Four pathologists back death row inmate's innocence claim

[Judi Lynn]

Source: American-Statesman

Four pathologists back death row inmate's innocence claim
Swearingen, slated to die Tuesday in college student's 1998 murder, was in jail at time, 4 now say.
By Chuck Lindell

AMERICAN-STATESMAN STAFF
Saturday, January 24, 2009

Four forensic pathologists agree that Larry Swearingen, set to be executed Tuesday, could not have committed the 1998 murder that sent him to death row.

The four include the medical examiner whose testimony helped secure Swearingen's guilty verdict. That medical examiner now says college student Melissa Trotter's curiously preserved body could not have lain in the East Texas woods for more than 14 days — and probably was there for a much shorter time.

The results mean Swearingen was in jail when the 19-year-old's body was left behind, the pathologists say.

"It's just scientifically impossible for him to have killed the girl and thrown her into the woods," said James Rytting, Swearingen's appellate lawyer. "It's guilt by imagination."



Read more: http://www.statesman.com/news/content/news/stories/local/01/24/0124swearingen.html

[elleng]

1. This is #1 reason

there should be NO DEATH PENALTY.

PEOPLE MAKE MISTAKES.

[JayMusgrove]

11. Exactly! I have to agree, and every other civilized nation

realizes the fallibility of mankind, and the possibility of error. NOT so in Texas or so many states.

[varkam]

17. Though, according to some here on DU, those are just "unfortunate accidents"

Can't allow that to get in the way of a good killing, now can we?

[Richard Steele]

26. Make no mistake: this was no mistake.

There was no "mistake" here...just a DA with an eye toward
a political career who needed a PATSY to close a high-profile case.

But I -do- agree with your premise: once-in-a-million HUMAN ERRORS
are reason enough for any society that can do basic mathematics
to abolish the Death Penalty.

Heck, I'm the 3rd-smartest person I've ever met,
and I make mistakes every damn day, knowhutImean?

[WheelWalker]

52. I will never understand

why they kill people to show people that killing people is wrong.

[Judi Lynn]

2. Room for doubt; Convicted murderer’s execution should be stayed pending reconsideration of evidence

Room for doubt
Convicted murderer’s execution should be stayed pending reconsideration of evidence
Copyright 2009 Houston Chronicle
Jan. 22, 2009, 11:45PM

Larry Ray Swearingen has lived on Texas death row for eight years, convicted of the rape-murder of a Montgomery County coed in 1998. He is scheduled for execution by lethal injection in Huntsville next Tuesday, despite the fact that a growing body of evidence indicates he could not have strangled 19-year-old Melissa Trotter and dumped her body in Sam Houston National Forest.

With the inmate facing an irreversible sentence — capital punishment — it is imperative that Texas Gov. Rick Perry stay the execution to prevent the death of a possibly innocent man.

While plenty of circumstantial evidence indicated Swearingen, a convicted rapist, was a logical suspect, forensic facts not presented at his trial point elsewhere. Trotter’s body was discovered 10 years ago on Jan. 2, nearly a month after her disappearance from the Montgomery College campus in Conroe.

However, Swearingen was jailed on traffic warrants three days after the woman went missing. Although prosecutors theorized that Trotter was killed and her body dumped in the forest the day of her disappearance, the corpse was amazingly well preserved when discovered. Six physicians and forensic scientists who reviewed the evidence concluded that the victim died well after Swearingen’s arrest.

Former Harris County Chief Medical Examiner Joye Carter, who testified against Swearingen in his trial, reexamined the physical evidence and has concluded that Trotter’s death occurred at least a week after Swearingen was taken into custody.

More:
http://www.chron.com/disp/story.mpl/editorial/6226203.html

[struggle4progress]

3. Convicted murderer's execution should be stayed pending reconsideration of evidence

Room for doubt
Convicted murderer’s execution should be stayed pending reconsideration of evidence
Copyright 2009 Houston Chronicle
Jan. 22, 2009, 11:45PM

... Swearingen was jailed on traffic warrants three days after the woman went missing. Although prosecutors theorized that Trotter was killed and her body dumped in the forest the day of her disappearance, the corpse was amazingly well preserved when discovered. Six physicians and forensic scientists who reviewed the evidence concluded that the victim died well after Swearingen’s arrest ...

