The Most Innocent Man on Death Row: Histology

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Histology

Histology comes from the Greek words for tissue and study. Histology is the microscopic study of tissues and the cells that comprise them. A histological examination of the bright red blood flakes found underneath Melissa's fingernails would, for example, show the cell architecture to be largely intact. Most of the cells would still have a well-defined nucleus protected by well-defined cell walls. Such well-defined cells could not have been decomposing for more than a few days.

The State concluded correctly that the bright red blood flakes found beneath Melissa Trotter's fingernails could be no more than several days old. The State, however, concluded incorrectly that the blood cells could have come only from contamination. The State declared it simply impossible that the bright red flakes and their third-party DNA cleared Larry Swearingen of Melissa Trotter's murder.

The State, however, knew or should have known that Melissa Trotter's cells had been decomposing for the same length of time as the third-party blood cells. Both sets of cells, those from Melissa's body and those from the third party's blood, had been decomposing for only a few days, and the State had the microscope slides to prove it.

Unknown to Swearingen's defense and appellate teams, five different samples of Melissa Trotter's tissues had been dehydrated, infused with paraffin as a preservative, stained with dye for enhanced visibility, sliced thin, and pressed between small, rectangular glass plates. This process preserved the tissues indefinitely as microscope slides ready for histologic examination.

The State prepared and stored five such slides, one each for heart, lung, nerve, fat, and vascular tissue. One can only presume that after such diligent effort, someone bothered to examine the slides through a microscope. One can only presume that the person would have then seen in private that which would later become public. Melissa Trotter's cells maintained their basic architecture. Most of them still showed well-developed nuclei. Most of them still showed well-developed walls. Melissa's cells had been decomposing for no more than a few days. Larry Swearingen could not have possibly killed her.

Those slides were suppressed and kept from the defense, just as the stalker evidence had been suppressed and kept from the defense. They were not mentioned in the autopsy report. They were not mentioned by any State witness or expert during trial or during any preliminary hearing. In fact, when the defense expert at trial testified about the absence of slides, neither the State nor any of the State's experts made any effort to correct this unintentionally false testimony.

The existence of the critical histological evidence was discovered by Swearingen's appellate team in January of 2009. Since Swearingen was scheduled to die on the 27th of that month, time was short. The slides were examined by Dr. Lloyd White, mentioned previously, and Dr. Stephen Pustilnik, Chief Medical Examiner of Galveston County. They each issued a report on January 21, just six days before the State was once again scheduled to execute Larry Swearingen.

Of the heart tissue, Dr. White wrote:

Well-stained nuclei are present in nearly all of cardiomyocytes (heart muscle cells). ... The disappearance of nuclear detail within one or two days of cell death is a phenomenon recognized in all basic medical pathology texts. ... The appearance of the cardiomyocytes indicates that death did not occur more than two or three days before recovery of the body from the Sam Houston National Forest.

Of the nerve tissue, Dr. White wrote:

A piece of nerve tissue which is sectioned longitudinally was present in the Harris County Medical Examiner ... the nuclei are plentiful and well preserved ... The subcellular detail ... disappears within a matter of 2 or 3 days after death unless the tissue is fixed and preserved. The appearance ... is that of fresh tissue from a recently deceased person and is nearly identical to that from a live person.

Of the vascular and fat tissue, Dr. White wrote:

Vascular tissue was present in fat and lung tissue on the Harris County Medical Examiner slides. ... The vessel contents include intact red blood cells ... Nuclei are present ... The fat cells are also all intact. ... This tissue is well preserved, which would not be the case if decomposition had progressed much more than 48 hours under conditions in the National Forest. ... The appearance is of tissue of a very recently deceased person.

Of the lung tissue, Dr. White wrote:

Even at low magnification the coloration and the structure of the tissue is that of well preserved tissue that has undergone minimal autolysis. The walls of the alveoli are formed by endothelial cells which are elongated to form a membrane that is only several microns thick. Nonetheless these fragile structures are intact throughout this section of tissue ... 

The architecture and cellular detail seen in the lung tissue would not be discernible in a body left in the environment of the National Forest unless death occurred within two or three days of recovery.

Dr. Pustilnik confirmed Dr. White's analysis.

The review of the microscopic slides demonstrates multiple tissue types in a remarkably good state of preservation. Nuclear and cytoplasmic details of the tissue and other supportive elements such as lung tissue, myocardium, adipose tissue, blood vessels, blood elements, and connective tissue are all in remarkably good shape showing little, if any degradation or nuclear or cytoplasmic detail. ... 

In summary, without prior refrigeration the deceased was killed within reasonable certainty between five and to seven days prior to her discovery. This would put the date of death on or about December 26, 1998. In addition, the absence of mummification and desiccation the ears, as well as to the fingertips is consistent with there not having been prior prolonged refrigeration of the deceased.  

In other words, Larry Swearingen was in jail for at least two weeks before Melissa Trotter was killed. He is therefore factually innocent of her murder.

