The Impending Execution of Manuel Valle

Manuel Valle sits on death row awaiting execution by the people of Florida. I present below the summary of his case as provided in a Florida Supreme Court appellate decision.

On April 2, 1978, Officer Louis Pena of the Coral Gables Police Department was on patrol when he stopped appellant and a companion for a traffic violation. The events that followed were witnessed by Officer Gary Spell, also of the Coral Gables Police Department. Officer Spell testified that when he arrived at the scene, appellant was sitting in the patrol car with Officer Pena. Shortly thereafter, Spell heard Pena use his radio to run a license check on the car appellant was driving. According to Spell, appellant then walked back to his car and reached into it, approached Officer Pena and fired a single shot at him, which resulted in his death. Appellant also fired two shots at Spell and then fled. He was picked up two days later in Deerfield Beach. Following his jury trial, appellant was also found guilty of the attempted first-degree murder of Spell and after a non-jury trial, he was found guilty of possession of a firearm by a convicted felon.

We know that Valle also confessed to murdering Office Spell Pena, since his appeal included a claim that his confession was obtained in violation of Miranda. The Supreme Court disagreed.

I find no one claiming that Manuel Valle is factually innocent.

While I oppose the execution of any person that might be factually innocent of the crime for which he is to die, I take no position on the execution of people who are undoubtedly guilty. With respect to the propriety of Manuel Valle's execution, I stand mute.

Note: Martin Manuel Valle's execution is currently on hold. The earliest date he can  be executed is now 7 September.

The Absolutely Astounding Case of Larry Swearingen: Part 4

Somewhere I said that this was going to be a three part series. It won't be the first time I was wrong. Parts 1, 2, and 3 are here, here, and here. Those of you unfamiliar with the case should read those posts. The rest of us will wait here.

Welcome back. We had tea and crumpets while you were gone. Sorry we didn't save any for you.

After Larry Swearingen was convicted of murdering Melissa Trotter, based on overwhelming circumstantial evidence, ...

And after Swearingen had spent a decade or so in prison, ...

And after Dr. G.M. Larkin had published an unofficial addendum to the State's autopsy report, and therein proved beyond doubt that Swearingen must be factually innocent, ...

And after Dr. Joye Carter, the original medical examiner, agreed with Dr. Larkin that she had been wrong and Swearingen is without doubt factually innocent, ....

Then an acting medical examiner of the jurisdiction chimed in. He too agreed that Larry Swearingen is without doubt factually innocent. Here we go.

STATEMENT OF LLOYD WHITE. M.D.

My name is Dr. Lloyd White. I am a physician licensed to practice medicine in the State of Texas. I am boarded in pathology and specialize in forensic pathology. I was the Chief Medical Examiner for Nueces County, Texas. I am presently a Deputy Medical Examiner for Tarrant County, Texas. ...

I have reviewed the report of the autopsy of the body of Melissa Trotter conducted on January 3,1999, by then Harris County Medical Examiner, Joye M. Carter, M.D. I have reviewed autopsy and crime scene photos depicting the body of Ms. Trotter. ... I have also reviewed Ms. Trotter's Medical Records dated November 23,1998, and the October 1, 2007, addendum report of Dr. Gerald Larkin, as well as the October 31, 2007 affidavit of Dr. Joye M. Carter regarding autopsy findings in Ms. Trotter's case. The following opinion is based on the foregoing information:

1. I concur with the conclusions that Dr. Carter reached in her October 31, 2007 re-evaluation of her autopsy findings. As she indicates throughout her affidavit, findings made pursuant to her internal examination of the body support the forensic conclusion that Melissa Trotter's body was left in the woods within fourteen days of the discovery of the body on January 2, 1999, in the Sam Houston National Forest.

2. I agree, as well, with Dr. Larkin's conclusion that the forensic evidence in this case indicates that the body was in the Sam Houston National Forest for a shorter period than fourteen days. For reasons set forth by Dr. Larkin in his October l, 2007 addendum, the description of internal organs -- the pancreas, liver, spleen, gall bladder and gastro-intestinal tract -- indicate that the body was left in the woods at on or about December 23, 1998 at the soonest, and probably left there no sooner than December 27 or 28, l999.