One expert, using a technique familiar to viewers of the CSI TV series, confirmed that finding by dating the development of insect larvae in the victim’s body.

Other exculpatory evidence included blood samples found under Trotter’s fingernails and a pubic hair recovered from a vaginal swab that came from someone other than Swearingen.

The strongest evidence linking the inmate to the murder was the fact he was seen with Trotter on campus the day she disappeared, and a torn stocking matching a piece used to strangle her was found at the man’s trailer. Oddly, the hose turned up after the trailer was twice searched by Montgomery County deputies. Lawmen did not disclose during the trial that Trotter had received phone threats from another man ...

http://www.chron.com/disp/story.mpl/editorial/6226203.html

[depakid]

4. So the real perpetrator's still out on the streets...

Way to go Texas!

[surrealAmerican]

32. We don't know who the murderer was, ...

... and after 10 years, we probably never will.

[depakid]

49. That's what happens every time someone's wrongly convicted- or coerced into a guilty plea

Unfortunately most people are blind to the fact that this is a PUBLIC SAFETY & LAW ENFORCEMENT ISSUE.

[struggle4progress]

5. The Science of Murder

By Michael Hall
Jan 10, 2009, 20:29

... It wasn’t until Swearingen was given his first execution date, January 24, 2007, that he began to get medical science on his side. First came the bug guys, or forensic entomologists, who use insect larvae found in corpses to figure out time of death. On January 22, appellate attorney Rytting filed a habeas corpus appeal anchored by the testimony of an entomologist who said that, based on temperature reports that said the average temperature that month was 50 degrees with highs in the mid-70’s, the earliest those maggots could have begun colonizing her body was December 18—a week after Swearingen was put in jail. (Swearingen himself, while studying the temperature data, had found a crucial error in the numbers that showed it had actually been warmer than the climatologists had initially reported.)

The CCA stayed the execution and called for a hearing to look into the matter in the trial court. At the hearing, another entomologist, James Arends, testified; he noted that there was no evidence of maggot colonization in the anal and vaginal regions, as would be expected in a body left in the wild for so long. He also pointed out that the body hadn’t been picked on by the thousands of wild pigs, crows, and vultures that live and feed in the forest. (Or, as he wrote in an affidavit, “It is very common to find near to complete skeletonization, and bones scattered over a wide area by scavengers, in cases where remains of missing persons are not recovered for significant periods of time after being left in locations such as the location in this instant case.”) Arends’s conclusion? Trotter’s body had been there no longer than a week.

Pathologist Luis Sanchez, the current Harris County medical examiner, also testified at the hearing, saying that a body in the forest 25 days would show more decomposition, color change, bloating, and skin slippage. He also explained that the autopsy showed Trotter’s internal organs had been in good enough condition to be pulled out and sectioned; however, organs begin to break down upon death. The pancreas, for example, usually liquefies completely within 24 to 48 hours. Sanchez’s conclusion: The body hadn’t been in the forest for more than 14 days.

Unbelievably, the CCA denied that appeal without even commenting on the forensic science. Rytting filed another habeas appeal last year that included affidavits from Larkin and Lloyd White, the Deputy Tarrant County Medical Examiner. Larkin said, “December 23 is the soonest that Trotter’s body could have been left in the woods, which is to say, twelve days after Mr. Swearingen was incarcerated” ...

http://axisoflogic.com/artman/publish/article_29268.shtml

[jeff30997]

6. "Swearingen was in jail when the 19-year-old's body was left behind"

I took them 10 years to figure that out? :banghead:

[sasquatch]

24. Well it is Texas

[Shardik]

7. This happens far too often.

As mentioned above, this is an example of why we need to do away with the death penalty.

[DrCory]

9. Nice to see another Adams fan hereabouts N/T

[Shardik]

14. I wondered if anyone would catch the avatar and name...

Wonderful writer.

