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Cranky Cuss

Cranky Cuss
Location
Ossining, New York, United States
Birthday
February 28
Bio
I am the author of "Send In the Clown Car: The Road to the White House 2012," currently available on Amazon and CreateSpace. I'm currently semi-retired after 23 years in a corporate environment. My motto: The conventional wisdom has too much convention, not enough wisdom. Corollary: Even Einstein was wrong sometimes, and you're not Einstein.

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JANUARY 29, 2013 12:17PM

Is Texas Executing an Innocent Man?

Rate: 30 Flag

On January 2, 1999, hunters in Sam Houston National Forest in Texas discovered the body of Melissa Trotter, a 19-year-old Lone Star College student who had been missing since December 8. She appeared to have been strangled with one leg of pantyhose.

Investigators had already settled on Larry Swearingen as her killer. Swearingen had a police record and was, in fact, arrested three days after her disappearance on outstanding traffic warrants, and was still in jail the day Melissa’s body was discovered. He was acquainted with the victim; she had canceled a lunch date with him the day before her disappearance. Two witnesses ID’d him in a police line-up, claiming that they saw him sitting with her in the college library that day. Fibers from her jacket were found in the front seat of his truck; police theorized that Swearingen abducted her, and that when she refused his sexual advances, he assaulted and killed her before dumping the body in the park.

There was some damning evidence. Although neither Swearingen nor his wife smoked, a pack of Marlboro cigarettes – Melissa’s brand - and a cigarette lighter were found in his home. A few days after Melissa’s body was found, Swearingen’s landlord discovered half of a pantyhose in a dumpster near the accused’s trailer. Even worse, while in jail Swearingen wrote a fake letter purporting to be from the true killer.

It is no surprise that a Texas jury convicted Swearingen of Melissa Trotter’s murder. After three stays of execution, Swearingen is now scheduled to get a lethal injection on February 27. However, many people have proclaimed Swearingen’s innocence and the Innocence Project has taken up his case. Nine forensic pathologists and entomologists have declared that Swearingen could not have committed the crime. Furthermore, when you examine the seemingly convincing circumstantial evidence closely, it does not stand up to scrutiny.

Two witnesses testified that Swearingen sat with Melissa in the school library between 11:30 am and 1:30 pm on December 8. However, his cell phone records show he was not on campus during that time frame, part of which was spent getting his car repaired. In addition, a professor testified that Melissa attended his review class during that time. The witnesses describe a blond-haired man; Swearingen’s hair is black. The police lineup was rigged; Swearingen was wearing prison garb while the others in the lineup were not. Even so, one of the witnesses could not identify Swearingen in the courtroom and had to be coached on the stand by the prosecutor. (Swearingen admits seeing Melissa Trotter briefly in the college library shortly after 1:30 on December 8, but insists he did not speak to her.)

A pack of Marlboro cigarettes, Melissa Trotter’s brand, was found in Swearingen’s home. Under questioning, however, Swearingen’s wife admitted that she was a secret smoker, a habit she was hiding from her husband, and that her brand was Marlboro. DNA tests on the cigarettes and the lighter excluded Melissa Trotter.

The landlord’s discovery of the pantyhose seems fishy. Investigators had previously searched Swearingen’s trailer thoroughly twice and found nothing. It has all the earmarks of planted evidence, either by the cops or someone looking to frame Swearingen. Evidence that the two halves are part of the same pair of pantyhose is flimsy.

However, what really makes the case against Larry Swearingen look weak is the forensic evidence: it’s all exculpatory. Blood was found under Melissa Trotter’s fingernails, perhaps the sign of a defensive struggle. DNA tests showed that the blood belonged to a male, but excluded Swearingen. Nor did a pubic hair found in the victim’s vagina match Swearingen.

The strongest evidence for Swearingen’s innocence was the remarkably intact condition of the corpse. Judging by such elements as the presence of bug larvae on the body, forensic experts agree that Melissa’s body couldn’t have been in the park for more than several days. Estimates range from 3 to a maximum of 14, meaning the body was dumped in Sam Houston National Forest long after Swearingen had been locked up. Her internal organs were virtually intact, an impossibility if a body had been dead for 25 days. A corpse would lose 90% of its body weight over that time, but her body weighed only four pounds less than at her last doctor’s visit. (Cold weather could have preserved the body longer, but the average high temperature that December was in the 60s.) According to an article in the Texas Monthly, “Her corpse was not bloated, and police reported no foul smell. In fact, the hunters had initially thought she was a mannequin.” Furthermore, investigators had already searched that area three times.

