The Most Innocent Man on Death Row: Recantation

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Recantation

Given what they had learned from Drs. Larkin, White, and Sanchez, Swearingen's appellate team tracked down Dr. Joye Carter. Confronted with the evidence detailed by Drs. Larkin, White and her successor Sanchez, Dr. Carter prepared an affidavit recanting her trial testimony that Melissa Trotter had been murdered on 8 December.

My name is Dr. Joye M. Carter. The following statements are, to the best of my knowledge, true and correct:

I am presently the Chief Forensic Pathologist for Marion County, Indiana. I previously held the position of Chief Medical Examiner of Harris County, Texas. On January 3, 1999, in my capacity as Harris County Medical Examiner, I performed the autopsy of Melissa Trotter ... 

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, including marked decomposition of the head and neck region, and on the degree of maggot activity in this region of the body. I also remarked on the presence of fungal growth, noting that these organisms thrive in dark, dank and wet environments and are slow growing.

Before actually recanting her testimony in her affidavit, Dr. Carter would first blame others for her horrifically bad estimate of Melissa Trotter's date of death. She would blame the attorneys for not asking her the right questions, and blame unnamed sources for not providing her with valuable information. I excerpt that portion of her affidavit below.

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. Instead, the focus of the prosecution and the defense was on whether the forensic evidence indicated a rape or kidnapping had occurred. The majority of the questions from both sides were directed at whether autopsy findings indicated vaginal bruising, blunt trauma to the head, and whether the cause of death was asphyxiation by ligature or a sharp forced entry wound to the neck. 

For purpose of making this statement, I have reviewed the autopsy report of Melissa Trotter and autopsy photographs in her case. I have also reviewed several pieces of forensically important information that, to the best of my recollection, were not made available to during [sic] 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, address the significance of autopsy findings made during the internal examination of Ms. Trotter 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 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 a date of death twenty-five days earlier, 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.

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 autopsy report and photographs show partial skeletonization of the head and neck region due to decomposition and insect and mammalian scavenging. As stated in the report, soft tissue was absent from the nose and midfacial areas, and the tongue was dark due to decompositional changes, and there was skin slippage and slippage of the scalp. 

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 quickly. At room temperature, it is not unusual for these organs to liquefy within days. In this case, the body was found exposed in relatively open, only partially shaded space. Temperatures [sic] data indicates [sic] and [sic] average temperature of approximately 50 degrees, with high temperatures occasionally reaching the mid-seventies. 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.

Drs. Larkin and White had estimated the body had been in the forest less than a week. Dr. Carter corrected her previous, potentially lethal, time-of-death estimate from twenty-five days to less than two weeks.

In any case, Dr. Joye Carter joined Drs. Dael Morris, James Arends, Glenn Larkin, Lloyd White and Luis Sanchez in declaring and affirming that Larry Swearingen was in jail when Melissa's Trotter's body was placed in the Sam Houston National Forest.

Larry Swearingen was factually innocent.

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The Most Innocent Man on Death Row: Stalker

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A Stalker

As Swearingen's appellate team was making progress proving someone else must have murdered Melissa Trotter, they were stunned to learn that the State had long known that Melissa Trotter was being stalked and that her life had been threatened shortly before she disappeared. Well before Melissa's strangled body was found, the sheriff's department took reports from Lisa Roberts and Cora Sutton that an unidentified caller had threatened to "choke the life" out of her.

The State had never informed Swearingen's trial or appellate attorneys of these reports. Instead, the State suppressed all information relating to this life-threatening stalker as they sought to put Larry Swearingen to death.

Lisa Roberts' affidavit follows in its entirety. 

My name is Lisa Roberts. I swear to the best of my knowledge, the following is true and correct: 

1. In 1998, I was employed at League Line Marina Resort on Lake Conroe, Conroe, Texas. I was working in the phone room or call center. My job was to try to call possible customers and get them interested in the resort. About ten people worked in the phone room at this time, including Melissa Trotter. Robert Graham was our supervisor. 