[lostnotforgotten]

8. Rick "Good Hair" Perry - Bush's Protege Will Decide His Fate - Can't Guess How He Will Decide

eom

[MannyGoldstein]

10. Using "Science" As "Proof"

They'll have to do better than that.

Perhaps if a minister says that God told him Swearingen is innocent. Now *that* would be reliable proof.

[JayMusgrove]

12. Only in Texas! n/t

[Baby Snooks]

23. Only in Texas indeed...

Prosecutors in Texas never make mistakes and when they do the Special Prosecutor's Assistance Division of the Attorney General's Office is right there to back them up. Usually by helping them cover up. Which is usually what happens when you contact the Attorney General about prosecutorial misconduct. They contact the prosecutor and tell them about the complaint instead of investigating it.

Larry Swearingen is just another example of how those who cannot afford justice in Texas end up with no justice.

[acmavm]

18. I think that someday we'll discover all the faith that we've put in 'forensics'

will turn around and bit us in the ass. Some of this science is pretty shaky. And I notice that it allows for people to be convicted on some dicey circumstantial evidence. You can get an 'expert' up on the stand who will testify to anything.

I hope to God Perry does the right thing.

[Buck Laser]

37. The likelihood of Perry doing the right thing is close to nil.

[madrchsod]

13. facts mean nothing in the texas court system

several months ago some white texans ran over and drug a black man to his death and it was ruled an accident...

[Towlie]

15. Hang 'Em High

Captain Wilson, Cooper Hanging Party: "All right, now that makes three mistakes we've made. The money, we hung an innocent man, and we didn't finish the job. We can't undo the first two... but we can still finish the job."

http://www.imdb.com/title/tt0061747/quotes

[edc]

16. Procedure

A lawyer friend of mine once told me that the legal system operates on the presumption that strict adherence to procedure and precedent produces justice. He did not explain why, if that works, the outcome is so inconsistent.

[Ms. Toad]

44. What your friend forgot

is that it also depends on equivalent advocates each fighting vigorously for their position.

In the criminal justice system, absent the the few well to do defendants who can hire their own attorneys, individuals accused of capital offenses are served by public defenders who are grossly underpaid and have access to far fewer resources than their counterpart public prosecutors. Defense attorneys who have slept through parts of death penalty trials have been found, and affirmed by the U.S. Supreme Court, to have provided competent counsel because they did not sleep through the important parts.

[kegler14]

19. This is proof we need faster executions...

otherwise we'll keep finding these people innocent. Dang it!

[wial]

20. also, as should be obvious

anyone capable of committing murder is equally capable of pinning the crime on someone else. Not acknowledging that uncertainty is a crime in itself. Any lawyer or judge or politician who refuses to see that should be kept as far as possible from public life, themselves. Serving the public is a real responsibility not appropriate for moral and intellectual infants like those who support the death penalty.

[scytherius]

21. And THIS is why there should be no death penalty

The Right likes to scare people by pointing to some horrid serial killer and saying that the Left wants to coddle them. Another Right Wing lie for it's mentally challenged base. I used to represent people for whom the death penaly was tailor made and given a 45 and 2 seconds thought I'd be tempted to carry out the execution myself. However,

1. The law makes mistakes. It is never, ever worth killing someone's father, mother, child, etc. so that you can execute the truly evil.

2. The state should just not ever have the power to put people to death. Ever.

The mentally challenged Right can not grasp this basic, simple, concept. Execute a few of them by "mistake" and maybe they'll wake up . . . though you and I both know that isn't true. What do you expect from a group that believes the Earth is 6k years old?

[mvd]

31. I'm on your side

No DP. I apply the same self-defense standard - only take action when there is an IMMEDIATE threat to you and the community. Life in prison better suits my moral standards and other reasoning.

[aikoaiko]

22. As a DP supporter, there really needs to be more certainty in guilt when applying such a sentence.

May justice be done.

[thesquanderer]

25. two standards?

re: "there really needs to be more certainty in guilt when applying such a sentence."