None of these forensic experts testified at Swearingen’s trial. This demonstrates another reason for many false convictions: the inability of the defense to afford their own experts. (According to Swearingen, it also explains his panicky decision to fabricate a letter.)

At her trial testimony, the county coroner estimated that the body had probably been there 25 days – remarkably, the exact number of days she had been missing. Years later, when confronted with the testimony of forensic experts, she recanted. (She was no longer the county coroner, having moved to Indiana.) In addition, well after the trial, it was learned that the prosecutors had withheld evidence that, at the time of her disappearance, Melissa had been receiving threatening phone calls at her job at a call center, and was possibly being stalked. A co-worker who had picked up some of those calls claimed in a deposition that the voice on the other end was definitely not Swearingen, who had gone to school with her.

A particularly appalling element in this case is the additional charges of kidnapping and sexual assault. There is absolutely no evidence of kidnapping – nobody saw Swearingen and Trotter leave together nor were they seen after their paths crossed in the school library, and the presence of her jacket fibers in his truck is meaningless, since it was acknowledged that they had socialized. The evidence for a sexual assault is flimsy, and none of it points to Swearingen. Why would the state of Texas go to such lengths to file additional charges with little or no evidence? Because without an additional felony, Melissa Trotter’s murder would not qualify as a capital crime.

The Innocence Project, which has exonerated 301 people based on DNA evidence, is asking the state of Texas to perform tests on several pieces of evidence that were never examined, including the pantyhose. The state has refused, and the courts have backed up their decision. (The trial judge, while setting the latest execution date, declared, "I have never been reversed on a capital case by any state or Federal Court. Justice delayed is justice denied.") This should not be a surprise. Although twelve Texas death row inmates have been exonerated, the state still appears to be loath to admit that it could ever have made a mistake and seems indifferent to the possibility that it may execute an innocent man. (There are many people who believe the state has already executed at least one innocent man: Cameron Todd Willingham.)

In TV procedurals like CSI and Law and Order, an occasional episode will show investigators conscientiously retracing their investigations when there is a possibility of a wrongful conviction. This has no relationship to the real world. In the real world, many prosecutors fight tooth-and-nail to block any re-investigation and even when confronted with compelling evidence of a wrongful conviction, deny the obvious.

And not just in Texas. The Innocence Project is also currently fighting for the release of Joseph Buffey, who is imprisoned in West Virginia for a crime he did not commit. Buffey was charged with raping an elderly woman in 2001 and was convinced by his public-defender lawyer to accept a plea bargain. He immediately recanted his confession and pleaded for the DNA to be tested, but the state of West Virginia refused. When the test was finally run in May 2011, it excluded Buffey as the source of the DNA. Yet the state refused to do a CODIS search until more than a year later, when it revealed a match to a man, currently in prison, with a long history of sexual assaults. Still, the state is resisting releasing Buffey, insisting the two men could have worked together, despite the victim’s testimony that there was only one attacker. (She is currently suffering from dementia and unable to testify any further.) A hearing on Buffey’s fate has been delayed until March.

The Swearingen case reminds me of another recent Texas exoneration: Michael Morton’s. Pamela Colloff’s powerful two-part essay last year in the Texas Monthly recounts how Morton came home from work one day in 1986 to find his wife, the mother of his three-year-old son, bludgeoned to death. Investigators quickly focused on Morton as the killer, based mostly on a note he had left for his wife that morning, indicating that he was angry that she had declined to have sex with him the previous night, his birthday. A bloody bandana was recovered from a construction site 100 yards from the Morton home, but investigators declined to test it, deciding it was found too far from the murder scene to be relevant.

Despite Morton’s extensive pleas to test the bandana, the state of Texas refused until 2011. DNA tests revealed that the blood did belong to the victim, but that secondary DNA did not match Morton. A CODIS database search found a match, as well as a match to evidence in a subsequent Texas murder that might have been prevented by meticulous police work in 1986. After years of stonewalling, Texas finally conceded its mistake and released Morton in late 2011.

In addition, it was learned that – surprise! – the prosecutors had withheld exculpatory evidence from the defense, namely a statement by the three-year-old that he’d witnessed the attack, and that the attacker was not his father. The lead prosecutor, who has since become a judge, is currently the subject of a Court of Inquiry to determine if he committed misconduct in the case, as well as an investigation by the state bar.

Additional testing in the Swearingen case would cost Texas nothing more than a little money and a little time. For all I know, the testing may implicate Swearingen, in which case Texas can be confident they have the right guy. However, if you believe – as I do – that he is probably innocent, the testing may reveal the person who actually committed the crime. Nearly everyone - except the Texas prosecutors - agrees that, if Swearingen’s case went before a new jury today, he would not be convicted. Apparently the state of Texas couldn’t care less.

