By Chuck Lindell
AUSTIN AMERICAN-STATESMAN STAFF
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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."
Prosecutors disagree, saying compelling evidence ties Swearingen to the crime, including a match between the panty hose leg found around Trotter's neck and the stocking remnant found in a trash dump next to Swearingen's mobile home. Also, hair and fibers show Trotter had been in Swearingen's truck and mobile home in Willis, about 40 miles north of Houston.
But in court briefs seeking to keep Swearingen's execution on track, prosecutors do not attack the conclusions by the four pathologists beyond labeling them "opinion evidence based on experts' second-hand review of others' work and photographs."
One of those pathologists, however, did Trotter's autopsy.
In her original report, Dr. Joye Carter determined that Trotter's strangled body had lain in the Sam Houston National Forest outside Conroe for 25 days — coinciding exactly with the date of Trotter's disappearance from Montgomery County Community College, Dec. 8, 1998. Witnesses said Trotter left the campus library that day with Swearingen, whom she met two days earlier.
The timing was important because Swearingen had been in jail since Dec. 11 on outstanding traffic warrants.
But faced with conclusions from other pathologists that her 25-day time of death defied scientific analysis and common sense, Carter recanted her findings in a 2007 affidavit. "Ms. Trotter's body was left in the woods within two weeks of the date of discovery" on Jan. 2, 1999, she wrote.
Reassessment of Trotter's autopsy began late in Swearingen's appeals process when a defense pathologist noticed that Carter found an intact spleen and pancreas.
Both organs liquefy quickly after death, prompting a more thorough review:
• Five recently discovered slides of heart, lung and nerve tissue from Trotter's autopsy revealed intact nuclei and red blood cells, said Dr. Lloyd White, Tarrant County deputy medical examiner.
Red blood cells break down within hours, and nuclei in heart cells break down within days, White said.
Also, levels of bacteria indicated the body had not been frozen or preserved, he said.
White's conclusion: Trotter had been dead for two or three days before her discovery.
• Trotter's mucosa — fragile tissue in the stomach and intestines that quickly disintegrates after death — was intact, noted Dr. Glenn Larkin, a North Carolina pathologist.
The condition of the mucosa indicates with "medical certainty" that Trotter had been in the forest for less than 10 days and more likely three or four days, Larkin concluded.
• Trotter weighed 109 pounds at a doctor's visit shortly before she disappeared, but her body weighed 105 pounds, a 4 percent decline. Larkin concluded that a body will lose up to 90 percent of its weight in less than 25 days under temperatures endured by Trotter's body: average highs of 62 and lows of around 40.
• Unlike a body left outside for 25 days, Trotter's showed no sign of bloating or perforated intestines. Her clothes were unsoiled and slipped easily from her body during the autopsy. There was limited scavenging by animals in a forest inhabited by feral pigs, vultures and raccoons.
"The following forensic conclusion is therefore not reasonably debatable amongst competent forensic pathologists: Without question, Mr. Swearingen was not the person who left Ms. Trotter's body in the Sam Houston National Forest," Larkin said in an affidavit.
Thus far, only the Texas Court of Criminal Appeals has seen the opinions from the four forensic pathologists.
The state's highest criminal court, however, did not rule or comment on the information. Instead, the court dismissed Swearingen's petition for violating state laws that limit death row inmates to one petition for a writ of habeas corpus unless lawyers uncover information that was not available when the first appeal was filed.
The appeals court has yet to rule on a stay of execution motion that repeats the forensic conclusions.
The opinions from the forensic pathologists also were included in a plea to Gov. Rick Perry to issue a 30-day execution reprieve.
Swearingen also has two federal petitions pending based on the forensic information. He is asking the 5th U.S. Circuit Court of Appeals for permission to bring the findings to a U.S. District Court for review, and he is asking the U.S. Supreme Court to review the case.
Texas Attorney General Greg Abbott has opposed both requests, saying Swearingen has not met federal requirements to pursue an innocence claim and is, in fact, not innocent.
Swearingen has presented no new DNA or indisputable evidence undermining his conviction, only expert opinion that could be challenged under cross-examination if presented at trial, Abbott said in briefs.
In addition, Abbott said, the prosecution's case against Swearingen was convincing: He was the last person seen with Trotter, whose autopsied stomach contained potatoes, which she ate for lunch the day she disappeared. The panty hose link Swearingen to the crime, and Swearingen wrote a letter from jail — in Spanish to divert police attention to another man — that presented a plausible narrative for the killing.
Swearingen's lawyer, joined by the Innocence Project in New York, says he believes he has met the legal definition for an innocence claim: that it is unlikely a reasonable juror would convict him in light of the new evidence.
"Someone else had that girl's body, dead or alive, and threw her in the forest. And that someone wasn't Larry," Rytting said.
Swearingen would be the fourth Texan executed this year.