3. Again, for reasons that Dr. Larkin gives in his October 1, 2007 addendum, the external appearance of the body also supports the conclusion that Ms. Trotter's body was exposed in the wood for several days only, and not for two or three weeks; so does the remarkable fact that Trotter weighed 109 pounds at her doctor's office according to the November 23, 1998 record, while her clothed body weighed 113 pounds at autopsy and the nude weight was 105 pounds.

4. In addition to the written findings Dr. Carter made, autopsy photos of several organs deserve attention.

a. Attached as exhibit 'A' is the photograph of the spleen Dr. Carter removed during autopsy. The spleen is an organ that contains many vascular spaces. The spleen can contract and enlarge, but is a relatively firm, spongy organ when living. It performs the important physiological function of removing red blood cells that are old or damaged and essentially worn out. After death the spleen autolyzes rapidly.

The spleen removed from Trotter has been dissected and there is a longitudinal incision through the spleen's capsular surface ... The edges of the incision are sharp. Autolysis appears to be minimal. The photograph of the spleen has the appearance of splenic tissue taken from a recently deceased individual. The spleen obviously has not liquefied and disintegrated as is typical in individuals who have been dead for several days.

b. Photographs of Trotter's heart show that the muscle is still red and relatively fresh looking. There are several long incisions and several shorter ones. The edges of the incisions are sharp. ... Again, the appearance of the heart is what one would expect to find upon autopsy of a recently deceased individual.

5. Autopsy photos of internal organs are consistent with the description of organs and the degree of decomposition found in the autopsy report. The photographic evidence strongly supports the conclusion that Ms. Trotter's body was left in the woods at least one week after Mr. Swearingen was incarcerated on December 11, 1998, and probably more than two weeks after.

I find Dr. Lloyd White to be particularly insightful. That's because in a follow-up report, he addressed the issue of the stomach contents that are so near and dear to my heart. It was Dr. Carter's testimony regarding the stomach contents that caused me to decide, as a vicarious skeptical juror, that Larry Swearingen must have been innocent. Here's what the esteemed and learned Dr. Lloyd White had to say about the stomach contents.

In bodies that have been exposed for more than several days under conditions in which Ms. Trotter's body was found, the stomach wall autolyzes [eats itself] and perforates, causing the contents to spill into the surrounding peritoneal space. This is because the stomach contains digestive juices one of which is hydrochloric acid. Upon death, when the tissues of the stomach are no longer producing protective secretions, these juices -- gastric enzymes and acids -- rapidly eat away the stomach wall causing the organ to disintegrate. Even in living persons, the gastric wall will perforate in a similar manner if subjected to an episode of ischemia [insufficient supply of blood]. ...

The State and the courts have argued that the Dr. Carter's findings upon dissecting the stomach support the State's theory that Ms. Trotter died at least twenty two days and as much as twenty-five days before her body was found. According to both the State and the courts, the stomach contents contained the remnants of a meal that Ms. Trotter ate either at the College Campus or at McDonald's restaurant on the day she disappeared. These allegations have always been, and remain, pure speculation unsupported by any of the facts in evidence.

Autopsy photographs of the stomach show chyme mixed with some bloody fluid that is probably due to the dissection. The description Dr. Carter gave at trial of the stomach contents is consistent with the ingestion of a wide variety of foodstuffs commonly served at home and at numerous institutions. Dr. Carter described pieces of white meat, some green vegetable material, and some white material that she thought might have been from a potato. Dr. Carter was unable to say what animal the white meat was from or what plant was the source of the green substance. There is, in fact, nothing at all about the stomach contents to suggest, much less conclude beyond reasonable doubt, that Ms. Trotter's body was exposed in the Sam Houston National Forest for more than two or three days.

Now that's high quality forensic medicine in action.

Then the chief medical examiner of Galveston County, Dr. Stephen Pustilnik, weighed in. He agreed with Drs. Larkin, Carter, and White that no way, no how could Melissa Trotter have been dead very long prior to the discovery of her body.  Dr. Pustilnik also addressed a Hail Mary pass being offered up by the State: the possibility that Melissa's body had been refrigerated for some reason by an accomplice.