There are many people in the American criminal justice system – lawyers, judges, cops –who are honorable and do conscientious work. Unfortunately, there are also far too many others whose distinguishing characteristic is the arrogant thwarting of justice and of the search for truth. The havoc and pain they cause is a blot on the nation. May they all rot in Hell.

RELEVANT LINKS:

Website devoted to Swearingen’s case, with an Innocence Project petition to be signed

2009 Texas Monthly article about the case

Summary of the case at the website The Skeptical Juror

New Yorker article on Cameron Todd Willingham

Innocence Project report on Joseph Buffey

Texas Monthly article on Michael Morton 

                        swearingen

                                 Larry Swearingen

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Comments

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May they rot in hell after they get a taste of true justice in the here and now. Their conduct is outrageous.
Why Texas is able to execute ANYONE is beyond my understanding. The feds should bar Texas from the practice. This is not the first, and if they are not stopped, it won't be the last. It makes me ill. Thank you for posting this.
Thank God for IPOT but I believe the correct question to ask is: "Is Texas Executing another Innocent Man?" Todd Willingham has already been murdered in this way.
Thanks for shining a light on another dark aspect of our American exceptionalism. This is the main reason why I am against the death penalty.
Why do law schools encourage their graduates to have this arrogant attitude? There are too many lawyers acting thusly for it to be an aberration. Thanks for bringing this out.
The cruel fact is that our justice system is nothing like what we see on the television. The police are under pressure to close cases, DA's don't want reversials on their record and their win/loss record is important to any further career moves they may have in the future. Real truth and justice has very little do to in what has become more of an assembly line endeavor.

The thing is, I have read of cases like this in almost every state in the Union, not just Texas. Chances are the accused in this case is innocent but in the greater scheme of things in our system of justice, that means very little and that is a very sad thing indeed.
No to the Death Penalty. Thank you for this information. I think the landlord did it.
Excellent post, Cranky. ~r
wow. You did amazing research on this. Great piece, Cranky.
Pro-death penalty, but only if the person is conclusively-convicted with DNA and/or other overwhelming physical evidence, not by eye-witness testimony (only) or circumstantial evidence (only).

Good post.
As a resident, this is the aspect of this state that is far and away the worst in my opinion. I cannot imagine how many innocent people we have executed. And the political right does not care. At all.

I'm not a big believer, but God help us all if this is how we behave.
Great story worthy of 20/20 and by God all you have to do is look cross eyed in the state of Texas to be executed. Right or wrong -let's fry them.
HUGGGGGG
I agree that the Feds should step in and freeze executions in Texas and any other state that violated the law in executing a person where there was "reasonable doubt". It has to stop, but Eric Holder appears to be an empty suit.
Well written. Rated.
once you grasp the fact that legal process in the united states is no where close to reliable, either in technique or character, you begin to wonder why so many people are in jail, much less on death row. do they get paid more, if they jail more? i believe they do, and this incentive should be removed.

unfortunately, the usa in general, texas in particular, is not interested in justice.
This is terrifying! Thank you.
I am immeresed in such injustice and trying to keep a lovely human from being buried alive, but so glad to see this. I will be back with much to say(too much?)and will savor every word of this. You are terrific, Cranky. Really. What the justice system has become is nightmare inducing. Pernicious lunatics are running that asylum.
Ok, now I read every single word. How do these prosecutors and judges sleep at night, knowing that they are burying the innocent alive? What is the reward? judgeship, political power. WHAT? Inexplicable to the decent soul. Writing such a measured and intelligent article,is a mitzvah, Cranky. i am crying as i write this and I don't like to cry. May they rot in hell. Please, let there be a hell for those who ruin the lives of the innocent. Stories about not footlong subway sandwiches flood the media, and yet so few about Swearingen and all those who face hell on earth due to vile agendas of prosecutors and judges and dirty cops. did you know that the media won't cover such stories because they fear that they may get sued or face such judges someday? What a disaster , and what a myth is our country.
"DA's don't want reversials on their record and their win/loss record is important to any further career moves they may have in the future. Real truth and justice has very little do to in what has become more of an assembly line endeavor"