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The Most Innocent Man on Death Row: Stomach Contents

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Stomach Contents

Dr. Harrell Gill-King is a board certified forensic anthropologist with over thirty year's experience providing estimates of the postmortem interval for human remains at various stages of decomposition. He submitted an affidavit placing the various types of scientific evidence in perspective. I quote from his affidavit.

Histology is indisputably the most accurate scientific tool for determining post mortem interval in the short term, whereas entomology consistently yields far less reliable results. Indeed, it is accepted in the scientific community that entomological estimates of post mortem interval should be used only when direct decompositional rate methods, such as histology, are not possible. ... 

Autolysis is merely a subset of decomposition. Further, decomposition is inherently less reliable than histology in estimating post mortem interval. Accordingly, when histological estimates of post mortem interval seemingly conflict with the extent to which physical remains have decomposed, accepted science requires the decomposition to be explained by something other than autolysis, if plausible. ... 

Where ... proper histological estimates of post mortem interval have been conducted, histology is the lens through which all other evidence of post mortem interval should be viewed and the method with which other approaches must be reconciled, not vice versa.

Unlike all the others, Dr. Gill-King took note of the stomach contents as an indicator of a recent death.

Even in the absence of the histological evidence, science tells us that any remaining food in the stomach of a deceased individual indicates a relatively short post mortem interval. And from a scientific perspective, stomach contents could never alter an estimate of post mortem interval grounded in histology. ...

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The Most Innocent Man on Death Row: Science Undone

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Science Undone

Faced with the new scientific claims that Melissa Trotter died soon before her body was discovered, and given that the State had withheld from the defense critical evidence of a stalker who threatened Melissa's life, the Texas Court of Criminal Appeals granted Larry Swearingen a second stay of execution. Once again, the stay came only one day before Swearingen was to be put to the needle.

Once again, Texas Governor Rick Perry declined to intervene. The fact that Larry Ray Swearingen is alive today has nothing to do with the executive clemency stewardship of Rick Perry.

The CCA instructed the original trial judge to hold hearings regarding the new scientific claims and to make a recommendation about Swearingen's case. The trial judge found no basis for granting a new trial. In its majority opinion, the CCA simply adopted the findings of the trial judge without comment. They denied Swearingen's appeal.

CCA Judge Cathy Cochran filed a lengthy concurring opinion in which she attempted to rationalize the Court's irrational decision. She began by suggesting that the validity of the scientific evidence must not be determined by the scientists; rather she insisted the science be dismissed if the Court found the circumstantial evidence more compelling. From Judge Cochran's concurring opinion in Ex Parte Swearingen (2009).

To assess applicant's latest claims, one must weigh their merits relative to all of the other evidence in this case.

Judge Cochran then listed the circumstantial evidence against which the scientific conclusions would be weighed. That list will be discussed momentarily. Judge Cochran concluded by declaring that the scientific conclusions were at odds with the circumstantial evidence and the science should therefore be rejected.

The hallmark of a scientifically sound hypothesis is that it is consistent with, and accounts for, the totality of the known facts. ... When all of the other known facts and evidence are wholly inconsistent with a particular scientific hypothesis, the reasonably objective scientist revisits that original hypothesis, looking for a flaw. Although one does not doubt the honesty and sincerity of these medical examiners, their theory that Melissa did not die until December 29th or 30th because of the relatively intact state of some of her internal organs is flatly contradicted by an incredible wealth of other evidence. They have made no attempt to account for or explain this other evidence or provide an alternate hypothesis. ... 

I therefore join the Court's Order [to deny relief.]

As it turns out, the "incredible wealth of other evidence" used to convict Larry Swearingen is much like the evidence proving the existence of Santa Claus. The evidence is great in quantity but low in quality.

I address below some of circumstantial evidence identified by Judge Cochran as more trustworthy than the scientific findings. In the excerpts, I have replaced each use of the word "applicant" with "Swearingen."

Eyewitnesses

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.

Three witnesses saw Swearingen sitting with Melissa in the Montgomery College; 

Melissa's Biology teacher saw Melissa leave the Montgomery College library with a male shortly after 1:30 p.m.;

More specifically, each of three eyewitnesses testified that Larry Swearingen was the person they had seen with Melissa Trotter in the Montgomery College library sometime between 11:30 AM and 1:30 PM on December 8. One witness testified that he had seen the Swearingen from the side for approximately 5 seconds. Swearingen was wearing a cowboy hat, a blue coat, blue jean pants, and boots. The witness testified that the person he saw had blond hair. Swearingen has black hair.

Another witness claimed to have been about 15 feet away from Swearingen, and also viewed him only from the side. That witness described Swearingen as wearing western wear and a baseball cap, not a cowboy hat. That witness initially did not identify anyone in the courtroom as the person he saw with Melissa Trotter. After coaching from the District Attorney, he identified Swearingen as the person most likely to be the one he saw.

Each of the eyewitnesses had been biased by an earlier, suggestive photo lineup. In that photo lineup, the police placed Swearingen standing with blonde males of smaller build. Swearingen was wearing jail clothing. Short of a name tag that said "Pick Me", Swearingen could not have been more distinctive.

