Wednesday, May 14, 2014

The Extent of Framing the Innocent in Texas

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

In this post, I will calculate how many innocent people have been framed and executed by the State and People of Texas. It might be interesting. Stay tuned.

I'll begin not in Texas, but Virginia. I'll begin not with a prisoner, but with a serologist. Mary Jane Burton worked for Virginia's Department of Forensic Science from 1973 to 1987. (She died in 1999.) As a serologist, she determined blood type and other identifying information from biological samples. DNA identification was never a part of her job. Even by the end of her career, DNA technology was still in its infancy.

Burton had a habit of taping cotton swab heads and textile clippings to the worksheets in her case notebooks. She used the swabs and clippings while testifying to show the jury the exact piece of evidence she tested. While Virginia routinely destroyed biological evidence from old cases, Mary Burton's swabs and clippings remained tucked away well preserved in her notebooks.

Advancements in DNA technology, coupled with Virginia's routine destruction of its DNA evidence, eventually led to the discovery of Mary Burton's treasure trove of well-preserved, well-documented DNA samples. The first person to be exonerated by Burton's diligence was Marvin Anderson. He had spent 15 years in prison for a rape he did not commit. The next to be freed was Julius Earl Ruffin. He had spent 21 years behind bars for a rape he did not commit. Then came Arthur Lee Whitfield (22 years), Phillip Thurman (20 years), and Willie Davidson (12 years).

After a long and inexcusable delay, the five exonerations led to a thorough review of all the DNA evidence that Burton had so carefully preserved. The results of that review were finally published just recently by the Urban Institute, working under contract to the U.S. Department of Justice. Their thrilling report, Post Conviction DNA Testing and Wrongful Conviction, has not been as widely read as The Hunger Games or Fifty Shades of Grey, so I'll summarize the results for you, right here and now.
A total of 715 convictions were reviewed based on Burton's samples and other case evidence. (293 homicides, 375 sexual assaults, and 47 sexual assault homicides)
For 465 of the convictions, Burton's samples provided no additional insight into actual guilt or innocence. 
For 194 of the convictions, Burton's samples substantiated the guilty verdict. (For my analysis, these are the confirmed guilty.)
In 18 of the convictions, Burton's data provided exculpatory evidence, but the evidence was insufficient to support exoneration. 
In 38 of the convictions. Burton's samples provided exculpatory evidence that supported exoneration. (For my analysis, these are the confirmed innocent.)
Using the Urban Institute results, it is now easy to calculate a rate of wrongful conviction. I'll ignore the cases in which the review provided no additional insight into actual guilt or innocence. I'll also ignore the convictions that suggested innocence but did not firmly establish it. That leaves me with 236 convictions in which the Urban Institute confirmed guilt (194 cases) or discovered innocence (38 cases). The rate of wrongful conviction is 38 cases of wrongful conviction divided by 236 cases of confirmed guilt or innocence. That equals 0.161. That is 16.1%.

Holy Cow!

Even I'm shocked, at least I was when I first performed this calculation. I had previously argued that our rate of wrongful conviction is around 11%. (See for example On the Rate of Wrongful Conviction: Chapter 10.6 and On the Rate of Wrongful Conviction: Chapter 11.1) Most everyone else who attempts to determine the rate of wrongful conviction concludes that the number is somewhere between zero and 3%. A few venture as high as 5%. My 11% number stuck out like a sore thumb, and now I discover that I may have been too kind to our justice system.

Holy Cow!

I hereby admit that I started with the Virginia DNA database because I wanted to soften you up. To further prepare you for the number of innocent people framed and executed by Texas, I'm now going to calculate a rate of wrongful conviction for capital murder for all states other than Texas. Whatever you may think of our capital punishment system, it provides a handy basis for estimating a wrongful conviction rate.

Every capital murder conviction in this country is reviewed over and over again for a decade, or two, or three. Prosecutors and appellate attorneys and innocence projects and lay citizens attempt to persuade appellate judges and the public that the convicted party is truly guilty or actually innocent. Eventually, some of the convictions are irrevocably resolved by either an execution or an exoneration. It is the irrevocably resolved cases that provide a solid basis for estimating a rate of wrongful conviction.

Here are the inputs for my calculation:
According to the Death Penalty Information Center, there have been 1001 executions in all states other than Texas since 1976 when the Supreme Court lifted its ban on the death penalty. 
According to the Death Penalty Information Center, there have been 125 exonerations of death row prisoners in all states other than Texas since 1976 when the Supreme Court lifted its ban on the death penalty.
I'll be quick. As a country, excluding Texas, we have reviewed 1126 death sentences carefully enough to make an irrevocable decision about actual guilt or innocence. In 1001 of those cases, we confirmed the jury verdict and we executed the prisoner. In 125 of those cases, we determined that the jury got it wrong and we exonerated the prisoner. The rate of wrongful conviction is therefore equal to 125 cases of wrongful conviction divided by 1126 convictions irrevocably resolved. That equals 0.111. That equals 11.1%.

That's bad. That's really, really bad. It is substantially lower than the 16% rate calculated from the Urban Institute report, but it is still really bad. I believe I know why it is lower. The data from the Urban Institute are more heavily populated with cases of sexual assault. My previous work in this area has convinced me that juries wrongfully convict in rape cases substantially more frequently than they do in murder cases. (As an aside, juries wrongfully convict most frequently in child molestation cases, and least frequently in drug cases.) Whatever the reason for the disparity, I'll use the 11.1% number as I continue to calculate how many innocent Texans have been framed and executed.

I'll now calculate the exoneration rate for Texas, again using data from the Death Penalty Information Center. Texas has executed 515 prisoners since 1976. On the other hand, Texas has exonerated only 12 of its death row inmates.

That's right. You did the math correctly in your head. Even though Texas has performed a third of all the executions nationwide, it has exonerated less than 9% of those saved from the needle. By comparison to the rest of the country, Texas is execution happy and exoneration resistant.

Texans and pro-death-penalty advocates may claim that the numbers only prove that Texas is better than the rest of the country at getting it right, that Texas makes fewer errors, that Texas has a lower rate of wrongful conviction. I suspect that's not the case. I'm going to instead assume the following:
1. The jury members in Texas are neither brighter nor dimmer than their fellow jury members across the country. They are just people suddenly asked to make sense out of a complicated, obfuscated, tragic mess. (I'm fairly confident that this assumption is reasonable.) 
2. The police, prosecutors, medical examiners, and forensic specialists in Texas are no better or worse at framing defendants. They are no better or worse with respect to fabricating inculpatory evidence or withholding exculpatory evidence. (I'm less confident with this assumption.) 
3. The Texas Court of Criminal Appeals is the agency primarily responsible for the low rate of exonerations in Texas. They allow cases to stand even when based on a confession extracted by a viable threat of torture. They forgive police for planting evidence and fabricating dying declarations, prosecutors for withholding evidence, medical examiners for prosecution friendly times-of-death, and serologists for cheap magic tricks in lieu of science. (I'm really confident of this assumption.)
Using those three assumptions and the 11.1% wrongful conviction rate for the rest of the country, I can now calculate how many Texas death row inmates should have been exonerated rather than executed. Out of 527 death penalty cases irrevocably resolved in Texas, 11.1% of them,  58 of them, should have been exonerations. Only 12 of them were exonerated. 46 of them were instead executed when they should have been exonerated.

To be clear, to be absolutely clear, I am indeed suggesting that Texas may have executed 46 innocent people. I can't identify all of them by name, but I can identify many of them. A few of the people likely innocent but certainly executed by the State and People of Texas are:
Preston Hughes
Cameron Todd Willingham 
Frances Elaine Newton
Johnny Frank Garrett

Lamont Reese
David Wayne Spence
Kia Levoy Johnson
Robert Nelson Drew
Carlos DeLuna
Richard Wayne Jones
Ruben Cantu
Davis Losada
Jesse Romero
David Wayne Stoker
Now for the final part of my post: the determination of how many of the innocent people executed by Texas were framed. I'll concede that I cannot make that determination without identifying and researching each case of wrongful execution in Texas. I will, however, make this observation. No one is ever accidentally, unintentionally, inadvertently convicted of a capital murder he did not commit. There is always someone working for the State to help things along.