In summary, without prior refrigeration, the deceased was killed within reasonable certainty five to seven days prior to her discovery. ... In addition, the absence of mummification and dessication to the ears, as well as to the fingertips, is consistent with their not having been prior prolonged refrigeration of the deceased.

Given the now overwhelming, incontrovertible [dare I say] proof of Larry Swearingen's innocence, a number of substantial issues arise. I'll discuss only a few of them here.

First, Dr. Joye Carter clearly tailored her testimony to conform with the State's theory of the case. She selected the 25 day post mortem interval not because of the science for which she was responsible, but because it corresponded with the date Swearingen was last seen with the victim. She described the stomach contents not based on her examination, but based on what she had been told about the victim's alleged last meal. She was presented as an expert with no dog in the hunt, but that representation was far from the mark. She compromised her intellectual integrity to satisfy the State.

Unfortunately, such inexpert testimony is all too common, on both sides.  It is extremely rare, however, when the expert will admit to his or her error. I therefore again congratulate Dr. Carter for her effort to correct a terrible injustice. However, I note again that she cheapened her that effort by not accepting responsibility for her mistakes. She blamed the attorneys and parties unknown.

Second, the case shows the danger of target fixation. The State had their man and no amount of evidence would deter them gaining a conviction. So convinced were they in their righteous indignation that they simply assigned no significance to the sudden appearance of Melissa Trotter's body. Though they had searched the area three times previous, without sight nor smell of the body, and though even to a lay person the body could not have appeared to be a month dead, they simply pressed on. They apparently did not even interview the searchers to determined if any had looked specifically in the spot where the body was found.

Third, the case shows that hair evidence experts are not. As if frequently the case, the hair matching evidence in this case sucked. Recall that the State claimed to have recovered two of Trotter's hairs from Swearingen's vehicle and claimed further they could tell the hairs were forcibly removed. [Deep sigh.]

Forth, someone planted evidence at Swearingen's residence. Recall that Trotter was strangled with one leg from a pair of pantyhose. Recall also that the other leg of pantyhose was found at the Swearingen's trailer. That's pretty damning evidence. As a juror, that would have for me been the most damning piece of evidence. Take note, though, that the other leg of the pantyhose was not found until the third search of Swearingen's trailer. The damning evidence showed up suddenly, just as the body did. The police searched and searched and found nothing. The suddenly, viola, just what they were looking for.

More specifically, after the third search of Swearingen's trailer, the police said they were given the other leg by the landlord, who found it while cleaning up the mobile home. Yet another expert [and I must now use that term quite loosely] identified the leg as a positive match to the one tied around Trotter's throat.

This case, I'm sad to say, is not all that unique with respect to its over-the-top confirmation bias. What is unique is that such incontrovertible evidence of innocence (other than DNA) surfaced after the conviction.

And still I'm not done with this three four five part series. The people of Texas still want very much to execute Larry Ray Swearingen. We'll talk about that next, and maybe wrap up this sordid tale.

Assuming we don't care if we execute yet another innocent person.

Part 5 is now available.

The Absloutely Astounding Case of Larry Swearingen: Part 3

The people of Texas nearly put Larry Swearingen to death this month for the kidnapping, attempted rape, and actual murder of Melissa Trotter.

In Part 1, I laid out the (nearly) overwhelming case against him. In Part 2, I provided further evidence of his moral turpitude. Then I explained why I would have voted Not Guilty, and fought hard to convince my fellow jurors to agree with me.

You should read those parts first if you are to understand this final post of the series. Part 1 will lead you to Part 2 which will lead you back here. I'll wait.

Welcome back.  While you were gone, I was singing Infinity Bottles of Beer on the Wall.  %% Take one down, pass it around, infinity bottles of beer on the wall. %%

The issue that caused me great trouble as a vicarious juror was that the ME, Chief Medical Examiner Joye M. Carter, M.D., FCAP, testified that the body had been dead approximately 25 days before it was discovered on January 2. That coincidentally (I'm sure) placed the approximate date of death on December 8, the day that Larry Swearingen was seen with her, the day he had a date with her.

That bothered me a little.

The ME also testified that "Trotter's stomach contained not only what appeared to be a form of potato, but also what appeared to be chicken and a small amount of greenish vegetable material."