Though called as a State's witness, Melissa's biology teacher contradicted the three eyewitnesses. The biology teacher testified that Melissa was in a review session he provided for an impending final exam. That review session lasted from 11:30 AM to 1:30 PM. Melissa was present at that session. She therefore could not have been in the library.

Swearingen's cell phone records and a sales receipt also establish that he could not have been in the library between 11:30 AM and 1:30 PM. Calls at 10:17 and 10:42 placed Swearingen at a Sears Automotive Center, where he was having some automotive work done. That call placed him near, but not at the college. A sales receipt time-stamped at 11:39 placed Swearingen at  Cavendars Boot Town located 20 miles south of the college. A call placed at 12 noon placed Swearingen near the intersection of FM 1960 and I-45, 14 miles south of the college.

A cell phone call at 1:15 placed Swearingen near the college where he soon thereafter spoke with Officer Gail Wilson. He was not then in company of Melissa Trotter. He then met Melissa that day only briefly and only after speaking with Officer Wilson, around 1:30 PM. Larry Swearingen left the school alone. At 1:37 PM, Melissa Trotter used her computer to access her email.

The Red Marks on Swearingen's Neck, Cheek, and Back

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.

Following Swearingen's arrest, law enforcement authorities observed and photographed red marks on Swearingen's neck, cheek, and back;

Larry Swearingen was an electrician. Well before his arrest for the murder of Melissa Trotter, he had suffered chemical exposure after an electrical transformer exploded. This exposure caused him to suffer occasional outbreaks of welts on his back, neck, and face. His wife confirmed the accident and the affliction during her testimony. When shown the photos of the red marks on Swearingen after his arrest, she testified that the marks looked like the welts she had seen on him before.

The Hairs Yanked from Melissa's Head

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.

Two of Melissa's hairs that were recovered from Swearingen's truck still contained the anagen root, indicating they had been forcibly removed from Melissa's head;

Judge Cochran seriously misstated the evidence. Criminalist Sandra Musialowski testified at trial that the hairs contained microscopic characteristics similar to the victim. However, in a pre-trial report submitted to the District Attorney, Musialowski explained that the "hair does not possess sufficient unique individual microscopic characteristics as to be positively identified as coming from one particular person to the exclusion of all others." Despite Judge Cochran's summary of the "known facts", the hairs found in Swearingen's truck were never established to belong to Melissa Trotter.

At trial, under carefully crafted questioning by the State, Musialowski somehow failed to mention her inability to positively identify the hairs as coming from any particular person. Instead, she suggested that the hairs came from Melissa Trotter.

Q. ... do you know whether or not the hairs in this exhibit are the forcibly removed hairs from the suspect's vehicle? 

A. Yes. 

Q. Belonging to the victim? 

A. Which contain microscopic characteristics similar to the victim. 

Q. Those are the ones forcibly removed? 

A. Yes, there were two of them forcibly removed.

While Musialowski's testimony may have been strictly correct, Musialowski left a compliant jury, a compliant appellate court, and a compliant Judge Cochran with the distinct impression that the hairs came from Melissa Trotter.

The Cigarettes and the Lighter

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.

Swearingen's wife observed Melissa's cigarettes and lighter in Swearingen's home that evening, and those items were subsequently recovered from Swearingen's home during the investigation;

Judge Cochran seriously misstated the evidence. The evidence was not that the cigarettes and lighter belonged to Melissa. The evidence was that the cigarettes were Marlboro cigarettes, the same brand as smoked by Melissa. The evidence was that the lighter was similar to the one used by Melissa.

DNA testing on the Marlboro cigarettes found at Swearingen's home excluded Melissa as the person who smoked them.

A criminalist for the Department of Public Safety testified that the plastic wrapper from the Marlboro package found in the Swearingen's home did not match the plastic wrapper from the Marlboro package found in Melissa's car.

It seems, however, that Terry Swearingen, Larry's wife, may have been a secret smoker. Though she testified that she didn't smoke and had never smoked, she conceded that she had bummed cigarettes from her relatives. In fact, she testified that she had bummed Marlboro cigarettes from her relatives. Evidence collected by the Montgomery County Sheriff's personnel showed numerous Marlboro cigarettes and butts collected from the yard and trash of Swearingen's home.

The Pantyhose

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.

The ligature used to asphyxiate Melissa was a single leg torn from a pair of pantyhose belonging to Swearingen's wife, the remainder of which was recovered from Swearingen's home during the investigation;

Police searched Swearingen's home twice before the pantyhose were discovered. On December 15, five or six deputies, among them two crime scene investigators, searched Swearingen's mobile home. They searched every room, looked through boxes of clothes, and looked through the trash. Three days later, officers conducted a search that was just as thorough. In neither search did the investigators find a ripped pair of pantyhose.

The pantyhose were discovered a week later by Swearingen's landlord. The landlord was cleaning the mobile home in preparation for the next tenant. The landlord either found the pantyhose in the trash or placed them in the trash after finding them in a box of clothes.

Recall that the police investigation was sufficiently thorough that they found cigarettes and cigarette butts in the yard and trash. They did not, however, find the pantyhose in the trash or elsewhere.