Tuesday, May 13, 2014

The Framing of Larry Swearingen, Part 4

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

For a thorough overview of the case against Larry Swearingen, see The Framing of Larry Swearingen, Part 1. To understand how Larry Swearingen was framed with planted evidence, see The Framing of Larry Swearingen, Part 2. To understand how Larry Swearingen was framed by the prosecution-friendly, medically unsound testimony of the Dr. Joye Carter, see The Framing of Larry Swearingen, Part 3. In this post, I will discuss who might have killed Melissa Trotter.

When Melissa Trotter was murdered, there was a serial ligature killer working the area. The police would not manage to capture him until three years after Larry Swearingen was convicted of the ligature strangulation of Melissa Trotter. Had they caught the serial killer sooner, Melissa Trotter might be alive today.

The serial killer, the one who used ligatures to murder his victims, is Anthony Allen Shore. Shore currently resides not too far from Larry Swearingen. They are both in the Allan B. Polunsky Unit of the Texas Department of Criminal Justice. They are both on death row.

The Polunsky Unit is located in West Livingston, Texas, just to the west of the Sam Houston National Forest where the body of Melissa Trotter was discovered on 2 January 1999.  The State and People of Texas believe that Larry Swearingen strangled Trotter with one leg from a pair of pantyhose, then dumped her body in a remote area. So convinced are they that they hope to execute him as soon as possible.

Given the rarity of ligature killings, I suggest it is more far more likely that Anthony Allen Shore strangled Melissa Trotter with one leg from a pair of pantyhose, then dumped her body in a remote area, as he was apt to do. I suggest further that DNA testing might prove that Anthony Allen Shore or some other individual murdered Melissa Trotter. The State of Texas doesn't care for the idea of any DNA testing.

Not a bit.

I became aware of Anthony Allen Shore only after my failed effort to save Preston Hughes from being wrongfully executed. Since the evidence showed that Hughes did not murder 15-year-old Shandra Charles and 3-year-old Marcell Taylor, I wanted to know who might have. I was surprised to learn that a serial killer of young women was working the area at the time of the murders, that the serial killer lived less than two miles from the crime scene, and that the serial killer confessed to killing his first victim nearby, two years to the day before the murders of Charles and Taylor.

That serial killer was Anthony Allen Shore. I researched him and wrote extensively about him in this blog. I suspect that he has not yet confessed to all of his murders. I conclude nonetheless that he was not the person who killed Charles and Taylor. They were stabbed, each in the same precise manner; Shore strangled, usually with a ligature. The murders of Charles and Taylor were cold, deliberate, and professional. Shore murder's were uncontrolled, poorly planned, and clumsy. The murders of Charles and Taylor were probably related to drugs. Shore's murders were related to something more primitive.

As I investigated Shore's murders, it occurred to me that he may have killed Melissa Trotter. I wrote of that possibility in my series "Who Murdered Melissa Trotter?", specifically the final post of that series Who Murdered Melissa Trotter? Anthony Allen Shore. I'll attempt to be brief as I summarize that post here. I'll probably fail, at least with respect to being brief.

If Melissa Trotter was murdered by Anthony Allen Shore, she was the victim of a fatally unfortunate string of coincidences. Such is the case of almost all those who fall prey to predatory serial killers. The victim's physical characteristics match those sought by the serial killer. The victim's behavior, while perfectly innocent, makes her vulnerable. Finally, and most coincidentally, the victim just happens to be in a specific place at a specific time when the serial killer is also there, at that specific time, at that specific place, searching for prey.

Shore preyed on young, thin, small women. By his own admission, he was particularly drawn to young women with long flowing hair, dark eyes, a nice smile, and an athletic build. Consider the image below:

From left to right, top to bottom, Shore's confessed victims plus Melissa Trotter.
 Selma Janske (pseudonym)
 Melissa Trotter (possible victim)

At 19 years old, Melissa Trotter would have been neither the oldest nor the youngest of Shore's victims. At 5 feet 3 inches tall, she would have been neither the tallest nor the shortest of his victims. At 108 pounds, she would have been neither the heaviest nor the lightest. Melissa Trotter, tragically, seems to have been the very sort of person that Anthony Shore preyed on.

Trotter's lifestyle also increased the odds that Shore would be drawn to her. Shore believed, with some justification, that women would be drawn to him. Before killing his victims, he attempted to establish a consensual sexual relationship. When quickly or eventually rejected, he used a ligature to forever silence the young woman (or young girl) who shamed him.

Melissa Trotter was sexually active. Based on police investigations soon after her disappearance, she had sexual relationships with at least 18 men. I find no fault in that. I do note, however, that the behavior made her more susceptible to the superficial charms of Anthony Allen Shore. Regarding Shore's charm, I offer several quotes from Strangler, Corey Mitchell's book about Shore:
From Gina Lynn Worley, Shore's first wife: "I was checking the mail in my mailbox and he ran down the stairs all flustered and introduced himself, saying, 'Hi! I'm Tony Shore! I'm the nicest guy you'll ever meet. I thought he was charming. He is a charming guy. He was really a nice, open genuine person." 
From the waif-like Amy Lynch, Shore's second wife, fourteen years his younger: "It was a small ceremony. I was young and naive, and he was really charming. ... He's creative. He's smart. he's talented. He's brilliant and he's charming." 
From the waif-like Shore Pauline Cody, Shore's third wife, also fourteen years his younger. "He swept me off my feet, ... he was very charming. There was a lot about him that seemed attractive. he was really smart. He was very articulate and musically inclined and just opened up my world to a lot of new things."
Shore had already charmed his way into the life of women even younger than Melissa Trotter. Second wife Amy Lynch moved in with Shore when she was still in high school. A chance encounter between Trotter and Shore could have led to a dating relationship that turned deadly.

Melissa Trotter disappeared from Montgomery College. The school is located in The Woodlands, just off the I-45 interstate running north out of Houston. At the time of Trotter's disappearance, Shore was also living just off the I-45, on the 700 block of East 18th Street north of downtown Houston. The distance between Melissa's school and Shore's house was 31 miles.

Shore picked up his last confessed victim, Dana Sanchez, from a convenience store near his home. He drove her north on I-45, towards. Somewhere along the way he strangled her with a segment of nylon rope and dumped her body in a field half-way between his house and Montgomery College. He then continued to drive north, towards and perhaps past Montgomery College, until he found another field in which to dispose of Sanchez' clothes and personal effects.

Not only did Shore dispose of Sanchez and her effects near where Melissa Trotter disappeared, the two bodies were laid out, possibly posed, in similar fashion. So similar is the body positioning that I have decided to show the two corpses as they were discovered. On one hand, I am reluctant to present them. They are gruesome, and there is no way that they cannot be painful to friends and family. On the other hand, a man's life is at stake.

That is Dana Sanchez' body on the left, Melissa Trotter's body on the right. I previously used this composite image in my post on Dana Sanchez to reinforce the argument that Trotter's body had not long been in the forest. Sanchez' body had been exposed for only 8 days. Trotter's body clearly had not been exposed for 25, despite Joye Carter's ever-wavering opinion to the contrary.

I reuse the image here to make a point that only recently occurred to me. Shore not only confessed to disposing of a body near Melissa Trotter's last known location, the two bodies ended up in nearly identical positions. Each was on her back. Each had her right arm raised above her head. Each had her left arm by her side. Each had a ligature about her neck.