That bothered me a lot. I don't believe it is close to possible that the food would have been preserved for 25 days. I think that means she was killed not too long before she was found. Since Larry Swearingen was arrested on 11 December on unrelated charges, I concluded he couldn't have killed her.

It's now time to see if I screwed up.

Almost 10 years after the ME wrote her autopsy report, Dr. G.M. Larkin (of North Carolina, not Texas) prepared an addendum to the ME's autopsy report. Dr. Larkin's work has no particular legal standing. We consider it here for its scientific insight. Dr. Larkin made 21 points. I repeat or paraphrase them below.

1. Because Mr. Swearingen was incarcerated on December 11 and has remained in prison thereafter, the following forensic conclusion not only is supportable, it cannot be reasonably questioned , Someone else, not Mr. Swearingen, left the body of Ms. Trotter in the Sam Houston National Forest where it was found on January 2.
2. December 23, 2007, is the soonest that Trotter's body could have been left in the woods, which is to say 12 days after Mr. Swearingen was incarcerated. ... Indeed, undisputed forensic evidence, namely the external appearance and the description of the internal organs and tissues, and photographs of resected organs strongly support a date as late as ... nineteen days after Mr. Swearingen was incarcerated and three weeks later than the date the State maintains Trotter's body was left in the Sam Houston National Forest.
3. (In arriving at my conclusions, I have considered the weather.)
4. All pathologic diagnoses are based on the fact that changes in death are predictable, cumulative and irreversible. Changes are additive. (Also, I have  accounted for the weather.)
5. (I have accounted for the weather.)
6. Dr. Carter's description of specific internal organs is sufficient to establish with certainty that Trotter's body was not left exposed in the woods until well after December 11, the date Swearingen was incarcerated.
7. If Trotter was killed in the woods or her body left in the woods near the time of death, the pancreas would not have been present in the condition described by Dr. Carter unless exposure in the Sam Houston Forest occurred after December 28.
8. Pancreatic cells produces digestive enzymes. upon death, metabolic processes that prevent the enzymes from acting on the pancreas' own tissue cells. Liquefaction of the pancreas to the point it looses internal structure and becomes a sludge incapable of being sectioned consequently may occur within 24 to 48 hours even under hospital or morgue conditions where the environment and temperature are controlled.
9. The condition of Trotter's spleen at autopsy supports the conclusion that Trotter's body was not exposed in the forest until well after Mr . Swearingen was incarcerated. Like the pancreas, the spleen autolyzes [digests itself] relatively rapidly even under hospital and morgue conditions. The autopsy report's description of the spleen, however, fits that of tissue from a recently deceased person. The ... organ has the appearance of tissue from a recently (3-4 days) deceased person.
10. Dr. Carter's examination of the liver is remarkable evidence that Trotter's body had not been in the woods for more than ten days and in all probability for far less time. The liver is a large organ that loses integrity and autolyzes [digests itself] relatively rapidly, forming gas bubbles as it does, which makes it crepitant, a bit like bubble wrap. However, Dr. Carter was able to remove the liver and section it, using essentially the same methods used upon the pancreas. Microscopic examination failed to reveal perforations due to gas bubbles ...
11. Dr. Carter's examination of the gastrointestinal tract strongly confirms the conclusion that Trotter's body was exposed ... for ten days or less. Dr. Carter found the esophagus intact. She dissected the stomach, and was able to rinse and examine the gastric mucosa. Dr. Carter also found both the large and small intestines intact and un-perforated. Further, the mucosal lining of the intestines was still present at autopsy.
12. Mucosa is a fragile tissue that readily decomposes under temperature conditions such as those reported ... The gastric mucosa and intestinal mucosa do not decompose in a living organism due to the protective enzymes that these tissues secret while functioning. After death, these tissues quickly disintegrate. In Trotter's case, the conditions in which the mucosa were preserved allowed Dr. Carter to identify them, examine them for pathology, and subject them to mechanical processes such as dissection and rinsing. It is a medical certainty, that these tissues would not have retained the integrity seen at autopsy unless the body had been left ... less than ten days prior to the date of recovery. Indeed, it is very unlikely that Dr. Carter would have found these tissues in the condition described at autopsy unless the body had only been exposed in the woods for substantially less time -- a matter of 3 to 4 days. ...
13. Dr Carter found that the breast tissue was "firm and intact." She was able to remove breast tissue, section it serially and examine it for pathology. The condition of this tissue corroborates conclusions that follow from Dr. Carter's description of internal organs.
14. Dr. Carter's descriptions ... and photographs depicting the external appearance of the body also supports the conclusion that Trotter's body was in the Sam Houston National Forest no more than ten days at the very longest. ...
15. Furthermore, crime scene reports indicate that the body did not have an odor even though daily high temperatures from December 29, 1998 through January 2, 1999 consistently approached 70 degrees Fahrenheit and average temperatures were near 60°.
16. Dr. Carter's ... reported that the weight of the body clothed was 113 lbs while the nude body was 105 lbs. Medical records show that approximately two weeks before December 8, 1998, Trotter weighed 109 pounds at her doctor's office. The weights are remarkable in that they demonstrate very insubstantial or no loss in body weight, Even if a corpse is not scavenged, and there was remarkably little scavenging in this case, a body will lose up to 90% of its weight, in less time than 25 days, when exposed under temperature conditions prevailing in the Conroe area ...
17. Dr. Carter states that the brain was in a semi-liquid state, and states further, that upon removal, there was complete loss of normal tissue architecture. However, the report shows that the brain retained sufficient integrity even upon removal to enable Dr. Carter to make judgments regarding the presence or absence of subdural and subarachnoid hematomas. Dr. Carter was also able to examine the parenchyma and exclude preexisting lesions. Her report indicates, too, that the ventricles were discernible and normal in appearance.
18. Under conditions prevailing in the Conroe area were the body was found, the brain in this case would have completely liquefied in a matter of days. If Trotter's body had been placed in the woods as late as December 23, 1998, Dr. Carter would not have been able to remove the brain for examination; it would have been a soup incapable of being examined for lesions or abnormalities. ...
19. Positive findings by autopsy establish that Trotter's body was not left exposed ... until December 23, 1998, at the very earliest. Besides positive findings, the absence of expected decompositional changes indicates exposure well after the date on which Mr. Swearingen was incarcerated. Bloating, for example, normally occurs after two or three days. It distorts breast and genital tissues, causing them to inflate grossly out of proportion. It also causes perforation of the stomach and intestines. However, Trotter's body did not exhibit any of the distorting changes caused by bloating and her gut was intact.
20. In wilderness areas ... considerable scavenging by birds and mammals take place, but the body from the neck down did not exhibit any insults that could clearly be attributable to animal activity even though crime scene photos show that the body was found with torso exposed, as were the upper extremities, which again, did not exhibit any scavenging at all.
21. The following forensic conclusion is therefore not reasonably debatable amongst competent forensic pathologists: Without question, Mr. Swearingen was not the person who left Ms. Trotter's body in the Sam Houston National Forest.