Assuming either of the two police search teams performed a thorough search, the pantyhose were not in Swearingen's home when they searched it. Someone other than Larry Swearingen must have been placed them in or near his mobile home.

The Luminol Test

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.

A Luminal test on the seats of Swearingen's truck indicated that they had been wiped down with Armor All, and two empty containers of Armor All wipes were found in the garbage at Swearingen's home;

Judge Cochran meant Luminol with an "o", not Luminal with an "a". Luminal is the trade name of a drug used to control epilepsy. Luminol is a chemical that glows a striking blue when mixed with certain substances. Classically, that certain substance is the iron in blood, but other substances will also work. Armor All is not one of those other substances.

When investigators tested for blood, they found none. Judge Cochran's suggestion is that blood must have been there because Swearingen recently cleaned or treated the seats of his truck with Armor All. The fact is, no blood was found.

The finding of Armor All wipes in the trash of Swearingen's home points as much to Swearingen's innocence as it does his guilt. Though the investigators searched with sufficient diligence to find empty Armor All containers in the trash, along with cigarettes and cigarette butts not belonging to Melissa, they did not find the pantyhose. The pantyhose turned up only after their search, only after Swearingen had been in jail for more than a week.

The Torn Papers

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.

On December 17, 1998, two neighbors of Swearingen's mother and stepfather collected numerous pieces of torn paper from along their street, which turned out to be Melissa Trotter's class schedule and some health insurance paper work Melissa's father had given to her;

While putting out his garbage, John Parsley found multiple torn pieces of paper along the ditch area in front of his home. His normal trash days were Monday and Thursday. Before the discovery of the torn paper, there had been two trash pickups. Parsley observed no torn papers while putting out his trash on either the 10th or the 14th. The papers appeared only after Swearingen had been in jail for a week, not long before the pantyhose remnant was mysteriously found in Swearingen's apartment.

The Chicken McNuggets

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.

When Swearingen's good friend, Elyese Ripley, visited him in jail on January 9, 1999, Swearingen asked her to lie and say that she had been with him on the day Melissa disappeared and that they had gone to the Texaco-McDonald's near Montgomery College; 

The contents of Melissa's stomach at the autopsy, which included what appeared to be chicken and a french fry-like form of potato, were consistent with the tater tots she had eaten at Montgomery College shortly before leaving with Swearingen and the Chicken McNuggets she and Swearingen had apparently purchased at the nearby McDonald's on December 8, 1998;

The State had no direct evidence that either Swearingen or Trotter was at the nearby Texaco-McDonald's that day. The State simply presumed Swearingen and Trotter had been there since Swearingen asked a friend to claim she had been there with him. The State presumed also that Melissa Trotter must have consumed Chicken McNuggets, since some chicken had been found in her stomach. Each presumption allegedly proved the other. This is an illogic known as circular logic.

The Two Most Inculpatory Pieces of Evidence

From Judge Cochran's list of circumstantial evidence allegedly proving Swearingen's guilt.

Two of the most inculpatory pieces of evidence proving that Swearingen murdered Melissa on December 8th were: (1) the pieces of potato, chicken, and green vegetable that Melissa ate for lunch immediately before disappearing that were found in her stomach during the autopsy on January 3, 1999. Doctor Joye Carter testified at trial that food remains in the stomach for about two hours after eating it. (2) Cell phone records showing Swearingen used his cell phone at 3:03 p.m. on December 8th near the cell phone tower at FM 1097, a highway that crosses I-45 well north of Swearingen's trailer house. This is directly on a logical path to the Sam Houston National Forest where Melissa's body was found three weeks later.

Judge Cochran continued to cling to the absurd claim that stomach contents will be perfectly preserved in a corpse for three weeks. She pointed to Dr. Carter's trial testimony to support the absurd claim, though Judge Cochran knew that Dr. Joye Carter had recanted her own trial testimony. When Dr. Carter later submitted her affidavit agreeing that Larry Swearingen must have been in jail when Melissa was killed, Dr. Carter was well aware of Melissa's stomach contents.

In her recanting affidavit, Dr. Carter also acknowledged that Melissa's body would have lost most of its mass if it had been in the forest for three weeks. Dr. Larkin, in his affidavit, explained Melissa's body would have lost up to 90% of its mass had it been in the forest for 25 days. In other words, her body would have weighed slightly more than ten pounds. To believe that such a desiccated corpse would perfectly preserve tater tots and Chicken McNuggets is folly.

Judge Cochran's second most inculpatory piece of evidence was that a cell phone tower near FM 1097 and I-45 picked up a call from Swearingen at 3:03 PM. She added that the tower was well north of Swearingen's house and directly on a logical path to the Sam Houston National Forest.

Judge Cochran once again misstates the evidence, this time seriously so. The intersection of FM 1097 and I-45 is not well north of Swearingen's house. It is slightly south. More significantly, the tower is so close to Swearingen's home that it is the one most likely to pick up any cell phone call Swearingen might place from his home.

