Monday, May 5, 2014

The Framing of Larry Swearingen, Part 2

This is the sixth 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.

On 8 December 1998, Melissa Trotter disappeared from Montgomery College, a community college 30 miles north of Houston.

On 11 December 1998, Larry Swearingen was jailed for charges unrelated to the the disappearance of Melissa Trotter.

On 17 December 1998, John Parsley found scraps of paper along a ditch in front of his home. The scraps turned out to be pieces of Melissa Trotter's class schedule and health insurance paperwork. Parsley was a neighbor of Larry Swearingen's mother and stepfather. He found the scraps as he was taking out his trash cans for pickup. Normal trash days were Mondays and Thursdays. The pieces of paper had not been there during the prior trash pickups on 10 and 14 December. The scraps appeared only after Larry Swearingen had been in jail for 9 days.

On 2 January 1999, several hunters discovered the body of Melissa Trotter in the Sam Houston National Forest, some 55 miles north of Houston. She had allegedly been strangled with one leg from a pair of pantyhose, the remainder of which was missing. The police had searched that area three times, at least once coming within 20 feet of where the hunters discovered the remains. None of the searchers noticed a dead body. None of them smelled a decaying corpse. The body appeared only after Larry Swearingen had been in jail for 22 days.

On 3 January 1999, Chief Medical Examiner Joye Carter performed the autopsy on Melissa Trotter's body. In a sworn affidavit provided after Swearingen's conviction, Dr. Carter explained that the nearly pristine state of Trotter's internal organs indicated that "the body had not been exposed more than two weeks in the forest environment." Dr. Carter affirmed also that Trotter's undiminished body mass "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." Based on Dr. Carter's medical opinion, Melissa's body was not deposited in the Sam Houston National Forest until Larry Swearingen had been in jail for at least 8 days.

In addition to Joye Carter, ten noted scientists and doctors -- forensic entomologist and pathologists -- have signed affidavits expressing the same conclusion: Trotter's body could have been deposited in the Sam Houston National Forest no earlier than 8 days after Larry Swearingen had been jailed. Because the organs' cell walls were still intact, one of those noted scientists affirmed that the body had been in the forest no more than two days before its discovery.

Sometime after the autopsy, and examination of Trotter's fingernail scrapings revealed some "very tiny, bright red flakes." The flakes had a total size "no bigger than ... a point of a pencil." Given that the flakes were still red, they could not have been exposed to the elements for more than a few days. They tested positive for human blood. DNA testing produced a profile consistent with a male, but inconsistent with Larry Swearingen.

On 6 January, Sergeant Leo Mock dropped by the mobile home park where Swearingen had been living. The landlord had recently cleaned out Swearingen's trailer in order to rent it to another party. Mock searched the trash. He discovered a pair of pantyhose with one leg missing. A forensic specialist would determine that the ligature around Melissa Trotter's neck had been cut from the pantyhose that Mock discovered in the trash outside Swearingen's trailer. Swearingen's trailer and the trailer park, had, however, twice previously been thoroughly searched for any evidence linking Swearingen to Trotter's disappearance. The pantyhose turned up four days after the body had been discovered, only after Larry Swearingen had been in jail for 26 days.

The State and People of Texas are so confident that this string of events points to Larry Swearingen as the murderer that they want to execute him as soon as they can. A jury found Swearingen guilty beyond a reasonable doubt, the appellate courts have found no substantive error in the process whatsoever, and the State sees no reason to delay the execution any longer.

Contrarian that I am, I find the string of events to be exceptionally unlikely, a pathetic excuse for due process, and an immoral basis for an execution.

At the heart of this debate is whether or not Melissa Trotter was murdered before or after Larry Swearingen was jailed. In a subsequent post, I will discuss the means by which the State convinced a jury that Larry Swearingen murdered Melissa Trotter before he was jailed on an unrelated charge. In the remainder of this post, I will discuss the improbability of that claim. One of the most obvious implications of my probability analysis is that Larry Swearingen was framed for the murder of Melissa Trotter, framed by the planting of the pantyhose remnant, and framed by the planting of scraps of her paperwork.

If Larry Swearingen is executed by the State and People of Texas, he certainly won't be the first person to succumb to planted evidence, and I expect he will not be the last.