Not only does the composite photo provide powerful evidence of Swearingen's innocence, it might provide evidence of Shore's guilt.

A month before her disappearance, Melissa Trotter was trying to extract herself from a horrifying relationship. Whomever she was seeing had begun to stalk her, frighten her, and threaten her life. The police had been told about the stalker who threatened Melissa's life, but they kept that information from Swearingen's defense team. The Texas Court of Criminal Appeals declared that withholding to be nothing more than a harmless error.

I include below portions of a post-conviction affidavit that I presented elsewhere 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.
"I'll strangle you: I'll choke the life out of you. I'm going to fuck you while you die." That is exactly what Anthony Shore (nearly) did to Amy Lynch about the time of Melissa Trotter's disappearance. Amy Lynch left Anthony Shore because he nearly strangled her to death during sex.

Later in Lisa Robert's affidavit:
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 a 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.
The police decided that the scary guy who picked Melissa up from work was Robbie Grove, who is Larry Swearingen's cousin. When, much later, Lisa Roberts was shown a picture of Robbie Grove, she identified him as the scary person who picked up Melissa from work that night. It was dark outside, but she said the scary guy was standing in the light. The police dismissed Robbie Grove as a suspect. The DNA on the blood flakes found under Melissa's fingernail did not match Grove's DNA.

Perhaps it was not Robbie Grove that Lisa Roberts saw picking Melissa up that night. Perhaps it was instead someone who looked quite a bit like Robbie Grove. Someone, for example, like Anthony Shore.

That's Anthony Shore on the left, around the time of his arrest. That would be five years after Lisa Roberts saw the scary guy who waited for Melissa outside her place of work. That's Robbie Grove on the right. The picture is from his MySpace page. You need to mentally remove a decade or so from his image for a temporally-unbiased, head-to-head comparison with Anthony Shore.

It seems to me that Anthony Shore and Robbie Grove could easily be confused in the dark. Lisa Roberts may have seen Anthony Shore. I can understand why, when shown a picture of Robbie Grove years later she thought he could have been the man she saw that night.

One of the mysteries surrounding the murder of Melissa Trotter is her location between the time of her disappearance on 8 December 1999 and the dumping of her body within days of its discovery. Someone had held her captive for two to three weeks. During that time, she had been well fed. Beyond the ligature around her neck, there was no evidence she had been bound. Her body showed no obvious sign of injury other than those associated with the strangulation.

Whoever murdered her possessed her for two to three weeks, and Shore liked to possess his victims. From his confession to the rape of Selma Janske:
Hell, I did this, at this time I, it's a sexual union, had something to do with it. The more I'm thinking in retrospect, that it's having to do with possession of a person. Making them ... do ... things.
Anthony Shore had engaged in several behaviors consistent with possessing someone in the fashion that Melissa was held captive.

He left his daughters alone in the house. To insure they did not leave, he installed deadbolts on the doors, requiring keys both inside and out. He glued the windows shut.

He routinely drugged his daughters by putting Benadryl in their hot chocolate.

He bound Selma Janske, Diana Robellar, and Dana Sanchez with duct tape. Such a binding would not leave ligature marks.

On multiple occasions he drugged his first wife, Gina Worley, with Rohypnol, the date rape drug.

On one occasion, his third wife, Pauline Cody, found a suspicious powdery substance in the refrigerator. Shore told her the drug belonged to a friend and that Shore was going to help that friend use it on "a woman they all knew" so that Shore could "take advantage of her." That was the night Pauline awoke to find Shore choking her as he was raping her. She left him after that.

Given his experience with jailing his daughters, binding his victims, and drugging women, Shore was well experienced and well equipped to keep Melissa Trotter captive for several weeks.

The question naturally arises as to where Shore may have held her captive. Assuming he killed Melissa Trotter, I believe I know where. I believe he kept her in his own house on the 700 block of East 18th Street, slightly north of downtown Houston. I realize that Amy Shore was living there around that time, but I wonder if she was actually there at that specific time. I note this paragraph from Strangler, discussing Shore's dejection after Amy left him because he attacked her.
Tony Shore's downward spiral continued unabated. He spent Christmas alone, he had not heard from either of his daughters, and his divorce from Amy was pending.
So neither Amy or either of Shore's daughters was with him around Christmas of 1998 when Melissa Trotter was missing. Shore's daughters had gone to California earlier and would never return to him. I don't know where Amy was, but she was apparently not at home around Christmas of 1998.

Possibly relevant also is what Pauline Shore found when she moved into the house after Amy Lynch moved out for good. Some of the walls inside the house had been recently repainted, and brown paper was on all the windows. Shore explained that he was repainting the house in exchange for rent and that the brown paper was to keep the paint off the windows.


(To be continued)

Monday, May 12, 2014

The Framing of Larry Swearingen, Part 3

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

For a thorough overview of the case against Larry Swearingen, see The Framing of Larry Swearingen, Part 1. To understand how Larry Swearingen was framed with planted evidence, see The Framing of Larry Swearingen, Part 2. In this post, I will discuss how Larry Swearingen was framed by the prosecution-friendly, medically unsound testimony of the Dr. Joye Carter.

Joye Carter assumed the role of Chief Medical Examiner for Harris County in June of 1996. That was six years after Dr. Robert Jordan (of that same office) participated in the framing of Preston Hughes. She replaced the legendary Dr. Joseph Jachimczyk, aka Dr. Joe, who had held the office for the prior 37 years. Dr. Carter would serve for six years, leaving the office in 2002. That was two years after she participated in the framing of Larry Swearingen.

Her six years as Chief Medical Examiner were not without controversy. Consider, for example the case of Neal Hampton Robbins.

In 1999, Robbins was tried for the capital murder of his girlfriend's 17-month-old child, Tristen Rivet. The State's case depended almost entirely on the expert medical opinion of Dr. Patricia Moore. Just as had Joye Carter, Patricia Moore joined the Harris County Medical Examiner's Office (HCMEO) in 1996 and left in 2002. During that time, Carter supervised the relatively inexperienced Moore, and Carter approved Moore's autopsy reports. Though Carter at least once formally chastised Moore for providing prosecution-friendly findings, Carter approved several of Moore's autopsy reports that were later re-examined and revised. One of those later-revised reports related to the case of Neal Hampton Robbins.

At Robbins trial, Dr. Moore testified that the 17-month-old child died from asphyxia due to compression of the chest and abdomen. The defense argued that the injuries described by Dr. Moore resulted from aggressive adult-type CPR performed by persons untrained in infant CPR. The jury agreed with Dr. Moore, convicted Robbins based on her testimony, and sentenced him to life imprisonment.

In 2007, Dr. Dwayne Wolf of the HCMEO re-evaluated the autopsy report of Drs. Moore and Carter. After reviewing the autopsy report, the police reports, the medical records, and the trial testimony, Dr. Wolf concluded that the office could not stand by report. Consequently, he amended it to reflect that both the cause and manner of death were undetermined.

Joye Carter, who had left the office in 2002, was also asked to reconsider the autopsy report. In a letter to the district attorney, she wrote, "Upon my review of this case I would not concur with the opinion on the manner of death as a homicide but would reconsider this case as an undetermined manner." She added "If the Harris County Medical Examiner intends to re-rule this case as an undetermined manner of death I would agree with that change."

Patricia Moore, who had also left the office in 2002, was also asked to reconsider the autopsy report. She also wrote a letter to the district attorney. It read in part:
I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of undetermined, undetermined is best for this case.
After a post-conviction hearing, the judge heaped praise on the work of Dr. Wolf and heaped scorn on the work of Drs. Moore and Carter. Regarding Joye Carter, the judge wrote that Carter's original opinions were "not true," and that her new opinions lack credibility. "They are not stated with or grounded in any scientific or pathological reasoning. Her statement that she would now defer to a hypothetical `re-rule' made by the HCMEO, while at the same time not giving any medical or other bases to support her opinions, is disturbing."