The call at 3:03 PM did not prove Swearingen was transporting a body to the Sam Houston National Forest. The call merely showed that Swearingen was near, perhaps even inside, his own home when he made the call.

A Third and Timely Stay of Execution

To deny relief to Larry Swearingen, the Texas Court of Criminal Appeals argued in circles, misstated the inculpatory evidence, and ignored exculpatory evidence. Most disturbingly, the CCA simply dismissed the affidavits and testimony of seven qualified doctors who stated with scientific certainty that Melissa Trotter was killed well after the date Larry Swearingen was jailed.

Larry Swearingen was given a third date with the needle, this one on August 18, 2011. Rick Perry announced his run for the Republican nomination for president on August 13.

Swearingen's execution could have posed Governor Perry a nightmarish political conundrum. If Governor Perry allowed Swearingen to be executed, he would have had to answer for allowing the execution of someone so clearly innocent as Swearingen. If, on the other hand, Governor Perry had in any way intervened with the execution, he would have been asked why he did not previously intervene when Swearingen twice came within a day of execution.

Fortunately for Rick Perry, the Texas Court of Criminal Appeals stayed Swearingen's execution for a third time. The Court did so on July 28, just 16 days before Perry threw his hat into the presidential election ring. The Court claimed to have been provided "a new and separate allegation of a due process violation." The Court did not specify what that allegation might be.

TO BE CONTINUED

Anatomy of a Murder: Case Studies

So far in this plodding series of unknown length, I believe I have established that, under Texas law, anyone who commits a felony material to an execution is guilty of murder. In this post, I will discuss the dearth of cases involving murder by falsification. I find only two worthy of mention. The first is from 18th century England. I found it in "Murder by Perjury", by John C. Hogan.

The only instance in modern times of a court in England passing on this subject is The King v. Macdaniel and Others. The facts in this case were as follows: By statute, the government had offered to reward, with forty pounds, any person who would convict a highway robber. Mary Jones (a widow), Stephen Macdaniel, John Berry, and Thomas Cooper conspired against an innocent person, Joshua Kidden, to recover this reward. They arranged an indictment of Kidden for having robbed Mary Jones on the highway, a crime he never committed.

Mary swore in court positively as to the person of the prisoner, equally positively as to the circumstances of the fictitious robbery, and she was confirmed in all this by the false testimony of John Berry. After Kidden's conviction and execution as a highway robber, the reward was collected and divided among the conspirators. 

Sometime later, the Constable of Blackheath arrested one Blee on suspicion of theft, and this led to the discovery of the conspiracy and contrivance to gain' the reward. Subsequently, Stephen Macdaniel, John Berry, and Mary Jones were indicted before Mr. Justice Foster at the Old Bailey, June session 1756, "for the wilful murder of Joshua Kidden, in maliciously causing him to be unjustly apprehended, falsely accused, tried, convicted, and executed, well knowing him to be innocent of the fact laid to his charge ..."

Both accounts of the case say that the defendants were convicted of this offense, but the judgment was respited, and that the Attorney General, Sir Robert Henley, refused to argue the point of law; not necessarily, though, because he believed it was not good law, but for other reasons, which are not clearly stated in any of the sources.

The referenced article gives the only summary, and hence the best summary, I found regarding the history of murder by perjury. The history in that article necessarily ends at 1961, since that was the year in which "Murder by Perjury" was published. The article noted that, at least then, murder by perjury was specified by Article 309 of the Texas Penal Code as a crime punishable by death.

In the United States, Texas, as well as California has a statute that punishes murder by perjury with death. This statute was commented upon in the case of Smith v. State, where the defendant sought to have a witness declared incompetent to testify against him because she was not old enough to incur the death penalty for false testimony. The court said that in order to make this position tenable, the conviction would have to have been for the death penalty, not for imprisonment.

The statute requires ... not only that the death penalty might be inflicted, ... and that the witness testified to some material fact bringing about or tending to bring about that conviction. ... Tex. Crim. App. 273, 164 S.W. 838 (1913)

I found a copy of the 1925 Texas Penal Code, and there it is:

Art. [311][208][195] Perjury in capital case.-

When the perjury is committed on a trial of a capital felony, and the person guilty of such perjury has, on the trial of such felony, sworn falsely to a material fact tending to produce conviction, and the person so accused of the capital felony is convicted and suffers the penalty of death, the punishment of the perjury so committed shall be death.

So the law was on the books prior to 1913, in the year 1925, and as late as 1961. It's not there now. Note, however, that I have not been arguing there is a specific crime of Murder by Falsification in Texas, and I certainly haven't been arguing that such a crime would be a capital murder. I have been arguing instead that Murder by Falsification is just as much murder as is Murder by Stabbing, or Murder by Poison. None of those specific types of murder are defined specifically by the Texas Penal Code. Each is simply murder. Each could be capital murder if one of many special conditions was met, such as the killing of multiple people during the same event.

The second case study confirms that a perjurer in a Texas capital murder case can be charged with murder. I refer you to the Houston Chronicle article "'Murder by Perjury' in the Cantu Case?".

