999, Fierro's communications with his attorneys became increasingly irrational. He accused them of conspiring against him. He refused to meet with them. He returned their letters unopened. He refused to shower. He refused to leave his cell for any reason and had to be forcibly extracted. He spread feces on the wall.

Fierro now spends his days in the Beauford H. Jester IV Psychiatric Unit. It is unlikely he will ever be executed.

He will, however, always have been framed by the State and People of Texas.

Sunday, April 27, 2014

The Framing of Larry Swearingen, Part 1

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

On 8 December 1998, Melissa Trotter disappeared from Montgomery College, a community college 30 miles north of Houston. Twenty-four days later, on 2 January 1998, several hunters discovered her body in a heavily wooded area of Sam Houston National Park. She had been strangled with one leg of a pair of pantyhose. The ligature was still knotted around her neck.

On the day Melissa Trotter disappeared, Larry Swearingen was scheduled to lunch with her. Swearingen quickly became the primary suspect. The police arrested him for outstanding traffic warrants on 11 December, just 3 days after Melissa went missing, 22 days before her body was discovered.

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 gossamer thin. I summarize the State's case below.

The Case Against Larry Swearingen
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, three witnesses saw Melissa sitting with 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 testified 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. Terry Swearingen testified that 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 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 feet of the body before seeing it. Larry Swearingen was familiar with the area. 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.

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 testified that he found the remainder of the pantyhose in Swearingen's mobile home as he was cleaning the trailer for another tenant. The discovery occurred after the body had been found. Terry Swearingen, Larry's wife, testified 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 was discovered, 25 days after she had disappeared, and 22 days after Larry Swearingen had been arrested. Dr. Carter 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 testified that death was caused by asphyxia due to ligature strangulation. There was no evidence of penetration of the vagina, anus, or mouth. 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.

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 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 found no blood. The investigators concluded that the truck had been wiped down with with Armor All. Two empty containers of Armor All wipes were 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 narrative was of somebody name Ronnie who took Melissa Trotter to the forest and strangled her.

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 Dr. Carter's testimony that Melissa was injured on the left side of her face, that Melissa's neck was cut, that one of Melissa's shoes had fallen off, that Melissa was laid on her back among the bushes, and that Melissa was wearing red underwear.

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.

The most intriguing bit of exculpatory evidence was, in my opinion, the discovery of fresh blood under one of Melissa Trotter's fingernails. DNA testing of that blood excluded Larry Swearingen as the contributor.

Pre-emptive 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.

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.

The defense refuted, effectively in my opinion, the lesser pieces of circumstantial evidence that the State amassed against Swearingen. I detail those refutations in my lengthy series The Most Innocent Man on Death Row, and I will not repeat them here.

The most damning pieces of evidence against Swearingen were:
1. the discovery of the pantyhose at his home, 
2. the discovery of Melissa Trotter's paperwork near his parents' home, and 
3. Dr. Joye Carter's testimony that Melissa Trotter died on the day Trotter was last seen alive with Swearingen.
When I continue with The Framing of Larry Swearingen, I will explain how each of those three pieces of evidence was manufactured. I will explain why Larry Swearingen is absolutely innocent. I will explain how he was framed for the murder of Melissa Trotter.

Before doing that, I will explain how other innocent people have been framed by the State and People of Texas.

Stay tuned.

Saturday, April 26, 2014

Framing the Guilty, Framing the Innocent

There is an all-too-common practice in our justice system known as Framing the Guilty. A police officer (or crime lab supervisor or medical examiner or district attorney) is convinced of a suspect's guilt but fears the bastard will walk free. The police officer (or other administrator of justice) will therefore bury exculpatory evidence, manufacture or plant inculpatory evidence, coerce a false confession, or provide favorable treatment to a third party in exchange for false testimony.

Since the dirtbag being framed is guilty, no harm is done.

A greater harm would be to allow the sleaze ball to walk free so that he could rob or rape or kill again.

It's okay because everyone does it.

No need to lose any sleep over it.


Sometimes, however, the police arrest the wrong person. They are loath to admit it, but sometimes they do arrest the wrong person. Sometimes, district attorneys convict innocent defendants. They never admit it, but sometimes district attorneys do convict innocent defendants. In those cases of actual innocence, Framing the Guilty becomes Framing the Innocent.

The classic movie frame up is more fiction than reality. A bad guy wants to deflect suspicion away from himself. A vengeful partner wants to extract revenge. A mob boss wants to eliminate competition. Those evil private citizens therefore manufacture a case against an unwitting foe. The police and district attorney fall for it. An innocent man is convicted through no wrong-doing whatsoever on the part of the State.

I repeat, the classic frame up is more fiction than reality. In the real world, nearly all the framing is done by the State. In those frames, the administrators of our justice system are the bad guys, the vengeful partners, the mob bosses. They serve at our pleasure. We must therefore bear our share of the blame.

I now take another break from my blogging sabbatical to write this series about the State of Texas framing its citizens for capital murder. I do so because Larry Swearingen, The Most Innocent Man on Death Row, has a critical hearing on 15 May. Larry Swearingen is one of those innocent people who has been framed for a crime he did not commit. The State and People of Texas still hope to execute him as soon as they can.

I will intersperse this disturbing series with posts about the framing of Larry Swearingen. I will also discuss other instances of Framing the Innocent.

One of those cases will be that of Preston Hughes III, the most thoroughly framed person ever executed in this country. It was my failed effort to save Hughes that led to my sudden and unannounced sabbatical from blogging. Before too long, I will publish my book revealing all of what I learned both before and after the execution. Here, in this series, I will give but a brief overview.

Another case in the series will be that of Cesar Fierro. Even the Texas Court of Criminal Appeals agreed that Fierro confessed to stop the police from physically torturing his parents. The TCCA agreed also that the police perjured themselves at his trial. The TCCA, however, ruled that the framing of Cesar Fierro was a harmless error, and they refused to grant a new trial. Cesar Fierro will not be executed, however, since he has gone undeniably insane while incarcerated on death row.

Another case in this series will be that of Robert Otis Coulson. The U.S. Court of Appeals for the Fifth Circuit found that the police had, in that case, planted an envelope on a desk. The court found also that the district attorney improperly used the envelope as evidence against Coulson. "We agree," the judges wrote in their opinion, "that the evidence regarding the location of the envelope was false. We also agree that this knowledge may be imputed from the police to the prosecution." The 5th Circuit then ruled that the framing of Coulson was a harmless error, and they refused to grant a new trial. Robert Otis Coulson was executed by the State and People of Texas on 25 June 2002.

Yet another case in this series will be that of Derrick Leon Jackson. Jackson was convicted of capital murder based on the work of the notorious HPD crime lab in general and the work of the notorious James Bolding in particular. The independent investigators hired to review the HPD crime lab saved their most scathing words for James Bolding. "We have identified three cases in which Mr. Bolding was involved in the wholly inappropriate and unethical alteration of bench notes reflecting the serology results obtained by either himself or another Crime Lab serologist. Each of these cases reflects a disturbing lack of integrity on the part of Mr. Bolding. … James R. Bolding appears to have committed scientific fraud and perjury." The investigators identified the Jackson case as one that needed to be reinvestigated. Derrick Leon Jackson was nonetheless executed by the State and People of Texas on July 20, 2010.

I write this series to inform the public, and the judges who serve the public, that the State and People of Texas have framed innocent defendants all too frequently, and that Larry Swearingen is one of those innocent defendants who has been framed.

For a status of the series and for ease of navigation, see the Table of Contents.