The Houston Chronicle Editorial Board says there is enough “Room to Doubt” to justify a stay of execution from Governor Perry for Larry Swearingen, who is scheduled for execution in Texas on Jan 27.

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.

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.

The Texas Court of Criminal Appeals correctly stayed Swearingen’s execution last year on the basis of the new evidence. It inexplicably later denied his appeal for a new trial without addressing the seeming impossibility of his involvement in the woman’s killing.

The inmate’s attorney, James Rytting, is currently working on a new appeal with the assistance of the New York-based Innocence Project. They are seeking DNA testing of the pantyhose and blood samples. Rytting told the Chronicle’s Lisa Falkenberg that despite the contradictions, prosecutors continue to spin far-fetched theories, such as the possibility that Swearingen had refrigerated Trotter’s body and then had an unknown accomplice dispose of it while he was jailed.

Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told Texas Monthly that “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

He may not be a saint, but Swearingen does not deserve to die for someone else’s crime.

Governor Perry should halt the execution to allow more testing that may exonerate the convict and point toward an at-large killer.

Swearingen, slated to die Tuesday in college student’s 1998 murder, was in jail at time, 4 now say.
By Chuck Lindell
AUSTIN AMERICAN-STATESMAN STAFF

Link to Article

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.

Attorneys for one of the death row artists who was in our 2006 art show “Justice for All?” Artists Reflect on the Death Penalty“, Khristian Oliver, on Jan 5, 2009 asked the U.S. Supreme Court to review a lower court opinion (PDF) rejecting their claim that jurors’ use of the Bible in deliberations violated Oliver’s constitutional rights.

From an IHT story:

“This is headed toward a showdown on a very fundamental question on the use of the Bible,” Winston Cochran, Oliver’s lawyer, said.

At issue is a verse in Chapter 35 of Numbers which, in the New American Standard Bible, reads: “But if he struck him down with an iron object, so that he died, he is a murderer; the murderer shall surely be put to death.” Other versions of the Bible have similar passages, some of them referring to an “iron rod” as the weapon.

Defense lawyers interviewing jurors after Oliver’s capital murder trial discovered jurors had Bibles with them during deliberations.

At a state district court hearing two months after the trial, four jurors testified about the presence of Bibles in the jury room and gave varying accounts, ranging from one Bible to several being present. One juror testified he and fellow jurors carried the books with them because they would go to Bible study in the evenings following the day’s court proceedings,

Another juror testified any reading from the books came after they had reached a decision. A third said the reading of Scripture was intended to make people feel better about their decision.

“What do you expect them to say?” Cochran said. “Some judge is scowling at them. Are they going to come in there and say they’ve just ruined your five-week death penalty trial?

“It’s error, absolutely error. To me, if there’s any doubt about it, you ought to either just commute the guy to life or do a new punishment hearing. The sensible thing would be to commute it to life.”

Oliver is at a Texas Department of Criminal Justice prison where inmates undergo treatment for psychiatric conditions and could not be interviewed.

Below is the artwork that Oliver had in the show.

Below is a map of all executions in the U.S. since 1977. It is updated as of March 25, 2011. If you can not see the map below, click here. The map depicts 1,240 executions, but the total is 1,243 including three carried out by the federal government that are not represented in the map.

We were wondering why Jose Briseno’s executon was stayed and moved from this month to April 7. The Death Penalty Information Center says that they learned in a communication from Briseno’s lawyer that the reason was to give time for his penpal in England to visit him before his execution.

Texas death row inmate Jose Briseno was issued a stay of execution by a Texas judge so his pen-pal from England could fly to the state to meet him before he was executed by lethal injection. Briseno’s attorney, Richard Burr, said the stay “had to do with Jose’s extraordinary ability to reach out to people all over the US and the world–as a pen-friend–to offer support and kindness.”

(Source: communication from R. Burr, attorney for Jose Briseno, Jan. 16, 2009).