In summary, Dr. Larkin claims the following features of Mellissa Trotter's corpse preclude any possibility that she was killed earlier than December 23, 12 days after Swearingen had been incarcerated:

• Pancreas had not liquefied
• Spleen had not autolyzed (digested itself)
• Liver had not been perforated by its own bubbles
• Lining of gastrointestinal tract still retained its integrity
• Breast tissue still firm and intact
• Body has lost only 4% (not 90%) of its weight!!
• Brain was not liquified
• Body showed no signs of bloating; it did not smell
• Body not scavenged by animals, though torso and arms exposed 

Dr. Larkin then all but dares any reputable forensic pathologist to challenge his conclusion that Melissa Trotter was killed after Larry Swearingen was incarcerated. While I'm distressed that he did not mention anything about the stomach contents, I'm unwilling to dispute him.

So too was the original pathologist, Dr. Joye Carter. She had, by the time Dr. Larkin wrote his addendum to her autopsy report, moved on to become the Chief Forensic Pathologist for Marion County, Indiana. She actually prepared an affidavit agreeing with Dr. Larkin that she had incorrectly placed the date of death way too early. I include a few segments from her affidavit below.

At trial in Mr. Swearingen's case I was asked if I had formed an opinion about the date of death in this case. Review of my trial testimony shows that I testified that I had formed an opinion that the date of death was 25 days prior to disappearance. As reflected in my testimony, this opinion was based primarily on the external appearance of the body. ...