In the case of Robert Otis Coulson, a federal court agreed that the Houston police planted an envelope on the desk of Coulson's father. The court agreed also that the Harris County prosecutors knew or should have known the envelope was planted. The court agreed also that the prosecutors introduced the planted envelope as inculpatory evidence while convincing the jury to convict Coulson of capital murder. The court declared, however, that the framing was nothing more than a harmless error. Robert Otis Coulson was executed on 25 June 2002.

In the case of Preston Hughes, the courts refused to even consider the multiple fashions in which the Houston police and the Harris County prosecutors knowingly used manufactured evidence to secure a conviction for capital murder. In the next post, I will address just one piece of manufactured evidence in that case: a pair of eyeglasses planted between two sofa cushions. Preston Craig Hughes, III, who was innocent and wrongfully convicted, was executed by the State and People of Texas on 15 November 2012.

In the cases of Coulson and Hughes, the Houston police planted the envelope and the eyeglasses. In the case of Swearingen, the paper scraps and the pantyhose remnant were planted either by the police or by the person who murdered Melissa Trotter. Either way, Swearingen was framed. Either way, the State and People of Texas are responsible for using false evidence to convict an innocent man.

The State's case is that Swearingen picked up Melissa Trotter at the Montgomery College and transported her to his mobile home. There, the two engaged in vaginal sex. At some point, there was a struggle that left Swearingen's home in disarray. Swearingen strangled Trotter with one leg of his wife's pantyhose, put Trotter's body in his truck, drove the body to the Sam Houston National Forest, dumped it there, then returned home.

The State's case makes absolutely no sense. It is statistically unlikely in the extreme. According to the State and People of Texas, Swearingen decided to kill Trotter for some unknown reason. To kill his victim, Swearingen didn't use a firearm, as do 70% of the murderers in this country. Perhaps he didn't own a firearm, or have it at the ready, or feared the noise.

Nor did Swearingen stab his victim to death, as do 13% of the murderers in this country. Surely he had a knife or pair of scissors in his home. He must have had something of the sort if he cut one leg from his wife's pantyhose.

Nor did Swearingen asphyxiate his victim, as do 6.4% of all murderers in this country. There must have been a pillow nearby.

Nor did Swearingen pummel or kick or stomp his victim to death, with his hands or feet, as do 6.2% of murderers in this country. I know that those makeshift weapons were handy.

Nor did Swearingen bludgeon his victim with a blunt object, as do 4.4% of murderers in this country. Surely he had a frying pan or a hammer laying around.

Nor did Swearingen strangle his victim with his bare hands, as do 0.6% of murderers in this country. Once again, I'm confident those makeshift weapons were readily available.

Instead, according to the State, Swearingen elected to manufacture and strangle his victim with a ligature, as do only 0.2% of the murderers in this country. Only 1 in 500 murders is committed by ligature strangulation, and the State's case is even more unlikely than that, more unlikely than 1 in 500.

In a moment of passion and panic, according to the State, Swearingen did not just grab a nearby object to strangle his victim. He did not use any of the victim's clothing, such as a sweater arm, or a brassiere, or a belt. Nor did he use a pillowcase or a lamp cord. According to the State, Swearingen took the time to manufacture a ligature from his wife's pantyhose. Instead of stabbing or cutting his victim with a knife or scissors, he used a knife or scissors to stab or cut his wife's pantyhose. The State offers no explanation why Swearingen would do such a thing in such a frantic moment, nor does it explain what Melissa Trotter may have been doing while Swearingen manufactured the ligature that would be used to kill her.

And still their case is worse than all this. According to the State, Swearingen left the remainder her of his wife's pantyhose behind when he took Melissa's body to Sam Houston National Forest. He presumably removed the body from his home so that his crime would not be discovered, but he left the obvious remnant of the murder weapon behind.

He couldn't have left it behind carelessly or unconsciously. It must have been deliberate, because he hid the remnant of his hastily crafted murder weapon so well that the police were unable to find it on either of two thorough searches. Swearingen hid it so well that it would not be discovered for twenty-six days, in the garbage outside his home, after the police finally knew which murder weapon was used to kill Melissa Trotter.