Despite the post-conviction findings of Dr. Wolf and multiple other experts, and despite the recantations of Drs. Moore and Carter, the Texas Court of Criminal Appeals denied Robbins a new trial since he had "failed to prove that the new evidence unquestionably establishes his innocence."

That would not be the only case in which the Patricia Moore / Joye Carter combination resulted in autopsy reports that led to questionable convictions. In the case of Brandy Biggs, Drs. Moore and Carter concluded that 2-month-old Daniel Lemons had died of Shaken Baby Syndrome (SBS). Brandy Briggs was charged with the murder. She could not afford the experts needed to refute Moore's impending testimony and, on the advice of her attorney, she pled guilty to a lesser charge of child endangerment. She was sentenced to 17 years in prison.

The autopsy report was later reviewed by Dr. Carter's replacement, Dr. Louis Sanchez. He reviewed the medical findings and found no evidence of SBS or any other form of abuse. Instead he learned that when the baby had been taken to the hospital, the medical personnel had inadvertently inserted the breathing tube into the stomach rather the a lung. The baby was left without oxygen for 40 minutes. Dr. Sanchez changed the cause of death to asphyxia. Briggs was eventually exonerated and released.

There were also the infant-death cases of Ruth Ann Gilliam, Franck Chavez, and Cynthia Cash. In fact, Patricia Moore had an unusual penchant for finding cases of SBS, at least according to Dr. Jim Bromberg. He points out that, based on numbers from the U.S. Department of Health and Human Services, the Houston metropolitan area should see two fatal cases each year. Dr. Moore by herself found seven during an 18-month period. Some or all of the resulting autopsy reports were approved by Joye Carter, only later to be revised by her replacements only after convictions for murder.

The problems under Joye Carter's leadership of the HCMEO were not limited to the suspicious autopsies of Patricia Moore. Dr. Carter herself faced revocation of her medical license and loss of her job for allowing an unlicensed pathologist to perform autopsies. The Texas Board of Medical Examiners filed a formal complaint against Carter and recommended that she be formally reprimanded and fined up to $50,000. In the end, she was fined only $1,000.

Two wrongful-termination civil suits, however, cost the people of Harris County far more than $1,000. Though Joye Carter never got around to firing Patricia Moore for providing prosecution-friendly autopsy reports and trial testimony, she did fire Drs. Elizabeth Johnson and Marilyn Murr.

Dr. Carter fired Dr. Johnson allegedly for working at unauthorized times. Johnson claimed that she was fired because she refused to modify her scientific conclusions to correspond with the State's theory of a specific case. The jury agreed with Dr. Johnson and awarded her $315,000.

Dr. Carter fired Dr. Murr because Murr had secretly recorded some of their conversations about the unlicensed pathologist. In the whistle-blower suit to follow, one of Murr's claims was that Carter had instructed her to modify autopsy findings to make them more favorable to the State. According to Murr, Joye Carter wanted some foreign hairs found on a corpse to be classified as contamination, since the hairs exculpated the State's primary suspect.

Holy Similarities, Batman!

The jury awarded Murr $250,000, but that verdict was later set aside by an appeals court.

Another instance, minor in comparison to the problems mentioned above, highlights Joye Carter's defensive, "it's not my fault", "I'm a victim too" attitude towards her job. Under her supervision, bodies were being stacked one on top another, and even on top of two others, due to a shortage of metal trays. One photograph, for example, showed an infant's body between two adult bodies. The risks of contamination are obvious.

Carter at first denied that such body-stacking was taking place. She then conceded that it did indeed happen, but offered an interesting excuse. In a bit of spectacular irony, she claimed that the photographs were staged by disgruntled employees. In other words, she claimed she was framed. Regarding the photographs and five anonymous letters sent to county officials about the office, Joye Carter told a reporter: "We've had enough, and it needs to be known that the office is being harassed."

This incident blew up in the three-week window between Larry Swearingen's arrest and the discovery of Melissa Trotter's body. At Swearingen's trial, Dr. Carter conceded that she took a special interest in his case. She normally conducted 40 to 50 autopsies a year, compared to 500 a year for the other pathologists in the office. She reserved for herself the autopsies in high-profile cases, and the Swearingen case had certainly become high-profile. The police had their suspect behind bars before the body was found, and that made news.

Dr. Carter conducted the autopsy of Melissa Trotter on 3 January 1999. That was one day after Melissa's body had been discovered, 25 days after Trotter had disappeared, and 22 days after Larry Swearingen had been arrested. Though Dr. Carter was perhaps lethally slow to acknowledge the point, her autopsy proved that Larry Swearingen could not have been the person who killed Melissa Trotter.

The body had started to decompose. It had suffered some early insect habitation and rodent predation. The internal organs nonetheless revealed that the body had only recently been deposited in the forest. Within days of death, internal organs begin to liquify. Trotter's internal organs were in such good shape that Dr. Carter was able to slice them and preserve them as microscope slides.

The body weight was also a powerful indication of Trotter's recent demise. As bodies decompose, they quickly loose weight due to desiccation, decomposition, and predation. After three weeks, a body may lose as much as 90% of its body mass. So fresh was Melissa Trotter's body that it had lost less than 4% of its weight.

You need not take my word for these insights into pathology. Dr. Carter herself made these points as part of an affidavit she signed after Larry Swearingen had been convicted of killing Melissa Trotter. From her affidavit.
Pancreas, spleen and liver tissues is [sic] known to autolyze [liquify] quickly. At room temperature, it is not unusual for these organs to liquefy within days. ... 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. 
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.
Had Dr. Carter included such an unambiguous forensic conclusion in her autopsy report, Larry Swearingen would never have faced trial for the murder of Melissa Trotter, I would not be writing this series, and you would not be reading this post. Instead, Dr. Carter made no mention whatsoever of the time or date of death in the autopsy report.

After having remained mute on the subject in her autopsy report, Dr. Carter then framed Larry Swearingen at his trial. I present the critical portion of her testimony below.
Q. Based on the evidence that you saw and the evidence you've since gathered, do you have an opinion as to how long that body had been there? The rate of decomposition and all that, do you have an opinion as to the time of death?
A. Yes, I did form an opinion. 
Q. What was that? 
A. I arrived at the opinion of the body being dead for approximately 25 days or so, based upon the appearance. 
Q. So if a person disappeared on December the 8th of 1999 and the body was recovered on January 2nd of 1999, that would be consistent with your findings? 
A. Yes, it would.
Holy Prosecution-Friendly Testimony, Batman!

Despite the inability of any other pathologist to determine the precise date of death of a decomposing body, and despite the nearly pristine state of the Trotter's internal organs, and despite the undiminished weight of Trotter's corpse, and despite the fresh blood flake found under one of Trotter's fingernails, Dr. Joye Carter was able to magically determine that Melissa Trotter died on the very day when she was supposed to meet the defendant.

That is absolutely incredible, in the strict sense of "not believable".

With Dr. Carter's testimony, coupled with the testimony that the pantyhose remnant was found at the defendant's trailer, Larry Swearingen became a dead man walking. It makes no difference to the State and People of Texas that Joye Carter's testimony has been impeached ten times over by ten scientists and medical experts. It makes no difference that Joye Carter herself was one of those ten experts, that she recanted her trial testimony. This entire case comes down to the disturbing fact that Joye Carter testified in front of a jury, under oath, that Melissa Trotter had been murdered 25 days before her body was discovered. Everything else is judicial fluff.

I have previously discussed the affidavits of the experts who have thoroughly impeached Joye Carter's testimony. You can find them buried within two series I have already written on this case: The Absolutely Astounding Case of Larry Swearingen and The Most Innocent Man on Death Row. I suggest that the second of the two series provides the better summary. I'll not discuss the affidavits again here. Instead, I choose to discuss Joye Carter's willingness to swear to whatever may be convenient for her at the moment.