Review of my trial 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. ...

For the purpose of making this statement, I have reviewed ... several pieces of forensically important information that ... were not made available to during trial or pretrial proceedings. This information includes ... medical records giving Melissa Trotter's weight before she was reported missing ...

The medical record shows that Ms. Trotter weight 109 pounds at her doctor's office on November 23, 1998, two weeks before the date she was reported missing. ...

The forensic opinions, herein, address the significance of autopsy findings made during the internal examination 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 and defense had asked me to address the significance of findings made pursuant to the internal examination of Ms. Trotter's body. ...

... 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 know to autolyze [self-digest] quickly. At room temperature, it is not unusual for these organs to liquefy within days. ... These internal findings support a forensic opinion that the body had not been exposed more than two weeks in the forest environment.

... The gastrointestinal system was found intact. Furthermore, gastric mucosa, a fragile tissue which decomposes quickly, was still present and was rinsed and described.  ...

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 ... and supports a forensic opinion that Ms. Trotter's body was left in the woods within two weeks of the date of discovery.Well that certainly wasn't easy for her to write. I give her enormous credit for attempting to correct a grievous error, but I give her a low score for her efforts to explain away the error. She blamed the prosecutor and the defense attorney and everyone else as well for not telling her about Trotter's weight. (Assuming the body loses about 90% of its weight in 25 days, perhaps she believed Trotter weight 1050 pounds before she was killed.)

Well, that certainly wasn't easy for her to write. I give her tremendous credit for attempting to correct a grievous error. I give her substantially less credit for her efforts to put the blame on the attorneys for not asking the right questions, or for all the anonymous people who failed to tell her about Trotter's pre-death body weight of 109 pounds. Given that a body can lose 90% of its weight in 25 days, perhaps Dr. Carter believed Melissa Trotter weighed 1050 pounds just before she was killed.

Dr. Carter also claimed she was asked only about the external condition of the body. No way, I say. I remember specifically that she testified about the stomach contents, and I'm pretty sure that those are on the inside. And by the way, if the body loses 90% of its weight in 25 days, I'm guessing the stomach contents lose at least that much. In other words, I'm going to claim my suspicion about the stomach contents was correct.

We're not yet done with the case of Larry Swearingen. We still need to discuss why the people of Texas intended to execute him, even though it's now clear he could not have killed Melissa Trotter.

Stay tuned.

Part 4 is now available

Scenes from The Speedfather

Embedded below is a pre-release clip from the upcoming movie The Speedfather.

The Speedfather is a true story of government, corporate, and judicial corruption organized not around gambling, prostitution, or drugs, but around the more profitable business of traffic ticket shakedowns in Maryland.

The Speedfather stars the Optotraffic DLS-10S automated speed enforcer as The Speedfather. The city governments and the courts play the well-rewarded henchmen. Will Foreman plays the naive fool who dares challenge the system.

In this scene, Will makes an appearance in court to fight 15 of the 60 tickets he has been ordered to pay by The Speedfather. Will has the two photos the law says must be accompanied by every ticket. Will has the citation itself signed by a police officer certifying the photos prove Will was speeding, though they clearly do not. Will intends to show that if you overlay the two photos, taken at slightly different times, the photos in fact prove that he was not speeding.

Will intends to discredit The Speedfather and thereby bring the entire bunko scheme to its knees.

And without further adieu, I bring you the soon-to-be-released trailer for The Speedfather.

The carnage you see in the closing moments is the Maryland justice system.

The Absolutely Astounding Case of Larry Swearingen: Part 2

Larry Swearingen was within weeks of being executed by the people of Texas for the kidnapping / rape / murder of Melissa Trotter. The evidence against him is seemingly overwhelming. Nonetheless, I claim that, had I been on his jury, I would have (hopefully) voted Not Guilty.

To understand what follows in the post, and the one remaining post in the series (when it's up), you really should read the initial post. I'll make it easy for you. Just click on the hypertext button below, it will take you to the initial post, and at the end of that post, there will be another hypertext button to bring you back here. It will be easy, convenient, and well worth your time.  I'll wait here.

