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.