Are you suggesting we can put someone in prison if we're 99% sure they're guilty, but only kill them if we're 100% sure? The problem is that we convict if someone is guilty beyond "reasonable" doubt, there's no additional level of conviction for being "really, really sure." If there's doubt, they're supposed to go free. How can you sentence someone and say that there's no reasonable doubt, so we can put them in prison, but there's still enough doubt not to kill them?

If anyone claimed at a sentencing trial that there was enough doubt that the person's life should be spared, they would essentially be saying that there is enough doubt that they should be set free. How would you get around this? A system that permits imprisonment if you're "probably" guilty?

[Still Sensible]

27. I like that suggestion

[aikoaiko]

30. 99% sure they're guilty, but only kill them if we're 100% sure? more or less

Reasonable doubt is not the same thing as certainty, but when the evidence is overwhelming one could be certain.

Certainty is not required for conviction or sentence, but I would like to see certainty applied to DP.

The justice system works with different levels of suredness for different legal stages all the time.

Certainty still doesn't garuntee mistakes, but I think it would give juries and judges more lattitude for determining the best sentence.

[iconicgnom]

33. Show me a lynching party where the lynchers don't feel "certain"

and I'll show you a fiction. It's well known that feelings such as "certainty" in these matters tends to vary (statistically) according as omnipresent societal prejudices and leanings. There's no way to eradicate such prejudices. But even more basic than the influence of prejudice on our sense of reality, there's just no way for a sense of "certainty" to be calibrated (this isn't mathematics) in any event.

Here's a wiki on a case recently in the news in Canada:
http://en.wikipedia.org/wiki/Steven_Truscott

[aikoaiko]

34. There is no way for any level of probability of guilt to be calibrated

But there definately cases where people are certain about guilt and other cases where the state merely met the burden of beyond a reasonable doubt.

Of course these are all judgment calls and errors will not be eliminated completely, but if certainty was the standard for DP, I'm sure some of these cases of death row exoneration wouldn't happen.

[iconicgnom]

36. So you're comfortable drawing that line?

For a fairly obvious example, consider the US south in the 1930's or thereabouts. (Please don't say "oh, that's different")

Consider the case of a poor black defendant charged with the murder of a young white blonde female.
Consider the case of a young white blonde female charged with the murder of a poor black male or female.
Do you really think the subjective sense of "certainty" would be drawn along the same lines in both cases, if e.g. there were a white jury, or if there were a black jury, and so on with a list of variations? Do you really think that given the same evidence, in every case, there'd be a sameness in sense of "certainty"?
Do you really think that there is a sameness when prosecutors consider the nuance between charging a defendant with a capital/non-capital crime, in all the different cases?

[aikoaiko]

38. Yes, I can tolerate an imperfect justice system.

One where sometimes the innocent are found guilty and guilty are found not guilty even if tragic results occur from those wrong decisions.

Short answer to your specific situations: Even though there are societal biases and prejudice, inequalities and differences, the certainty of the actor of a horrendous crime can still be discerned.

[thesquanderer]

41. correcting mistakes

re: "Yes, I can tolerate an imperfect justice system. One where sometimes the innocent are found guilty"

It's good that you can tolerate that, because being imperfect humans, it's probably the best we can hope for. I don't think we could devise a system where mistakes were impossible.

But if we accept that mistakes will happen, then isn't it important that we try our best to be able to correct them? An innocent person sentenced to life in prison can eventually be freed (if exonerating evidence is later found), while an innocent person who is executed can never be brought back to life.

What harm is done by *not* executing people? (As long as we keep them locked up.)

Now compare that to the harm that is done through the potential to execute innocent people.

[Zhade]

43. Wow, you're quite cavalier with other people's lives.

I wonder how the fuck you sleep at night.

[aikoaiko]

45. Its my life too that I'm intrusting to the same justice system.

I sleep well.

[Gwendolyn]

46. You're talking about animals who commit crime and are without a doubt guilty.

Like serial killers or mass murderers. Those who lack empathy, will never feel remorse, or worse, get to sit in prison and relive their disgusting crime as fantasies over and over. Yes, there is hardly a reason to keep these people alive, since they are not human, can never be rehabilitated, and will only enjoy fantastical masturbational pleasure their murders elicited, as time goes on in prison. Well, there is that, but still, they are locked away, and the chance that an innocent could be killed trumps that.