Part 1

[Killing time, he said inappropriately.]

Okay. You're back.  Let's continue. 

In this post, I'm going to cause you to dislike Larry Swearingen more than you already do. Then I'm going to tell you why I would have (hopefully) voted not guilty. In the next post, you'll find out whether or not my hunch was right.

Court TV did an multi-part series on Larry Swearingen. As part of that series, they summarized his abusive treatment of women prior to the case of Melissa Trotter.  I found the summary on the Charles Smith Blog. I repeat it below.

But Swearingen says the drugs had an adverse effect on his relationship with his family and his commitment to school. By his junior year, his girlfriend was pregnant with his son. He dropped out of school to work various odd jobs.

The relationship did not last, and shortly after his son's birth in 1990, Swearingen married a woman who later gave birth to their daughter.

But the relationship quickly soured as Swearingen's violent streak emerged, according to the woman.

"[Swearingen] would wait for her at the door of their home and when she arrived he would begin hitting her, and sometimes strangled her with hands," court documents state.

After the two separated in 1992, according to the woman, Swearingen showed up at her job and harassed her. During Swearingen's penalty phase, the woman testified that she never reported the incidents for fear of losing custody of her daughter.

In one instance, Swearingen allegedly abducted her at knifepoint and drove her to a wooded area, where he raped her.

Another ex-girlfriend testified at his sentencing that she met him in 1994 at a Florida strip club and moved back with him to Texas. When she told him she planned to leave for California, he tied her up and threw her in a closet, she said.

He then allegedly beat and threatened her with a knife as both her child and Swearingen's son played in the yard.

The woman testified that he freed her when his mother arrived. She fled the state and did not return to press charges or tell her story until her appearance at Swearingen's sentencing.

Less than three months before 18-year-old Melissa Trotter disappeared, another ex-fiancée complained to police that Swearingen had assaulted and raped her.

According to court documents, Swearingen allegedly broke into her home, wrestled her to the ground, stuffed her mouth with newspaper and handcuffed her before beating and raping her.

One week later, the woman testified, Swearingen fired a bullet through her window and forced her into his car at gunpoint.

"[Swearingen] made [her] drive to a location within the Sam Houston National Forest that was approximately one mile from where Melissa's body would someday be discovered," court documents state. "She was able to appease Swearingen, and he eventually let her go."

Swearingen was arrested on the allegations and released on bond.

That ought to do it. Not only does the evidence make him look guilty as hell, his history of abusing women reinforces the certainty of his guilt. Also, it turns him into an utterly despicable character that we don't have to feel sorry for when we send him off to death row. Who in their right mind would consider releasing such a person back into society? Who would not be compelled to vote Guilty?

I assure you it can be no fun trying to fulfill your juror's oath under such a circumstance. I argue, however, that if you believe the State has not proved its case beyond a reasonable doubt, you have a moral and constitutional obligation to vote Not Guilty. You must do so even if you believe the defendant might be guilty; even if you believe the defendant is a sleazeball.

I'm not naive. I know I'm in the minority. I know from experience how people behave behind the jury room door. On this point, though, I will not budge. If you are a prosecutor and you impanel me on the jury, and you have me take an oath, you had better prove your case to me beyond a reasonable doubt. If you do not, I will not save you. I will vote Not Guilty. I will attempt to convince my fellow jurors to vote Not Guilty. And, if I cannot compel all of them, I will hang the jury.

Furthermore  ....

If I believe the defendant is factually innocent, I might actually volunteer to assist the defense in the retrial, assuming the State decides to re-try him, which they will. I've been known to do that.

So what's my beef with the State's case in the trial of Larry Swearingen? I guess it's time to come clean.

I'm really bothered by the testimony of the medical examiner. First thing that hit me was that the ME estimated the time of death as approximately 25 days prior to discovery.  That's a bit too convenient and a bit too cozy. Trotter was last seen with Larry Swearingen on December 8. Her body was discovered on January 2. That's 25 days. That's coincidently the same number of days the ME testified to, while cautioning us that it was an approximate number. (I'm inferring this from the appellate decision.)