Juan Moreno ... was shot nine times and left for dead in a 1984 robbery in San Antonio. A companion of Moreno was shot to death during the robbery. 

Then, Moreno says, he was pressured by police into identifying the wrong man after repeatedly saying it wasn't him. 

That man, Ruben Cantu, was executed based on Moreno's testimony in a 1985 trial. 

Now Bexar County District Attorney Susan Reed says if her investigation supports Moreno's contention that the wrong man was executed, she may file charges against him. 

For perjury? No. The three-year statute of limitations ran out a long time ago. 

For the murder of Ruben Cantu. ... "A man has been executed because of that lie. That is pretty serious stuff. There are consequences for that. ... If there were not consequences, then the system would allow itself to be attacked. The integrity of the judicial system is all based on truth, most importantly presenting the truth to the jury." 

... Ironically, the statute under which Reed says she would likely charge murder is the same one used here in Harris County to charge the Pasadena school bus driver for murder for accidentally running over a 9-year-old girl. Under that statute, it is felony murder when, in the course of committing another felony (perjury, in this case) a person commits "an act clearly dangerous to human life that causes the death of an individual."

For considerably more detail on the pliable witness that is Juan Moreno, see my post The Case of Ruben Cantu. I'll provide an early and a late paragraph from that post to bring you up to speed quickly.

Two men were shot and robbed while guarding a house under construction. One of the victims, Juan Moreno, survived and identified Ruben Cantu as one of the two men who robbed and shot them. Moreno made that identification only after four previous interviews in which he was unable or unwilling to identify Cantu. Based exclusively on Moreno's testimony, and despite an alibi witness, Cantu was convicted and executed. ... 

I know now that Juan Moreno was and is a malleable witness. The Bexar County DA must have known that as well, yet they used him as the sole basis for the conviction and execution of Ruben Cantu. After the execution, after Juan Moreno had recanted his testimony, the new Bexar County DA dismissed Juan Moreno simply because he changed his story. Their confidence or skepticism in Juan Moreno is as malleable as was his testimony.

Whether or nor Cantu was guilty, it was an absolutely a shaky conviction then, and is even more so today. It's a conviction based almost exclusively on someone who, according the State, lied before trial, told the truth at trial, and lied after trial. That doesn't inspire confidence in the Texas' justice system.

Of interest to me now is that the case has returned to my consciousness after the wrongful conviction of Preston Hughes. It's back because Bexar County DA Susan Reed threatened Moreno with murder if he stood by his recantation, if he insisted he perjured himself at Cantu's trial.

When I first wrote of Cantu, I was unaware that he had been threatened with a murder charge. I learned of it only recently, only after concluding independently that someone committing a felony in furtherance of an execution is guilty of murder. I think the law is clear on the point, and I'm glad DA Susan Reed agrees with me.

I doubt of course that DA Reed ever intended to charge Moreno with murder. The intent of the threat was to convince Moreno to recant his recantation. As best I can tell, Moreno has not recanted his recantation. As best I can tell, Moreno still stands by his claim that he perjured himself. However, rather than charge him with murder, as she threatened, DA Reed simply concludes Moreno is lying now.

Still she makes my point for me. In Texas, one who commits a felony in furtherance of an execution is guilty of murder. And, for what it's worth, there is no statute of limitations on that crime, despite the claims of one commentor.

The Impending Execution of Manuel Pardo

Manuel Pardo sits on death row awaiting execution by the people of Florida on December 11, 2012. I suspect he will not survive the day.

I summarize his case by repeating the entry for Manuel Pardo in Murderpedia. I note that Murderpedia apparently took their entry from Hunting Humans: An Encyclopedia of Modern Serial Killers, by Michael Newton.

Manny Pardo was 21 years old when he joined the Florida Highway Patrol in 1978, but his first stint in law enforcement was short lived. 

Accused of falsifying more than 100 traffic warnings and correction notices, he was allowed to resign a year after he joined the force in lieu of being fired. It seemed a small concession at the time, but it was all he needed: two months later, Pardo was hired by the Sweetwater Police Department to patrol a Miami suburb. Still, his problems continued, and in 1981, Pardo was one of four officers charged in a series of brutality cases filed by the state attorney general's office. 

Those charges were later dismissed, but Pardo was fired on January 21, 1985, after he flew to the Bahamas to testify in defense of another ex-cop held for trial on drug-running charges. 

Even then, the worst was yet to come. On May 7, 1986, Pardo and 25-year-old Roland Garcia were arrested on murder charges, accused in the execution style slayings of drug dealer Ramon Alvero Cruz and his girlfriend, Daisy Ricard, who were shot and killed on April 23. 

Weeks later, on June 11, Metro Dade officials announced that Pardo and Garcia were linked to a total of nine murders -- victims including six men and three women -- dating back to January 1986. 

Detective Ted MacArthur told the press, "They were drug ripoffs, and quantities of cocaine were taken from the scene." The killing spree had ended with Ramon Alvero Cruz, alleged to be Pardo's underworld employer since he was fired by Sweetwater PD. 