2. Around November of 1998, Melissa began receiving phone calls that seemed to upset her. At first, she would hang up real abruptly. I'd ask her during a break what was going on, and she'd say something like, "men." I was pretty sure the problem wasn't customers, but Melissa did not say who was bothering her. 

3. As I recall, it was not too long before the time Melissa disappeared, she got phone calls that really upset her. Cora, who also worked in the call center, would patch the phone calls through to Melissa. Melissa broke down and started crying. She said "he won't quit calling." Cora patched another call through, and I picked up Melissa's phone. 

4 The caller thought Melissa was on the line and started saying completely foul things. He said: "You're a fucking bitch," and swore he was "going to choke the life out of me," meaning Melissa. He went on, saying that he was going to get her back for what she did to him. I remember him saying, "I'll strangle you: I'll choke the life out of you. I'm going to fuck you while you die." I started yelling back and he realized Melissa was not on the phone. That was the first phone call I took. 

5. The caller phoned again, and I picked up the phone again. He told me that he was going to "lick" Melissa's cheek, and "right before she took her last breadth," he said, "I'm going to kiss you on the lips for the last time." 

6. That night, the calls kept coming for an hour and a half until it was time to quit work. Everyone's numbers were down in the phone room because the calls took all our attention, except for one girl who did not want to make it her business. When he'd call, we would try to "star-69" the phone call in order to I.D. the caller, but he was using a private line. 

7. As I remember, Mrs. Trotter came out and picked Melissa up after work. I believe Melissa's own car was still in the parking lot when I returned to work the next day. That previous night was the last time Melissa worked at League Line Resort. She may have come out to pick up her check. I heard Melissa started working at Academy a few days later, but I didn't see her again after that night. 

8. While Melissa was working at League Line, this one guy picked her up three times, as I remember. The first time Melissa seemed O.K. about it. The second time he came to get her, Melissa said "Oh god, oh god." Nickie Mains and I confronted her as the guy was pulling up. I said she did not have to get in the car with anyone she did not want to. I told her I'd get my boyfriend. Melissa said, "You don't know what that will do: that'll cause problems." 

9. The night guard would not let the guy past, so he parked on the side of the road outside the entrance. The first two times he came to get Melissa, he parked in the dark. The third time he came to get Melissa, she was scared to death. We told her not to go, and when she insisted she had to, we made her promise to call us when she got home. She called forty-five minutes later. On this third occasion, this man parked in the light and I was able to see him and his car. He was driving pick-up, full size, and older model, light blue in color. I did not know who the person was and Melissa did not tell us his name. 

10. I know who Larry Swearingen is. I went to school with him. I had at least five classes in junior high and high school with him, including auto repair and a math class. The man who picked Melissa up was not Larry Swearingen. The voice on the phone was not Larry Swearingen's voice. 

11. I learned that Melissa had disappeared from Cora. She came into work and plopped own the paper, the Courier Journal, which carried the story. At first, we thought that Melissa had left home because she was tired of her mother running her life. Melissa used to complain about her mother's interference. For example, Amber Mains, who also worked in the call room, and Melissa decided to tryout with a modeling agency. The agency chose Melissa, but her mother would not let her work for the agency. Melissa said her mother told she had to get her education first, and then she could make a decision about a career in a job like that. 

12. Cora asked me if we should call the police. At first, we did not want to get involved. However, that night or the night after, Cora telephoned Montgomery County Sheriffs Department and told them that she worked with Melissa and said Melissa had received from life-threatening phone calls. The following day, two detectives came out. one was tall and chunky. The other was shorter. Both officers had dark hair and appeared to be 30-40. 