In her autopsy report, Joye Carter took no position regarding the date of Melissa Trotter's death. At trial, the DA never got around to asking her about her professional medical opinion about the date of death.

No, he did not.

He asked her a much different question. Again from the transcripts, emphasis mine:
Q. Based on the evidence that you saw and the evidence you've since gathered, do you have an opinion as to how long that body had been there?
He asked for her opinion, not for her professional medical opinion. Furthermore, he did not ask for her opinion based solely on the autopsy that she performed; he asked her for her opinion based on the autopsy plus the evidence she had gathered since the autopsy. I suspect that other evidence included learning that the pantyhose remnant of the murder weapon was conveniently discovered three days after the autopsy in a trashcan near Swearingen's home.

Dr. Carter's answer was too specific and too vague at the same time. It was far too specific in that she opined that the murder took place on a specific day, the day Swearingen was scheduled to meet Trotter. It was too vague with respect to any explanation for the basis of her opinion.
A. I arrived at the opinion of the body being dead for approximately 25 days or so, based upon the appearance. 
She gave her opinion, not necessarily her professional medical opinion. She based her opinion on the appearance of something she did not specify. It could not have been the appearance of the body, since it had lost almost no weight. It could not have been the appearance of the internal organs, since they were nearly pristine. Perhaps it was the general appearance of Swearingen's guilt. The pantyhose remnant had, after all, been discovered outside his home. It would certainly look foolish to claim the body had been deposited in the Houston National Forest well after he was jailed. Dr. Carter therefore gave a convenient answer, one in line with that desired by the police and the district attorney.

Well after her testimony had been instrumental in convicting Swearingen, Drs. Glenn Larkin, Lloyd White, Louis Sanchez (Carter's replacement), and others explained to the courts and the public that her autopsy report actually exculpated Swearingen. Swearingen's appellate team tracked Joye Carter. down, provided her with the expert opinions, and asked her if she would also prepare and sign an affidavit. To her credit, she agreed to do so.

After a brief introduction, she blamed others for her fatally flawed estimate of Melissa Trotter's date of death. She blamed the attorneys for not asking her the right questions, and she blamed unnamed sources for not providing her with valuable information. From her affidavit:
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. ... I have also reviewed several pieces of forensically important information that, to the best of my recollection, were not made available to [me] during 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 [in this affidavit] ... 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 an earlier date of death, 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. Again from her affidavit:
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 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 [liquify] quickly. ... 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.
That affidavit, if allowed to stand, may have freed Larry Swearingen. Joye Carter, however, was not finished waffling. She was not finished bending whichever way the wind was blowing. The prosecutors, realizing the devastating effect of Joye Carter's recantation of her trial testimony, convinced her it would be best to distance herself from her affidavit. From The Courier of Montgomery County:

Dr. Joye Carter, former medical examiner for Harris County, vehemently stood by [her trial] testimony Tuesday in the 9th state District Court of Judge Fred Edwards, despite repeated attempts by defense attorney James Rytting to hold her to an affidavit she signed and had notarized Oct. 31, 2007, which secured, in part, Swearingen’s August 2011 stay of execution. 
The affidavit, Rytting noted in his cross-examination, states that the significance of the internal autopsy findings support a forensic opinion that Trotter’s body could not have been exposed longer than two weeks in Sam Houston National Forest where she was discovered Jan. 2, 1999. 
“I did not at any time say I recanted my original comments in trial – and I didn’t say it afterward,” Carter said. 
“It’s possible,” Carter responded frequently to Rytting’s string of hypothetical questioning on whether Trotter’s body could have been exposed less than six days.
Not surprisingly, Joye Carter blamed someone else for her affidavit. She blamed Swearingen's appellate attorney, James Rytting.
Rytting submitted that Carter’s affidavit conflicted with her testimony, citing examples from the affidavit as evidence. 
From the affidavit: “The forensic opinions, herein, address the significance of autopsy findings made during the internal examinations of Ms. Trotter’s body in the context of the foregoing information. 
“They represent what I would have testified to at trial if I had been provided this information and if attorneys for the state or defense had asked me to address the significance of the findings made pursuant to the internal examination of Ms. Trotter’s body.” 
Carter argued that the wording in the affidavit did not belong to her, explaining to Edwards that it was written by Rytting. 
“I could not force you to sign an affidavit that you don’t believe in,” Rytting said. 
“Yeah you could,” Carter replied. “It is not that I didn’t believe in it. The initial conversation we had, information was not brought up. There was not a pretrial discussion that I recall with the other attorney. I said there is a possibility and I distinctly told you I would not agree to two or three days postmortem interval. I absolutely would not and that was why I believe this wording was in this way.” 
Chief Prosecutor Warren Diepraam said he thinks Carter made a mistake by signing the affidavit but is confident she will not be signing any attorney-written affidavits anytime soon.
I suspect the Chief Prosecutor Diepraam is correct. Joye Carter will no longer lift a finger to save Larry Swearingen. She will unwaveringly stand by her medical opinion, what it may be at the moment.

In 2000, the same year in which she participated in the framing of Larry Swearingen, Biblical Dogs Press published Joye Carter's autobiography. At the ripe of age of 43, she titled her autobiography My Strength Comes from Within.

Sunday, May 11, 2014

Mother's Day 2014

The year 2012 was a difficult year for me, for many reasons. One of the reasons was that my mother died. She died before Mother's Day 2012, so this will be the third that I cannot wish her a happy Mother's Day.

Even when my mother was alive, Mother's Day meant something different to me than most people. I've noticed that most (not all, but most) of the people who fight stubbornly to free loved ones are mothers. On Mother's Day, therefore, I find myself thinking of those who have lost children for crimes they did not commit.

It seems inappropriate to wish them a happy Mother's Day as their children languish in prison, or lie in a grave, for crimes they did not commit. Furthermore, it seems insensitive to merely ignore them for fear of not having the right words. I therefore want to take this opportunity to offer my best wishes to some of those mothers, to those I have worked with and continue to work with.

I offer my best wishes to Evelyn Case. Her son Byron is serving two life sentences without possibility of parole for a murder he did not commit. Byron's petition to Governor Nixon for an absolute pardon is here. My two letters to Governor Nixon in support of that petition are here and here. My book on the case is here. The free PDF version is here. Byron's case is gaining some traction, but I'll discuss that no further here.

I offer my best wishes to Pat Ledford. Her son Michael is serving 50 years without the possibility of parole for a murder he did not commit. Michael's petition to Governor McDonnell, which I prepared with the help of his mother, is here. Michael's case is gaining some traction, but I'll discuss that no further here.

I offer my best wishes to Brenda Johnson. Her son Preston Hughes III was executed for a crime he did not commit. Preston's application for Writ of Habeas Corpus, which I prepared, is here. I continue to work with Brenda on her son's case, but I'll discuss that no further here.

I also offer my best wishes to Alice Jackson. Her teenage daughter, Monalisa Espinosa, was murdered. The case remains unsolved. Last year I was contacted by Victor Jackson. Victor and I have built a working relationship that has led to some new discoveries in several cases of interest to us both.

On this Mother's Day, 2013, I offer my best wishes to Evelyn Case, Pat Ledford, Brenda Johnson, and Alice Jackson.

Wednesday, May 7, 2014

The Framing of Preston Hughes, Part 2

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

During the night of 26 September 1988, fifteen-year-old Shandra Charles and her 3-year-old cousin Marcell Taylor died along a narrow dirt trail passing through a dark, overgrown field west of Houston. Each child was stabbed in the same, precise manner: once in the upper left chest, once through the left side of the neck. Marcell Taylor suffered a perforated carotid artery and a perforated jugular vein. Though it would seem impossible, Shandra Charles' neck wound was even more serious. Both her carotid and jugular had been completely severed.