As evidence against the killer cop, prosecutors cited Pardo's diary, which included written entries about the murders along with news clippings and photographs of several bloody corpses. Nazi memorabilia recovered from Pardo's home, together with the prisoner's own statements, revealed that he was also an ardent admirer of Adolf Hitier, believing that jews and blacks were inferior species deserving of extermination. 

Legal maneuvers delayed Pardo's trial for two years, but prosecutor David Waksman stood by the state's original theory of an ex-cop gone bad, addicted to cocaine and easy money, killing coke dealers to rip off their stashes, eliminating any witnesses who crossed his path. Pardo denied it, painting himself as a one-man vigilante squad committed to eliminating "parasites" and "leeches" from law-abiding society. His court appointed lawyer, Ronald Guralnlck, was committed to a different tack, presenting an insanity defense. "The man is crazy," Guralnick told reporters. "All you have to do is listen to him to know he's totally out of his mind." 

And, indeed, Pardo seemed intent on proving that point when he took the witness stand in his own defense on April 13, 1988. Testifying against Guralnick's advice, Manny didn't bother to deny the killings; rather, he regretted that his final body count had been so low. "Instead of nine," he told the court, "I wish I could have been up here for ninety-nine." Furthermore, he declared, "l enjoyed what I was doing. I enioyed shooting them. They're parasites and they're leeches, and they have no right to be alive. Somebody had to kill these people." He shot his victims multiple times after death, Manny said, to further "punish" them for their crimes, and he had taken Polaroid snapshots of the corpses, afterward burning some in an alabaster ashtray. "I sent their souls to the eternal fires of damnation of hell," he testified, "for the misery they caused." 

Pardo staunchly denied the state's claim that he, himself, was a mercenary drug dealer. The very idea was "ludicrous" and "ridiculous," he said. Prosecutor Waksman asked about the $50,000 Pardo had earned from selling two kilos of stolen cocaine, the sum recorded in his diary, but Manny insisted that he had kept only $2,000 for himself -- the bate minimum required to purchase guns and ammunition. After Pardo remarked that bullets cost him ten cents each, Waksman asked him whether it had cost him only $1.30 to kill two victims who were shot a total of 13 times. Pardo grinned as he replied, "Thats a pretty good investment, isn't it?" 

With Pardo's sanity at issue, both sides called psychiatrists to testify about his mental state. Syvil Marquit, appearing for the defense, reported that Pardo was insane and had been at the time of the nine murders. Manny was competent for trial, Marquit said, and understood the physical consequence of his actions, "but he doesn't know right from wrong." Court appointed psychologist Leonard Haber, on the other hand, testified for the state that Pardo was "sane, but evil." Manny, for his part, agreed with the state, at least in regard to his sanity. As for psychologists, he told the court, "They're whores. Pay them enough money and they'll say anything." 

Pardo's extreme racist views may have hurt him as much as the physical evidence of his guilt when he appeared before a jury that included five blacks and two jews. Metro Dade detectives listed the Nazi paraphernalia found in his home and describes the swastika tattoo worn by one of his dogs, a Doberman pinscher. Manny pitched in with testimony that Adolf Hitler was a "great man" whose activities had inspired Pardo to read more than 500 books on Nazism. The jury deliberated for six hours on April 15 before convicting Pardo of nine murders and nine other felony counts, including robbery and use of a firearm in commission of a crime. 

Court reconvened five days later to consider Pardo's sentence. Attorney Guralnick and Manny's parents pleaded for leniency, citing his deranged mental state, while prosecutor Waksman argued the reverse. "He was weird, weird, weird," Waksman said, "but he was not insane." Pardo, meanwhile, was determined to remain the star performer in his own private drama. "I am a soldier," he told the court. "I accomplished my mission, and I humbly ask you to give me the glory of ending my life and not to send me to spend the rest of my life in state prison. I'm begging you to allow me to have a glorious end." The jury complied, and judge Phillip Knight accepted their recommendation, handing down one death sentence for each of Pardo's nine murders, plus a term of 15 years in prison for the noncapital charges. 

His commitment to death notwithstanding, Pardo made no objection when his conviction and sentence were automatically appealed to the Florida Supreme Court. There, on March 6, 1990, public defender Calianne Lantz told the assembled justices that Pardo was insane when he committed his nine murders. Assistant Attorney General Ralph Barreira disagreed, describing Manny as a brute who simply liked to kill. The court agreed with Barreira, affirming Pardo's conviction and the "special circumstances" which allowed his execution under Florida state law. A year later, on May 13, 1991, the US Supreme Court effectively upheld that decision, denying Pardos plea for a writ of certiorari. 

Pardo, meanwhile, had managed to attract at least a handful of admirers while his case was winding through the courts. One such, a self-described friend of the convicted serial killer, voiced his support in a letter to the Orlando Sentinel Tribune, published on April 22, 1990. It read, in part:

Manny was never accused of corruption. He was let go for his overzealousness in pursuit of criminals -- no matter who they knew or whose relatives they were. And lest anyone get the idea that he just cruised around gunning people down, let me point out each of his victims was a thoroughly investigated, tried, convicted, and executed (by him) drug dealer whom Pardo had failed to get off the streets via the normal criminal justice system. Manny Pardo doesn't deserve condemnation, he deserves a commendation.

