Larry Swearingen. Photo: Alex Hannaford
Just over a year ago, in January 2012, Texas Governor Rick Perry marked a gruesome milestone: with 239 executions under his belt, he had officially overseen half of all executions carried out in that state since the reinstatement of the death penalty. Since then, Texas has killed fourteen inmates, solidifying Perry’s position as the governor who has presided over the most executions in history. To date, 492 prisoners have been put to death since the state’s death chamber roared back to life in 1982. By the time this issue of The Nation hits newsstands, the number will likely be 493.
Amid so much state-sanctioned killing there is scant official acknowledgment that the state’s capital punishment system is fraught with problems. As the body count rises, nagging evidence points to the possibility that Texas has executed at least one innocent person, and may be poised to kill more. The arson-murder case of Cameron Todd Willingham, killed in 2004, is the best known, but there are many other cases that raise serious questions about the guilt of people on Texas’ death row.
As it moves down the roster of executions scheduled for this year, the state is perilously close to adding another name to its list of potential innocents: Larry Swearingen, whose case highlights a growing tension in Texas between science and the law. Add to that conflict the all-too-familiar problems of prosecutorial bias and tough-on-crime politics, and you’ve got a recipe for wrongful conviction that, when death is involved, can’t ever be remedied.
In Swearingen’s case, the courts have demonstrated little tolerance for scientific questions that are not only central to his guilt or innocence, but that have implications for every single death investigation in the state. Until Texas courts— particularly the state’s highest criminal court, the Court of Criminal Appeals (CCA)—accept that understanding science is key to doing justice, the risk that innocent men and women will be locked up, or worse, is inevitable. And in the absence of such a eureka moment, Swearingen, whose latest execution date was February 27, will die despite serious unresolved questions about his guilt.
Swearingen was sent to death row for the kidnapping, rape and murder of 19-year-old Melissa Trotter, a community college student in Montgomery County, just north of Houston. Trotter disappeared from campus on December 8, 1998. Her body was found on January 2, in the piney woods of the Sam Houston National Forest. She had been strangled, a section of pantyhose knotted around her neck.
Although more than three weeks had passed since she disappeared, police were certain from the beginning she was dead, and equally certain they’d found the man who had murdered her: Larry Swearingen, a 27-year-old married electrician who had been among the last to see Trotter alive. The two were acquaintances and had spoken on campus the day she disappeared. Police arrested Swearingen on unrelated outstanding warrants three days after Trotter’s disappearance; he has been behind bars ever since.
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Swearingen has always said he did not kill Trotter. His claim of innocence is supported by the opinion of a number of influential Texas pathologists—together responsible for thousands of death investigations every year—who say that scientific evidence proves that Trotter had not been dead very long when her body was found. If that’s the case, then Swearingen could not have killed her, since he would have been in jail when she died. The central question— low long Trotter had been dead—hinges on histology samples collected during her autopsy and saved in a paraffin block. Veteran pathologists who have reviewed the evidence agree that the samples of Trotter’s lung, heart and vascular tissues reveal intact structures that would have broken down had her body really been left in the forest for nearly a month.
Even the Houston medical examiner who conducted the autopsy, Dr. Joye Carter, has recanted her trial testimony, admitting in 2007 that the ease with which she was able to weigh and dissect Trotter’s organs made the state’s timeline impossible.
Swearingen has faced the death chamber four times. In 2011, the CCA stayed his third execution date, sending the case back to Montgomery County for a hearing on the science determining when Trotter had died. The hearing lasted nine days, ending in March 2012, and featured experts who testified about the methods of determining a person’s time of death, and explained why well-preserved forensic samples taken from Trotter’s autopsy could only mean she was killed not long before January 2. The final transcripts had not yet been filed—nor had a mandatory hearing been held to determine the admissibility of such expert testimony—when Judge Fred Edwards, who had presided over the original trial, declared the science presented by the defense “junk.” Edwards sent the case back to the CCA, denying Swearingen relief. Last December 12, the CCA allowed Edwards to set another execution date, which he did the following day.
Swearingen’s lead attorney, James Rytting, has filed a motion to get the CCA to reconsider, arguing that the trial judge’s hasty actions, in violation of state statutes, have denied Swearingen’s right to due process.
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In January, the Innocence Project filed an appeal seeking DNA testing in the case. Among the untested evidence that could exonerate Swearingen is the pantyhose ligature, which was certainly handled by Trotter’s killer.
Swearingen has sought DNA testing before, but his most recent request, in 2010, was denied by the CCA. The court ruled that for tests to be performed, he must first prove that the items in question contain biological material—something he cannot do without testing. This Catch-22 prompted Texas lawmakers to modify the state’s post-conviction DNA statute in 2011, broadening the definition of what constitutes “biological material.”
Judge Edwards was ousted in an election last year, and the judge who replaced him has put Swearingen’s execution on hold until the DNA testing request can be decided. Finality, he told lawyers in February, must not trump certainty.
Had Melissa Trotter been killed today, it is hard to imagine that Swearingen would be facing execution without the alleged murder weapon or other evidence first being subjected to DNA testing. The use of science, and DNA in particular, in criminal cases has advanced greatly since 1999. “This is evidence that would routinely be tested if the case was investigated today, and any one of these pieces of evidence could produce a DNA profile that could lead to another perpetrator,” says Bryce Benjet, who is working with the Innocence Project on Swearingen’s behalf. “Regardless of where you stand on the death penalty, I think we can all agree that we should be absolutely certain of guilt before putting someone to death.”
Of course, Texas’ efficient death machinery doesn’t necessarily discriminate between the certainly guilty and the probably or even possibly so. Finality of conviction has long been the force driving justice in Texas, especially as practiced from the bench of the CCA. But DNA has already exonerated forty-seven inmates in Texas—one of them on death row—and inspired efforts to ensure better certainty in convictions, in the state and beyond. Whether the court will accept and apply such science in Swearingen’s case—or in the cases of any of the twelve other inmates scheduled for execution in 2013—remains an open question.
A new database is being called the “Wikipedia of Innocence” for its unprecedented
look at wrongful convictions. Liz Webster reports  (June 12, 2012).