Without immediate medical attention, people cannot long survive a severed carotid. With each beat of the heart, blood spurts from the carotid rather than delivering its oxygen to the brain. The victim loses consciousness within a minute and dies within another.

Six months after Shandra Charles bled out on that lonely dirt trail, hockey goaltender Clint Malarchuk had his carotid artery severed by a skate blade. He instinctively applied pressure to his wound and skated immediately towards his team's trainer. "All I wanted to do was get off the ice," he later explained. "My mother was watching the game on TV, and I didn't want her to see me die."

The photograph below shows just a bit of the blood Malarchuk spilled while trying to keep his mother from seeing him die.

The photograph below shows some of the blood Shandra Charles spilled during the last two minutes of her life.

CrimeScene9 elongated blood stain.png

Clint Malarchuk survived because team trainer Jim Pizzutelli had been an Army medic in Vietnam. Pizzutelli reached into Malarchuk's neck and pinched the carotid closed until doctors could stitch the ends back together.

Jim Pizzutelli was not around to save Shandra Charles. No one was. Of the many police officers who arrived before the paramedics, not one of them attempted to save her. Not one of them applied pressure to either of her wounds. Not one them tried to compress her heart. Not one of them attempted to breathe life into her. It was obvious that she was dead and beyond saving.

Houston Police Patrol Sergeant Donald L. Hamilton was one of those police officers who made no effort to save Shandra Charles. Though he arrived late on the scene, he claimed she was still alive and conscious, but bleeding badly from both her chest and neck. He did not, however, insert his fingers into her neck and pinch closed her severed carotid. He did not even apply pressure to either of her wounds. Instead, he claims he interviewed her, that she responded clearly and precisely, and that she told him that the person who attacked her was "Preston."

Sgt. Hamilton explained all this during his trial testimony, while under oath, while speaking to the jury that was to decide Preston Hughes' fate. In an affidavit prepared shortly before the execution, retired medical examiner Dr. Robert Lloyd White signed an affidavit substantiating the point I had been making for months and months: Shandra Charles could not have provided a dying declaration to anyone. From that affidavit.
[I]t is neither anatomically nor physiologically possible that Ms. Charles could've been conscious for more than 30-60 seconds given the expected rate of blood loss when a common carotid artery is cut. The electric activity in the brain simply stops after even a short interruption in blood flow. ... [I]t is simply not medically feasible that this young woman ... could have spoken to the officers as they claimed.
Dr. White is hardly the only medical professional to explain that people rapidly lapse into unconsciousness after suffering a severed carotid. Various appellate court decisions preserve similar opinions from at least eight medical experts who testified under oath during criminal trials. Of those eight medical experts, each testified that a person would lose consciousness within minutes of experiencing a severed carotid. A summary of their estimates follows.
People v. Mayfield, CA, 1997 – "immediately"
State v. Penley, TN, 2003 – "within seconds"
State v. Henretta, TN, 2009 – "30 seconds"
Cooper v. Brown, CA, 2007 – "within 60 seconds"
People v. De Sarno, NY, 1986 – "60 seconds"
State v. Bonds, TN, 2010 – "a few minutes"
Jefferson v. State, AL, 1984 – "several minutes"
Commonwealth v. Lambert, 2000, PA – "3 minutes"
Police officers, such as Sergeant Hamilton, have long known that they can quickly render people unconscious by use of a carotid control hold. The hold compresses both carotid arteries and thereby prevents blood from reaching the brain. If the hold is properly applied, unconsciousness follows quickly. If the hold is not promptly relaxed, death follows.

In 1982, six years before Shandra Charles allegedly gave her dying declaration, the Los Angeles Police Department restricted the use of choke holds after they led to sixteen deaths in eight years. The deaths summarized below are the only three attributed to insufficient blood to the brain and accompanied by an estimated time of carotid compression:
Robert Cameron died on 20 December 1979 from a carotid control hold maintained for less than 90 seconds. 
Luel Marshall died on 3 February 1981 from a carotid control hold maintained for approximately 5 seconds, followed later by a carotid control hold maintained for 2 to 3 seconds. 
Robert Cousins died on 12 May 1981 from from a carotid control hold maintained for approximately 20 seconds.
Judo experts also know that opponents can be quickly rendered unconscious by constricting the carotid arteries. From "Deaths Allegedly Caused by the Use of 'Choke Holds' (Shime-Waza)":
The "choke holds" known as shime-waza used in the sport of judo have been taught and used by law enforcement officers to subdue violent suspects. ... If the carotid artery hold is properly applied, unconsciousness occurs in approximately 10 seconds (8-14 seconds).
Police and judo strangle holds deprive the brain of blood by compressing both carotids. Shandra Charles' brain was deprived of blood because way too much of it gushed from her severed carotid. She bled out. She had too little blood to maintain brain function. In medical parlance, she exsanguinated.

An exsanguination study on sheep provides further insight into how long Shandra Charles could have survived after her carotid was severed. The cardiovascular system of sheep is coincidentally similar to that of a human the size of Shandra Charles, at least in terms of blood volume and pumping rate. Sheep are often slaughtered by severing one or both of their carotid arteries. To determine whether the technique is humane, the study monitored the brain function of sheep after their carotids were severed to determine how quickly they succumbed. On average, the sheep who had only one of their carotids severed lost all brain function within 70 seconds.

The jury was never informed that Shandra Charles would have lapsed into unconsciousness soon after her carotid was severed, nor were they informed that she would have died soon after losing consciousness. Instead the jury was told that Shandra Charles could have lived for more than four hours after suffering her injuries. From the trial testimony of Assistant Medical Examiner Robert Jordan, under the tailored questioning of Assistant DA Chuck Noll:
Q. Let me ask you this, Doctor. Would it have been possible, based on her injuries, for her to have been stabbed as early as 8:30 in the evening on September 26th of 1988, if she died from these injuries at 12:58, I believe you said, in the a.m. on the following day? … Can you tell? 
A. Not with any certainty. 
Q. Okay. Is it difficult to pinpoint times of injuries and times of death when cutting and stabbing injuries are involved? 
A. Yes, sir. 
Q. Is that because -- why is that? 
A. The determination of the time of death is difficult, at best. With cutting and stabbing injuries, it is even more difficult because one has to consider the loss of blood and people bleed at different rates from different sharp trauma wounds. One cannot be sure, either, of the amount of medical support the decedent received in the interval from injury to death.
Instead of hearing medical evidence that Shandra Charles died so quickly that she could not have provided anyone with a dying declaration, the jury heard that Shandra Charles could have lived for four and a half hours, from 8:30 PM on Monday to 12:58 AM on Tuesday. I will explain how the prosecutor and his prosecution-friendly witness executed this slight-of-hand and thereby helped execute Preston Hughes.

First, Shandra Charles did not die at 12:58 AM, as Chuck Noll suggested in his hypothetical question. Chuck Noll loved hypothetical questions. They allowed him to solicit answers to questions that misstated the evidence. The witness didn't commit perjury and Noll didn't suborn perjury, because he said "if." He did not say that Shandra Charles died at 12:58 AM; he instructed his witness to assume that Shandra Charles died at 12:58 AM. "If" the jury misunderstood, then that was their problem.