13. The first question the detectives asked us was, did we know Melissa? We said, Yes. The very next thing they said was "Tell us about the phone calls." I told them what the caller said. I told the detectives that the calls started about a week ahead of the night on which Melissa broke down, and I told them about that Melissa broke down crying one night and that I took the call meant for her. I told the detectives what the caller said; that he threatened to strangle and choke the life out of Melissa and that he threatened to rape her and watch her die. I remember telling them exactly that the caller said he was going lick her cheek and kiss her lips just before she died. I also told them the detectives about the man Melissa was so scared of who had picked her up those three times at League Line Resort. 

14. I also told the detectives that Melissa was dating Larry Swearingen, and that he might know where she is. I knew Melissa was dating Larry because she told me. At first, I thought now way [sic], and used to kid her about dating him. Melissa said that she liked him because he made her feel herself and was easy to talk to. 

15 Melissa had a number of boyfriends during the time I knew her. 

16. We followed the papers and the searches they reported, and thought nothing about her being dumped in the Sam Houston National Forest. That is, we didn't think that was where her body would turn up. I went to five mile point, where the body was eventually found, in between the time Melissa disappeared and before her body tuned up. It was a very popular place to go, even in the winter. In fact, I went to five mile point on December 31, 1998, New Years Eve, with a group of friends. There was another group from, I believe, Huntsville, already partying. We did not see a dead human body at any time. 

The sheriff's department determined that the person who waited for Melissa outside her place of work was Robbie Groves. Robbie Groves turned out to be Larry Swearingen's cousin. When, much later, Lisa Roberts was shown a picture of Robbie Groves, she confirmed he was the person she had seen. The sheriff's department investigated and dismissed Groves as a viable suspect. No one, however, established if Robbie Groves was the same person who called and threatened Melissa on the phone. The mysterious caller, the person who threatened to choke the life out of Melissa Trotter, remained unidentified.

When Swearingen's appellate team sought another appeal based on the State's withholding of evidence, the State resisted. In its reply to the court, the State belittled Lisa Roberts and her affidavit by declaring that she was not as good a friend as some others who worked with Melissa. However, in its effort to belittle Lisa Roberts, the State actually corroborated her story that Melissa was getting harassing phone calls. More significantly, the State revealed that the caller knew where Melissa went to school.

Further, Lisa Roberts is not credible. Ms. Roberts mentions only Nickie Mains and a "Cora" as co-workers at the League Line Marina. It is Amber Maines and Jamie Irvin who were close to Melissa. Although Amber Maines mentions Melissa was "getting telephone herasments [sic] by a man who knew where she worked, her name, where she went to school," Amber states "It happend [sic] a couple of times, then it stopped."

The State was aware that the caller knew where Melissa went to school, and the State was aware that the caller had threatened to choke the life out of her. Given that Melissa disappeared from her school, and given that she was later found strangled, the evidence was clearly exculpatory. The State made no apparent effort to justify its withholding of this exculpatory information from Swearingen's trial and appellate attorneys.

The State was aware it had a moral, ethical, and legal obligation to provide the information to the defense. They chose not to do so. They chose instead to suppress the information and, when caught, dispute that the State's behavior was grounds for an appeal.

Remarkably, in its plea that the court simply ignore the State's transgressions, the State explained it knew Robbie Grove was not the murderer, in part based on Grove's DNA. His DNA not match the DNA from the blood flakes the State had previously dismissed as inconsequential.

The [Grove] file folder also contains a consent to search for blood, and an evidence sheet reflecting that the blood was sent to the Department of Public Safety Laboratory in Austin for DNA analysis and comparison with the blood found under Melissa's fingernails. ... "The DNA profile from the nail scrapings is inconsistent with the victim, the suspect and Robbie Lynn Grove. Ms. Trotter, Mr. Swearingen and Mr. Grove can be excluded as being contributors of this stain." ... 

Mr. Grove was eliminated as a suspect in this case, and Applicant [Swearingen] knows that fact.

The irony would be delicious if a person's life were not at stake.

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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