Assuming I can model all the improbabilities associated with the pantyhose remnant by assuming the police had a 50% chance of discovering the remnant during each search of the trailer, the odds that Swearingen hid the pantyhose remnant well but imperfectly in his trailer are 1 in 8. That number, I suggest, is generous to the State's case. 

Nonetheless, the combined odds of Swearingen using a ligature and hiding the panty hose well but imperfectly are 1 in 4000. (For the statistically challenged and curious, I suggest the Khan Academy. It's an amazing source of free, high-quality, online classes for a wide range of subjects.)

The string of improbabilities in the State's case doesn't end with the use of a ligature and the surprise discovery of the pantyhose remnant. Swearingen allegedly disposed of Melissa Trotter's body so well that the police failed to find it in any one of three searches of the area, even though they came within 20 feet.

Assuming I can model all the improbabilities associated with the police failure to discover the body by assuming a 50% chance of discovery during each search, the odds of not finding the body during any of their three searches are 1 in 8. That number, I suggest, is also generous to the State's case given that they apparently came within 20 feet of the body on at least one search. 

The combined odds of Swearingen using a ligature, and hiding the pantyhose remnant well but imperfectly, and hiding the body well but imperfectly are 1 in 32,000. 

Not only must Swearingen have hidden the body well but imperfectly, he must have done something mysteriously clever to it such that its internal organs decayed so slowly that the medical examiner and ten other experts would be fooled into believing that it had only recently been deposited. On the other hand, there are two experts who maintain that Trotter's body was indeed deposited in the forest before Swearingen was jailed. Dr. Joye Carter is one of them. (She has sworn to diametrically opposite scientific conclusions in the same case, depending upon whichever way the figurative wind was blowing). For simplicity, I assume the odds that all of Swearingen's ten experts are wrong is 1 in 10. Once again, I believe that I am being generous to the State's case.

The combined odds of Swearingen using a ligature, and hiding the pantyhose remnant well but imperfectly, and hiding the body well but imperfectly, and deceiving the 10 defense experts is 1 in 320,000.

The State argued also that Swearingen took some of Trotter's personal papers, tore them to shreds, then disposed of the shreds near his parents' home in such a fashion that they would not be discovered during the first trash pickup after the murder, or the first pickup after his arrest, but would be discovered during the second trash pickup after his arrest. Assuming I can model the probability that the scraps would become exposed during any trash pickup after the murders as 1 in 2, then the odds that the scraps were exposed during the third pickup after the murders is 1 in 8.

The combined odds of Swearingen using a ligature, and hiding the pantyhose remnant well but imperfectly, and hiding the scraps of paper well but imperfectly, and hiding the body well but imperfectly, and deceiving the 10 experts is 1 in 2.5 million, or thereabouts.

And, to add an exceptionally unlikely icing on a highly improbable cake, the State argued that a fresh blood flake belonging to a male other than Larry Swearingen innocently and accidentally found its way underneath one of Melissa Trotter's fingernails. I assume that the State would argue that they contaminate crucial evidence only on rare occasions. I'm confident that they will claim they contaminate fewer than one case in ten, probably fewer than one case in a hundred. I'll therefore assume that the chance an unrelated blood flake ended up beneath Trotter's fingernail to be 1 in 100. I suspect that the State, in this case, would claim the odds are even lower.

The final combined odds of Swearingen using a ligature, and hiding the pantyhose remnant well but imperfectly, and hiding the scraps of paper well but not perfectly, and hiding the body well but imperfectly, and having 10 defense experts sign scientifically unsound affidavits, and having an unrelated blood flake land beneath Trotter's fingernails is one in 250 million, one in a quarter billion, or thereabouts.

I acknowledge that my combined probability of all the events is no better than the individual probabilities that I assigned to each event. While I believe each of those individual probabilities were generous to the State's case, I'm confident that readers convinced of Swearingen's guilt would disagree. 

Regardless of the numbers assigned, the State's case presumes a long string of improbable events. I assigned probability numbers to each event to provide some sense of how unlikely the entire string might be.

If just one of those events did not occur as claimed by the State and People of Texas, then Larry Swearingen was framed for the murder of Melissa Trotter.


Gregory Skomaroske said...