[iconicgnom]

48. Not really. If you were wrongly convicted and facing a set extermination date

you wouldn't be so sanguine. Your sleep wouldn't be untroubled.
It's just failure of imagination on your part that allows you to make that claim.

[aikoaiko]

50. I'm really not sanguine about this.

[iconicgnom]

51. OK.

[thesquanderer]

40. certainty

re: "But there definately cases where people are certain about guilt"

If a case goes to trial (as opposed to a plea deal or an admission of guilt), there is a defense. Sometimes the defense doesn't deny that the person commited the crime, but they claim some rationale... self-defense, diminished capacity, whatever. In these cases, the jury decides how "reasonable"--i.e. believable--the explanation is based on the evidence at hand... but there is rarely going to be certainty. You not only need to be certain the person did it (which may or may not be in dispute), but also be certain that any mitigating explanation is false. Not easy.

[Catherine Vincent]

28. No death penalty

Take a look at this article. This woman on her death bed confessed to two murders way back in 1967. The article doesn't mention anything but I wonder if they tried and convicted someone for these murders?

http://www.cnn.com/2009/CRIME/01/23/deathbed.confession/index.html

[bertman]

29. Based on he pathologists' testimony the execution should be stopped and a deeper

investigation conducted.

If you read the followup comments to the article in the link there were several entries by a woman who states that Larry Swearingen had previously kidnapped a woman, held her prisoner, and repeatedly raped her. I'd like to know if this is true or even if it's highly likely that it happened.

There are also her statements regarding the mother of the convicted man power-washing the inside of his vehicle after his arrest. Why would anyone do that unless they think there may be incriminating evidence found in the vehicle. There was incriminating evidence found at the site of his residence.

If this man did previously kidnap and rape another woman while holding her for days, and if he was the last person with whom this woman was seen, and if HIS MOTHER were somehow involved in this (weirder things have happened in these fucked-up cases), is it possible that they were holding the woman prisoner and held her until days after Swearingen was jailed, then killed her and dumped her body?

I'm just saying that there may be more to this than an innocent man being railroaded.

Edit for typo.

[George_Bailey]

35. It doesn't surprise me

...that this is taking place in Texas, the Kansas City stockyards of the US penal system.

[Aristus]

39. Yep, they do loves their killin's down there...

Welcome to DU, George Bailey. We're the Building & Loan of the progressive Internet. B-) :hi:

[Gwendolyn]

42. If someone killed one of mine, I would want them tortured a thousand times worse...

... then a slow and screamingly painful death. That would be my wont and I would be justified in seeking to avenge my loved one's death.

Luckily, society is supposed to take my feelings into consideration, but mete out punishment based on values.

There is nothing redeeming about the death penalty. Satisfaction is just a function of what's available in terms of punishment. When there is no death penalty, people are satisfied with the even worse punishment of keeping someone isolated and away from the civilized. Most western countries have done away with it, basically because we've instituted so many legal options, the deterrent factor ceases to "scare" anyone. It only works in countries where the trial happens, and then two weeks later, the accused is taken out in public and beheaded, hanged, stoned, etc. So, our death system is flawed anyway.

I can't imagine that going to endless hearings over a ten, twelve-year period and then sitting in a room witnessing an execution with a few others helps anyone come to terms with a loved one's death. There is no closure.

There is also something really troubling about employing people to perform this duty. It can't be a rewarding experience to be an executioner, and must play heavily on the minds and hearts of those who do it.

If I was the victim of a horrible, pain and fear-filled rape/serial killing, I would prefer it if my murderer was put into prison forever and shunned, rather than have a bunch of people picketing on either sides of the fence fighting over whether or not his punishment was fair. I would rather they locked him up, forgot about him, and remembered me.

[George_Bailey]

47. There's a petition

that's provided by Firedoglake and at my place that'll get sent to Gov. Rick Perry and others.

GB
http://welcomebacktopottersville.blogspot.com/2009/01/guilt-by-imagination.html