Had to quote david mclain: this is the problem. They can't dismiss cases or they don't get promoted. in my case, they lost SEVEN CHARGES that never should have been brought.Jennifer waxler and martin boagas and katie ford and felise kalpakian and kelly boyer (all these clowns for a one count non violent misdmeanor at first) had to WIN. What kind of mentality is that? immunity in the courts allows them to do anything and no one much cares, and they take advantage of that indifference. Texas is bad but so are so many states and something must be done. Thank you , Cranky. innocent people are being murdered and the silence of the masses is offensive.
@Fernsy, not sure your email is working. I sent this link there, but I'll post it here, as well. You might consider getting in touch with these guys: http://californiawatch.org/ They're an offshoot of the Center for Investigative Reporting.
Great post. This is seriously, seriously sick.
Great post, Cranky. Texas is certainly not the only offender in our justice system gone awry, but there is a cowboy-bang-bang-lock-em-up-string-em-up mentality that pervades the courts, sitting judges and a very large number of lawyers here in Texas.

At one time, I was a proponent of the death penalty. No more. As a nation, as a judicial system, we are not responsible enough, nor do we care enough about the truth to hold life and death in our hands.

I've said it time after time, here on this forum and in so many others, our justice system in the US is irretrievably broken. God forbid that you become tangled in their web - odds are they will keep you trapped there. It's big business. And the federal legal system is no better than the state level, so there's no help there.

Thanks for writing this, Cranky. There can never be enough of these kind of stories brought to light.

R
@Matt; Thank you for that link, but I have contacted them. They are not brave enough to address this PROBLEM. Why? it seems implausible that those outside such jurisdictions would not cover such stories, but anytime court corruption is prevalent, the press goes a scurrying. Thanks anyway. They'll come a day.
@Unbreakable: There is no way and no how the death penalty can have any validity considering the current legal system . The system is overrun by monsters and the death penalty cannot stand in such a climate. I too didn't find the death penalty offensive, before. But, when one sees so many cases where DNA exonerates so many on death row it must be understood that the death penalty is not an option. The vast majority of wrongful convictions is due to prosecutorial, police, and judicial misconduct. A culture of win at all cost exists in the prosecutorial realm and too many stupid and corrupt cops and judges let the innocent meet such fates. It is an evil reality that must be exposed. If they don't win they get demoted. Blindly ambitous careerists have destroyed our sytem. As you said, once you are caught in their web, you mostly are a goner. I am the rare rare aberration who fought them till they lost. Now,I am a bitter cow, who is obsessed with justice and injustice. oh well.
That Innocence Project is a great organization. There have been so many wrongful convictions and it seems that it's mostly a combination of the police and the DA wanting to get a quick conviction. Then being too wrapped up in their own glory to own up to having made a mistake. And as Cheshyre says, Swearingen wouldn't be the first.
Well reasoned and presented. Your insight is both needed and appreciated.
This is a hard one to understand. Without knowing more, just the line-up should have been enough for a new trial. But maybe that evidence wasn't used. The case raises all kinds of problems that unfortunately aren't limited to Texas.
Cranky, I could not get myself to finish reading this - the miscarriage of justice, the abuse of the system, was too upsetting. you had me completely convinced that the whole case should have been thrown out half way through the post. I am not in favour of execution at all. This example is one of the reasons why. My husband and I talk about the people in the legal system that conspire to condemn a man to death based on their distortions and outright lies. These people are murderers and should be convicted of this crime. That they are supposed to be agents of justice compounds their crime. I better get off my rant here because I'm about to get real foul mouthed. Let me focus on something good right now - you - for addressing this injustice with the clarity, with the common sense, with a quest for truth that should have been the job of the court that prosecuted Swearingen. You wrote with heart and intelligence. If I ever need help to communicate my innocence, I'm calling you.
Rated and very much appreciated.

It is very disturbing, to say the least, that someone's life or death hinges on little more than egos, people refusing to entertain even the idea that they might have been wrong.
Thanks for sharing this story. I have no confidence in the justice system of Texas in particular. Disgusting.
'The lights went out in Georgia' and many other state a long time ago.

R.
Great post, Cranky. This is why I oppose the death penalty.
It made me cry to read your post. I cannot imagine this kind of horror happening to someone I love. Thank you for exposing these injustices. I'll go now and send a contribution to the Innocence Project. We all must do something; keep up the good work.

Lois Cowan
Great reporting about a truly awful situation. I hope the new tests will be allowed, somehow. How awful.
I would bet a years salary that THIS WILL HAPPEN! It us unfortunate but in Texas the more exposure they get for these things the more they are apt to do it.
both of you texas monthly links do not work
Sorry, me again
I just read this:
At a hearing held on January 30, 2013, the new 9th state district court judge Kelly Case issued an indefinite stay of execution, stressing the need for "certainty over finality", so additional DNA testing can be done.
The execution date was set prior to the above correct?