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.

2 comments:

Akila Alika said...

while the evidence you show does overwhelmingly point to his innocence - my thought was to look at other facets
I am neither a supporter nor an opposer of the death penalty - just want to objectively review all the details

Again googling brought me to the URL:
http://murderpedia.org/male.S/s/swearingen-larry.htm

Quote
'Swearingen wrote a letter to his mother in Spanish purporting to be from a female who implicated her boyfriend was the murderer. At trial, the state proved the letter was written in Swearingen’s handwriting'
Unquote

So is this hearsay or again evidence being conjured ?
Thanks for trying to save innocent people - but if you could also help refute such and other damaging charges or present the negatives as well - it would give a 360 view

Again I do not mean to offend and this takes nothing away from all your good work
Akila

tsj said...

Akila,
I'm certainly not offended by your observations or questions. I appreciate the discussion.

In The Framing of Larry Swearingen Part 1, I summarized the evidence against him, including the proof-of-innocence letter he clumsily fabricated. The State of Texas used that as evidence of his guilt and I presume the jury accepted it as such. As a juror, I would ignore that evidence.

Perhaps Swearingen realized he was being set up for a murder he did not commit. Perhaps he realized that he was being framed. He therefore came up with his stupid idea, and even decided to write the letter in a language he was not familiar with. That would certainly be evidence of his stupidity, but it would not necessarily be evidence of his guilt.

I'm not shocked that people arrested for serious crimes attempt to convince the police that they are innocent, even if they are innocent. They have more reason than most to suspect the integrity of our justice system.

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