The United States Government and the police agencies around the entire country are allowed to fabricate andmanufacture evidence as they see fit by the Dept. of Justice and the FBI who almost never hold aany of these criminals responsible. OUR GOVERNMENT IS NOT A LIGETIMATE GOVERNMENT AND IT'S EMPLOYEES ARE CRIMINALS FROM THE POLICE TO THE ATTORNYE GENERALS TO THE FBI TO THE JUGES. THESE ARE CLEARLY THE FACTS MORE OFTEN THAN NOT!

tsj said...


It's clear that you are frustrated with our government, as am I. To be clear, though, I do not believe our government is illegitimate, nor do I believe that every law enforcement agency is fundamentally corrupt. I do believe that we have serious problems within our justice system, and I am attempting to correct some of them.

Good luck to you.

Kelly said...

Did you ever get a chance to read the jailhouse spanish letter Swearingen wrote? Supposedly he knew details of the crime that had been withheld. Your analysis is great, but if he basically confessed to the crime in that letter and knew details of it only the killer would know.....

tsj said...

The supposed "evidence that had been withheld" was part of the autopsy report. I presume that report was provided to the defense as part of the discovery process.

Here are two more of my rules of thumb.

1. When the State claims that the defendant has inside knowledge of the crime, the State has usually provided it to him beforehand, intentionally or unintentionally.

2. When the State claims that an innocent person has inside knowledge of the crime, The State has absolutely provided to him beforehand.

"Inside information" is usually weak evidence presented as compelling evidence. If the defendant has inside information, he must be guilty. Accept the premise, and the conclusion follows.

The State, however, is not so eager to accept a premise when the unavoidable conclusion points to the defendant's innocence. No one denies that the State found a fleck of blood under one of Melissa Trotter's fingernails, and no one denies that the blood came from someone other than Larry Swearingen. The obvious conclusion is that the blood belonged to the killer. Texas couldn't prove that the blood was contamination, so they merely presumed it was.

DNA is pretty good evidence. They rejected it. "Inside knowledge" is pretty weak evidence. They promoted it.

Georgianna Bechtle said...

This is a really great series glad I stumbled on to it. Like you, I believe that the criminal justice system is flawed but not broken. Texas however for whatever reason,seems to be far worse than the rest of the country. In my opinion their courts need drastic changes before they are allowed to mete out the ultimate punishment to its citizens

Anonymous said...

Oh please. Larry Swearingen is guilty. Plain and simple.

Melissa and Larry left the library together that afternoon. She has not been seen since.

Later, during the evening of December 8, Swearingen called a former girlfriend named Phyllis Morrison and told her that he was in trouble. He said the police might be after him. Why would the police be "after him"... and why would he even think that UNLESS he was feeling very guilty and paranoid about the crime he just committed.

Fibers were removed from Melissa’s body. These fibers were similar to fibers found on Swearingen’s jacket, on the seat and headliner in his truck, and on the carpet in the master bedroom of his trailer. Fibers found in Swearingen’s truck were also similar to fibers found on Melissa’s jacket.

I could go on... but do I need to? He's guilty. Plain and simple.

j said...

The trial court stayed the execution date and granted a motion for additional dna testing. This request was made solely to delay the sentence from being carried out. Now the TCCA has reversed and remanded the case back to the trial court. But until this loony judge, who has already been reversed on numerous cases and has given no indication that he will follow the law, has been voted or removed from office, nothing will happen. Luckily, he declined to run for re-election so he shd be gone by the end of the year. Good riddance!

Unknown said...
This comment has been removed by the author.
Unknown said...
This comment has been removed by the author.
Harley Rose said...

Swearingen was possibly referring to the traffic warrants when he told his friend about the police being "after him". Let's not forget that he was actually arrested for these. Also, the fibers only prove that Melissa had been in his truck. They provide no real evidence of a crime. How do we focus on all THESE pieces of "evidence" and completely avoid the pieces that point to a time of death well after Swearingen was incarcerated? I would like to know what constitutes reasonable doubt in Texas! The defense did a horrible job in the original trial, so I somewhat understand the jury's verdict but after the back and forth with Dr. Carter and everything else that has come out, there is more than enough doubt in this case.

Post a Comment