The facts are:
Shandra Charles died shortly before 11:30 PM on a lonely trail crossing a dark, overgrown field. 
None of the many police officers to arrive on the scene lifted a finger to save her or revive her. 
The paramedics attempted to resuscitate her and rushed her to a nearby hospital. 
The hospital refused to admit her and sent her instead, along with the paramedics, to the distant Ben Taub Hospital. 
Shandra Charles was declared dead on arrival at Ben Taub at 12:58 AM. 
Shandra Charles did not die at 12:58 AM, even though the jury never heard any honest, straightforward medical testimony about her ability to survive her wounds.
Assistant DA Chuck Noll avoided suborning perjury by qualifying his questions with "if". Assistant Medical Examiner Robert Jordan avoided perjuring himself by being conveniently ignorant of the critical facts of the case. He testified that he couldn't be sure how long Shandra Charles lived because he did not know "the amount of medical support the decedent received in the interval from injury to death." Perhaps, he might have reasoned, someone stuck his fingers in her neck and pinched off her severed carotid artery. If someone had done that, she might have lived four and a half hours. She might even be alive today. Right? Who knows?

It seems unlikely that the prosecution could have selected any medical examiner more ignorant of the case than Robert Jordan. Dr. Jordan did not perform the autopsy on Shandra Charles, nor did he perform the autopsy on Marcell Taylor. He was not in the room when either autopsy was conducted. He apparently knew nothing about the case until shortly before trial when, presumably, Chuck Noll prepped him for his testimony. Under cross-examination, Dr. Jordan conceded that he had not even read the autopsy reports until earlier that morning, while sitting in his car.

Not only was Preston Hughes framed by planted evidence, as described in the previous post, he was framed by the intentionally unrevealing, prosecution friendly testimony of a uninformed witness from the Office of the Medical Examiner for Harris County.

I'll not discuss further in this series the many ways in which the State and People of Texas framed Preston Hughes for a murder he did not commit. I discussed the planted eyeglasses and the scientifically unsound testimony of the medical examiner because Larry Swearingen was framed in similar fashions. Scraps of paper were planted near his parents' home and a pantyhose remnant was planted at his trailer. Dr. Joye Carter provided scientifically unsound medical testimony that led to Swearingen's conviction. Perhaps not coincidently, Dr. Carter was, at the time of her testimony, in charge of the Office of the Medical Examiner for Harris County, the same office responsible for the prosecution friendly testimony of Dr. Robert Jordan.

I will discuss Dr. Carter and her role in the framing of Larry Swearingen in the next post.

Tuesday, May 6, 2014

The Framing of Preston Hughes, Part 1

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

In the case of Robert Otis Coulson, the Houston police planted an envelope on a desk. The State and People of Texas used that planted evidence to convince a jury that Coulson was expected to be at the murder scene around the time of the murder.

In the case of Larry Swearingen, the police or the person who killed Melissa Trotter planted scraps of paper near the home of Swearingen's parents. The State and People of Texas used that planted evidence to convince a jury that Swearingen had been with Melissa Trotter on the day of the murder.

Also in the case of Larry Swearingen, the police or the person who killed Melissa Trotter planted in Swearingen's mobile home a pair of pantyhose minus the leg that had been used to strangle Melissa Trotter. The State and People of Texas used that planted evidence to convince the jury that Larry Swearingen had strangled Melissa Trotter.

In the case of Preston Hughes, the most thoroughly framed man ever, the Houston police planted a pair of eyeglasses between two sofa cushions. The prosecution then used those planted eyeglasses to convince the jury that murder victim Shandra Charles had been in Hughes' apartment on the night of her murder.

I'll begin by recreating the HPD search of Preston Hughes' apartment. I'll rely on the police report of HPD Crime Scene Officer F. L. Hale. Officer Hale's job was to photograph and collect the evidence. In his police report, he frequently referred to himself in the third Person. The Skeptical Juror believes that writing style confuses rather than clarifies, but The Skeptical Juror had no say in the matter.

From Officer Hale's police report, the many spelling and typographical errors being in the original:
Officer Hale left the morgue and went to the CSU office. While completing the report I received a telephone call at approximately 8;30. I was advised by homcide detectives D.A. Ferguson and E.T. Yanchak that they had obtained a Consent to Search from the suspect. Officer Hale was requested to met with then at 2310 Crescent Park, which is the Lakehurst Apartments.
Hughes' apartment was on the second floor. His apartment was on the left as Hale climbed the stairs shown in the HPD photograph immediately below:

Returning to Officer Hale's report, errors in the original:
Upon entering the apartment Officer Hale was lead into the living room and shown a pair of precription silver rim glasses. These glasses were found between the cushions of a three cushion couch, against the south wall of the living room.
Based on Officer Hale's description and sketch of Hughes' apartment, I prepared a series of sketches to help walk you through search. The first of those sketches follows immediately: 

As Hale entered the apartment, one of the detectives led him directly to a "three cushion couch" in the living room and pointed to a pair of eyeglasses wedged between two of the cushions. Officer Hale took two photographs of the couch and the embedded eyeglasses. I present the first of those two photographs below. Good luck seeing the eyeglasses.

Maybe you can see the eyeglasses if you look hard, if you squint. There they are between the center seat cushion and the one beside it, the one rightmost in the image.

Here's the second shot, presumably one that Officer Hale would consider to be a closeup.

Perhaps you can see the glasses if you enlarge the image by clicking on it. To simplify matters, I've cropped the photo around the glasses, enlarged the cropped segment, and rotated it. Now you can finally see the glasses.

During Hughes' trial, Shandra Charles' best friend testified that she last saw Shandra alive, not long before the murders, wearing those eyeglasses while standing outside Preston Hughes' apartment. That testimony coupled with those eyeglasses were damning evidence of Hughes' guilt. Both the testimony and the eyeglasses were, however, manufactured evidence. The friend's trial testimony is contradicted in all crucial details by the interview she provided to the HPD on the morning after the murders. The eyeglasses were placed in the position shown by members of the Houston Police Department. As I prove that to you, I will refer to the eyeglasses as the HPD glasses.

The HPD glasses do not appear to me as if they simply fell into the position shown in the photograph. The glasses did not simply lay on a cushion, nor did they simply fall between the cushions. They appear to be forcefully wedged between two cushions.

I therefore decided to see if my cheap, well-used reading glasses would fall between the cushions of my not-so-cheap but well-used couch in similar fashion. I dropped my glasses time after time. I dropped them while standing in front of the couch, while sitting on one cushion, while simultaneously pushing on the other cushion, while in the act of standing up or sitting down. As Dr. Seuss might say, I dropped them from a box, I dropped them with a fox. I was never able to approximate the arrangement recorded in Officer Hale's photographs.

Though each time I attempted to drop my glasses in the seam between my sofa cushions, they usually didn't land in the seam. Most frequently, they straddled the seam. They did, however, fall in the seam with sufficient frequency that I have no difficulty believing eyeglasses can fall between couch cushions if dropped or placed nearby. Here is a picture of one instance in which my glasses fell into the seam between the cushions.

When my glasses actually landed between the cushions, they usually (almost always) ended up with the lenses nearly vertical. This is different than the arrangement of the HPD glasses. The HPD glasses ended up with the lenses nearly horizontal. Sometimes (not very often) my glasses ended up with the lenses horizontal, just as the HPD glasses allegedly had.

While my glasses would sometimes land with lenses horizontal, they always ended up along the top of the seam between the cushions. They never managed to wedge themselves in between the cushions, as the HPD glasses allegedly had.

I never really expected that they would wedge themselves in. They're eyeglasses, for gosh sakes, not anvils. I did wonder, though, if they might wedge their way in between the cushions if people sat on one or both of the cushions. So I tried repeatedly to cause them to wedge into a position similar to the HPD glasses. I arranged the glasses in many different starting positions, then I pressed on one cushion, then the other, then both. I even sat and wiggled around. No luck. No matter what I tried, I could not give my glasses a couch cushion wedgie.

I came close a couple times. Consider the following image.

Though it's somewhat difficult to see, the glasses are sorta, kinda wedged between the sides of the two cushions. It's not quite like the arrangement of the HPD glasses, but it's as close as I could get. 