In fact, as even cursory research would have shown, Manny had been fired in Sweetwater for "showing a lack of good judgment and a habit of lying" -- specifically in defense of an accused drug dealer -- but the details hardly mattered. He was awaiting execution at Starke, the state's maximum-security prison ... but he was not entirely out of action yet. 

In March 1996 the Miami Herald revealed that Pardo, now christened the "Death Row Romeo," had been placing personal ads in tabloid newspapers, attracting lonely female pen pals who had mailed him thousands of dollars in return for hollow promises of love. The Herald reported that Manny had once accumulated some $3,530 in his prison canteen account, most of it sent to him by women, but prison officials declared that he had broken no rules, "although he may have broken several hearts." The lure was an ad that painted Manny in a near-heroic light. It read:

FLA. 116-156 CORRECTIONAL INSTITUTE INMATE. Ex-cop Vietnam vet. Took law into own hands and ended up on Death Row. He needs letters from sensitive-understanding female, for real -- honest relationship.

One who responded was Barbara Ford, a 46-year-old cleaning woman from Findlay, Ohio. Three weeks after she answered Pardo's ad, Ford received a letter from Manny, along with several news clips describing his police career in a favorable light. The letter told her, "I want one special lady in my life. I don't play emotional games cause I hate emotional games. I also hate liars and users." From the beginning, Pardo's correspondence always addressed to "the love of my life" -- swiftly degenerated into a litany of complaints, invariably closing with mention of his need for "a few bucks a week to buy personal items like stamps, paper, shampoo, etc." One note describes a tearful prison visit from his daughter, quoting her as saying, "Daddy, when I'm older and able to work, I will buy you a radio so you can listen to music and I will send you money from my weekly check so you can buy coffee, shampoo and your other needs." 

In the meantime, Barbara Ford was happy to take up the slack, sending Pardo $430 from her yearly income of $7,500. Another "love of his life," mailing cash at the same time, was 54-year-old Betty Ihem from Oklahoma who began corresponding with Pardo 10 months before he hooked Barbara Ford. By the time Ford entered the picture, Pardo and Ihem were addressing each other as husband and wife, Betty collecting 275 letters from her incarcerated lover, sending him $1,200 over time from the salary she earned as a part-time WalMart employee. 

The correspondence was finally too much for Pardo, who tripped himself up with a clumsy mistake. On October 12, 1995, Betty Ihem received a letter meant for Barbara Ford. It read: 

My Dearest Barb,

Hi. I hope this letter finds you in the best of health. You are all I want and need. I am not a dream and if my love interests you, well then it's yours.

I love you,

Manny

Predictably furious, Ihem sent the letter on to Ford, with her own explanatory note written on the back. Eight days later, Ford wrote to Pardo, addressing him as "Thief of Hearts" and enclosing photocopies of the money orders she had previously sent him.

You received the money under false pretenses (she wrote) which makes you a fake and not the 'Man of Honor' which you professed to be, Needless to say, you are a liar and a hypocrite -- the very things you said you hated in people. If you choose not to return the money, I will be your very worst nightmare and expose you for the hypocrite you truly are. I'm not a very patient person so I hope you respond to my request immediately. The choice is yours.

Pardo replied on November 2, 1995, with all the arrogance of a condemned prisoner who knows he is effectively untouchable.

Barb,

I hope you are in good health. I am reading your letter and am amazed you think your threats would affect me at all! You and your troubled life will also be exposed. In addition, my attorney will have a field day with you and that will be your nightmare lawsuit for slander, etc. You are a bitter and vindictive woman.

God bless,

Manny

Ford took her case to Florida governor Lawton Chiles on November 18, asking, "What kind of people are you in Florida? You have a guy on Death Row, and he still hurts people." Her reply carne from Judy Belcher at the Florida Department of Corrections on November 29, advising Ford that no law forbade prisoners from placing personal ads or soliciting gifts from gullible pen pals. "On the contrary," Belcher wrote, "Florida Statutes have ruled it illegal to deny inmates that privilege because doing so would deny inmates access to the outside world. Many inmates, both male and female, have accumulated considerable amounts of money this way. They are convicts and some are experts at 'conning' honest people out of their hard earned dollars. Often, when we advise a person that an inmate is not being honest, the person will still choose to believe the inmate." 

With that grudging seal of approval, Manny Pardo was free to pursue his career as a death-row swindler. Only the final, inevitable date with "Old Sparky" will curtail his correspondence with gullible women, and no final execution date has been set at this writing. With others who have killed repeatedly across the Sunshine State, Pardo takes his ease with pen in hand and plays the waiting game.

I take no position on the righteousness or foolishness of the death penalty. I do, however, oppose the execution of anyone who has a substantial claim of actual innocence. For all other instances, I stand mute regarding the probity of the execution. In the case of Manuel Pardo, I stand mute.

ADDENDUM (12 Dec 2012): Manuel Pardo was executed on 11 December 2012 by the people of Florida.