As soon as Rick Perry threw his hat into the 2012 electoral ring, anti–death penalty critics brought up his staggering execution record as governor of Texas: 234 prisoners have been put to death under Perry’s watch, a number of whom had serious innocence claims. Most famous among them is Cameron Todd Willingham, who was executed in 2004 and whose case opened up an investigation that Perry has taken aggressive—and largely successful—measures to squash. But a lesser-known case could also haunt the governor if it reaches his desk: that of Larry Swearingen, convicted and sent to death row for the kidnapping, rape and murder of a 19-year-old college freshman named Melissa Trotter in 1998. Like Willingham, Swearingen was convicted largely on circumstantial evidence and a history of run-ins with the law. But Willingham was convicted based on the inexact science of arson investigations, whose flawed assumptions have been slow to evolve. The scientific evidence in Swearingen’s case, medical experts say, is beyond dispute—and it proves his innocence.
There’s another difference: Swearingen is still alive.
Swearingen was scheduled to die on August 18. But his execution was stayed in late July by the state’s highest criminal court, the notoriously pro-prosecution Court of Criminal Appeals, in order to have the trial court consider new evidence: Histological samples of Trotter’s cardiac, lung and vascular tissue that a growing number of doctors, including well-respected Texas pathologists, say show conclusively that Swearingen could not have killed Trotter.
But is that enough? The Swearingen case has raised questions about the intersection of science and the law: how courts and cops view science, and how decisions are made about what kind of scientific proof is “good enough” to override the type of circumstantial evidence that lends itself to the finality of conviction that Texas courts crave—especially in death penalty cases.
On December 8, 1998, during finals week, Trotter drove to campus for a biology class review at Montgomery College, just North of Houston. That night she failed to return to her parents’ house in Willis, a small town just eight miles away. This was especially odd since her brother, stationed at an overseas Army post, had come home for a break and the family—the two kids and their parents, Sandra and Charles—had dinner plans.
For weeks there was no sign of Trotter. Police repeatedly searched the dank pine woods of the Sam Houston National Forest, which surrounds the northern shores of the man-made Lake Conroe, located West of Willis. On January 2, a group of locals was out searching for firearms that had gotten lost while hunting a few days before—in the same area of woods that police had previously searched. They made a gruesome discovery: the body of a young woman. “At first I thought it was a mannequin,” Raglind told then–Montgomery County, Texas, prosecutor Michael Tiffin. “I mean…you’re not expecting to see a body,” he testified. “I walked up to it…I touched it…. It felt like flesh to me.”
It was the body of Melissa Trotter.
Even though it took several weeks to find her body, police had been fairly certain that Trotter was dead early on. What’s more, they thought they knew who was responsible: Larry Swearingen, a 27-year-old married electrician with a modest history of trouble with the law. Swearingen had been seen talking with Trotter at the college the day she disappeared. The police maintain that Swearingen was the last person to see her alive.
Three days after Trotter disappeared, police arrested Swearingen on outstanding warrants. After her body was found, Swearingen was charged with capital murder—according to the state, Swearingen kidnapped, raped and then murdered Trotter by strangling her with a single leg of pantyhose, cut from a pair, before dumping her body in the forest. Prosecutors sought, and got, the death penalty.