When someone has been dead for about a month, establishing time of death to a specific day is not possible. A less biased estimation would have been "about a month."  That still would have made it possible that Swearingen had murdered Trotter, and it has the added benefit of being intellectually honest. Assuming the ME instead said "approximately 25 days" (as indicated by the appellate decision), that's a red flag to me. It tells me that the ME is willing to tailor her testimony to match the prosecution theory. It tells me I can't trust her to tell me the unvarnished truth. I don't like that.

That alone certainly would not make me believe that Larry Swearingen might be innocent. I concluded he was innocent because of something else the ME testified about. The ME testified that "Trotter's stomach contained not only what appeared to be a form of potato, but also what appeared to be chicken and a small amount of greenish vegetable material."

Uh, oh.

I realize most people believe that is evidence of Swearingen's guilt. After all, Trotter was killed before she could digest her last meal, and she met with Swearingen after 1:30 PM on December 8 when he bought some tater-tots, and the ME probably saw the remains of the tater-tots. That's why the prosecution brought it up. The jury bought it hook, line and tater tot.

I certainly could be wrong on this but I don't believe that stomach contents are going to be recognizable 25 days postmortem, assuming any contents remain at all.

Try this. Throw a few tater-tots in the woods, and some chicken, and maybe some greenish vegetable material, and come back in 25 days. Do you think you'll find anything recognizable? Do you think you'll find anything at all?  I don't.

Perhaps, you may claim, the body actually protected the food from decaying. As a lay jury person, I would disagree. The stomach is not designed for food preservation or long term storage. It's not a tupperware container. It's a garbage disposal. It is designed to accelerate the decay of food. The stomach is a place of vicious acids and conspiring enzymes that won't go away simply because someone dies. Not only that, the body itself will decay substantially by 25 days postmortem, if left exposed and unrefrigerated. The same microbes that are consuming the body are not likely to eat around the food in the stomach.

As a juror, I would have disagreed with the ME. I would have concluded that Melissa Trotter did not die sometime near December 8. I would have concluded she died much closer to January 2 than December 8. Then I would have become even more troubled by the ME's approximate but convenient 25 day estimate, and dismissed her completely as an untrustworthy witness, one more eager to do the State's bidding than to tell me the truth.

And then I would have argued to my fellow jurors that they should remember that the body was not discovered during the first three searches of the area, though the searchers had come within 20 feet of the spot she was eventually found. I would have stood at one end of the jury room and pointed to the far end, and then I might have said:

"That's about 20 feet. Now, if I'm a searcher, I assume I have another searcher on my left and another on my right, and we are spaced apart such that nothing will pass between us unnoticed. If there are bushes there, we'll peak in the bushes. If there's a tree, we'll look all around the tree. Heck, we'll even look up the tree. Now Texas is asking us to believe they searched the area not just once, not just twice, but three times and they never saw the body?  I'll tell you why they never say the body. Because it wasn't there. There was no body at that point. Melissa was still alive. She wouldn't be dead until later, until sometime shortly before the New Year."

"If they want me to believe the body was there during the three searches, they should have brought the searchers in to testify. I want to know how far apart they were spread. Was it 10 feet, 20 feet, 40 feet? They would have us believe it was 40 feet, wouldn't they, since the searchers allegedly came no closer than 20 feet to where she was found. That seems pretty far apart for a search team?"

"Why didn't they bring in the six searchers to testify? There could have been as many as six searchers who passed within 20 feet or so. It could have been one searcher passed on each side of the spot, two searchers per search, three searches, six searchers total. And no one saw, or smelled, a decaying body? Everyone coincidentally walked around the body, three times in a row?"

"They could have asked each of the searchers, do you just look for what's in the open or do you check behind rocks, and bushes, and trees, and woodchucks?'

"The reason this matters, of course, is that if Melissa Trotter died any time after December 11, then Larry Swearingen is absolutely, unassailably innocent. Remember?  They arrested him on December 11 for unrelated charges, and they have yet to let him out. We'll I believe it's time to let him out. Unless someone can explain to me what I'm missing, I have no choice but to vote Not Guilty. You can argue all the other evidence you want to argue, but unless you can convince me that she was indeed killed before December 11, I have no choice but to vote not guilty."

In the next post in this series, you'll find out if I would have been right.

Or wrong.

ADDENDUM:
Part 3 is now available.