Continuing with Officer Hale's photographic stroll through Preston Hughes' apartment, I return to Hale's police statement and to my informative series of sketches. The egregious textual errors are in Hale's original.
Officer Hale was then lead into the southeast bedroom and shown a pair of blue jean, two blue shirt on the bedroom floor.

Here is the photograph that Officer Hale took looking down the hallway into the master bedroom.

You can barely see a pair of pants and a shirt on the floor in front of a dresser.

Stepping into the doorway, Officer Hale took following photograph:

Stepping into the master bedroom and turning to his left, Officer Hale took the following photograph.

Together, the photographs show the blue jeans and the two blue work shirts that Officer Hale secured as evidence. The clothing items would not be checked for blood until three days before the beginning of the trial. James Bolding, the notorious supervisor of the notorious serology department of the notorious HPD crime lab, would record that no blood was apparent on the clothing and that two blood-specific tests were negative for blood. James Bolding and Assistant DA Chuck Noll, however, would keep those test results from the jurors. Instead, under the carefully orchestrated questioning of Chuck Noll, James Bolding would inform the jurors that he had found blood on blue jeans and one of the blue works shirts. That, however, is a different frame for a different telling.

Here, I will try to focus on the eyeglasses.

After photographing the clothing in the master bedroom, Officer Hale photographed a knife and sheath in the closet of the second bedroom. The knife and sheath had been located in the box nearby. The items had been removed for the purpose of photographing them. Once again, from Officer Hale's police report, followed once again by one of my ever-enlightening sketches. 
Inside the closet of the southwest bedroom Officer Hale was shown a large knife wedged inside a cardboard box, found on the floor, next to the knife was a sheath.

Here's the photograph of the knife and sheath.

There is some rust on the tip of the knife. No blood was apparent anywhere on the knife or the sheath. The notorious James Bolding of the notorious serology department of the notorious HPD crime lab did not test this knife for blood until he was actually sitting in the witness box, testifying before the jury. He applied a reagent that reacts to the iron in rust as readily as it reacts to the iron in blood. Like magic, the reagent changed color right before the jurors' eyes. Under the carefully orchestrated questioning of Assistant DA Chuck Noll, James Bolding testified that the knife had just tested positive for blood. During the tepid cross-examination by Hughes' defense attorney, James Bolding conceded that a few other substances, such as turnips, might cause the reagent to change color. Bolding failed to mention that one of the substances that created false positives was rust.

But that is a different frame for a different telling.

As you can see from the photograph, the knife blade is single-edged: it has one sharp edge and one blunt edge. The blade measured five inches long and one inch wide. That knife, therefore, is absolutely not the murder weapon. The autopsy reports for 15-year-old Shandra Charles and her 3-year-old cousin Marcell Taylor describe lethal neck wounds that could only have been caused by a long, narrow, double-edge blade. The jurors, however, would never learn that. Instead, the last-moment, fill-in medical examiner, the one who had first read the autopsy reports that morning in his car, testified that the knife in the photograph above was consistent with the stab wounds.

But that is a different frame for a different telling. Here, I will try to focus on the eyeglasses.

After photographing the knife and the sheath, Officer Hale proceeded (as the police like to say) to take photographs of the items on the dining room table. Again from Officer Hale's police report:
On the dining room table was a maroon pullover shirt, a clear plastic bag containing green leafy substance.

Here's the photograph.

Officer Hale took the maroon shirt and the green leafy substance into evidence. The green leafy substance, of course, turned out to be marijuana. No blood was apparent on the shirt. Testing was done to detect any unseen blood.

CSU Officer Hale prepared a property invoice listing all the items that he had secured from Hughes' apartment, from the crime scene, from the hospital, and from the morgue. He typed the date of the property invoice in the appropriate box. That date was 9/27/88, the day after the murders. He typed his name and signed the document. He then delivered the items and the property invoice to the HPD property room.

Property Officer F.L. Martin was on duty. He inserted the property invoice into his typewriter and typed his name and he typed the time he received the items from Officer Hale. The text that Martin typed is misaligned with the text that Hale typed. Officer Martin then signed the property invoice.

As part of an open records request, Barbara Lunsford of the Mystery Crime Scene received a copy of that property invoice. She added two notes in red. She also outlined the date / time box in red. I obtained my copy of the document from her. I present my copy of the document immediately below.

Astoundingly, the time on the property invoice is 2:58 AM.

Preston Hughes' supporters long claimed that this document is proof that the police searched Preston Hughes' apartment not after sunrise, as they claimed. Instead, the HPD must have searched Hughes' apartment sometime prior to 2:58 AM. Since the time on the Consent to Search form was 5:35 AM, Preston's supporters claim that the search was illegal, that the incriminating evidence recovered during that search was inadmissible, and that Preston therefore deserved a new trial.

For a long time, this property invoice troubled me. I agreed that it proved the HPD searched Hughes' apartment without warrant or consent. The focus of my investigation, however, was whether or not Preston Hughes' was actually innocent. I was focused on the results of the search rather than on the propriety of the search. From my perspective, I didn't see how the property invoice helped me reach a decision.

Until ...

Like a bolt from the blue, it hit me that the HPD had searched the Hughes's apartment twice: once before 2:58 AM as evidenced by the property invoice, and once after sunset as evidenced by one of the photographs from the second search. I repeat that photo below.

You can see sunlight through the curtain. The lamp on the dresser is off. The hallway light is off. The hallway light switch is in the off position. This photograph and the others in the collection were taken during the second search, after sunrise. Along with the property invoice, this photograph proves that the HPD planted evidence in Preston Hughes' apartment.

As a minimum, the HPD planted Preston's own clothing, knife, scabbard, and marijuana back in his apartment. Someone secured those same items during the first search, the search that took place not long after midnight. Officer Hale turned those same items into the property room at 2:58 AM. Someone removed those items from the property room and planted them back in Preston Hughes' apartment.

It had been a serious mistake to search and secure items from the Hughes' apartment without a warrant or a signed Consent to Search. I suspect that, after the shift change, the incoming detectives recognized the problem and settled on a recovery plan. They recovered Preston Hughes' items from the property room, planted them right back in his apartment, and photographed the items as if nothing had ever happened.

But it gets better, or tragically worse, depending on your point of view.

The eyeglasses that did not show up in the first search, as per the property invoice, did show up in the second search, as per the sunlight coming through the blinds. The eyeglasses were wedged between the cushions of Preston Hughes' couch not on the night of the murders. Instead they were planted between the cushions of the couch after daylight the following morning.

But it gets better still, or tragically worse still, depending on your point of view.

As Ward Larkin and I, lay persons that we are, were preparing multiple legal motions to save Preston Hughes from a wrongful execution, Ward Larkin discovered that there was box of evidence still at the courthouse. Among the other startling discoveries in that box were the eyeglasses. He took a picture of them. I present a cropped version of that picture below.

I compared the eyeglasses in Ward's photograph with the eyeglasses in Officer Hale's photograph, the enlargement of which I repeat below.

I concluded that the eyeglasses in the two photos were one in the same. Still they seemed significantly different. I wasn't struck by the writing on one lens or the label on the other. I was struck instead that the temples, the arms that extend over the ears, were so obviously visible behind the lenses. I didn't recall that from the HPD photos. I didn't recall it for good reason. In the HPD photos, the temples are extended!

And there it finally is. The HPD recovered Shandra Charles' eyeglasses from the crime scene. During the second search of Preston Hughes' apartment, while planting the other items back in his apartment, the HPD planted Shandra Charles' eyeglasses between the cushions of his couch. To pose the eyeglasses nicely for the impending photo shoot, the HPD extended the temples of Shandra Charles eyeglasses and shoved them between the cushions of Preston Hughes' couch until the lenses were wedged in the position shown.

The State and People of Texas executed Preston Craig Hughes, III on 15 November 2012, despite clear and persistent warnings that he had been framed.