Texas v Larry Swearingen
From George Bush Intercontinental Airport in Houston, the most direct route to the Allan B. Polunsky Unit takes you along the back roads of San Jacinto and Polk counties, through dirt-poor trailerland, past campgrounds lined with nominally mobile homes. Hand-painted signs announce ‘we have minnows’ and offer catfish, live or dressed.
Almost three hundred men convicted of capital crimes in the state of Texas are incarcerated at the prison, in a dedicated wing that everyone calls death row. For the past thirteen years, since being found guilty of murdering a young woman called Melissa Trotter, Larry Swearingen has been kept in solitary confinement, in an eight-by-twelve-foot cell with a slit of a window above head height; even if he stands on his bed, grass and barbed wire are all he can see. Twice a week, he is escorted to the prison yard, alone, to pass two hours under the sky. Three times a week, he spends two hours in a central recreation room, where he can play chess, dominoes or Scrabble with other prisoners, through the bars of their cells.
I interviewed Swearingen for the first time in February 2012. A guard brought him in to the visiting area with his hands cuffed behind his back, removed the cuffs and locked him in a cubicle with a steel cage that resembled the stall of an old-fashioned fairground ride. He was heavyset, and his head was shaved. In his wire-rimmed, oval glasses and white prison scrubs, he looked like a hospital orderly about to begin his shift. I was struck by how calm he was, even as he complained about being vilified and locked up for something he insists he didn’t do. ‘The way I look at it, I’m a POW of Texas,’ he said. ‘It’s my army against their army. Anything other and I’d lose my mind in here.’
In Swearingen’s time on death row, two hundred and seventy-two of his fellow prisoners have been executed, eighty-two have had their sentences commuted to life or long jail terms, seventeen have died of natural causes and seven have committed suicide. Only three have been released after having their convictions overturned. At the time we first met, Swearingen’s own execution date had been set, and stayed, three times. In 2009 he had written his last statement, packed up his few belongings and was on his way to the lethal-injection chamber at Huntsville when the stay came through.
My visit to the Polunsky Unit had been arranged by one of Swearingen’s defence lawyers, James Rytting. He assured me that the state had convicted the wrong man of murdering Melissa Trotter, and forensic science could prove it.
In December 1998, nineteen-year-old Melissa Trotter was studying for her first-year finals at Montgomery College in Conroe, about thirty miles north of the centre of Houston. She had been a member of the International Order of the Rainbow for Girls – blue for fidelity, indigo for patriotism, violet for service – since she was eleven. Her mother, Sandy, was quoted as saying that Melissa ‘wasn’t embarrassed to carry her Bible with her everywhere she went’. She was on the cheerleading team, sang in the Methodist church choir, and could be relied upon to call home or send a reassuring text message if she would be staying out late.
In the early evening of Sunday 6 December, a security camera at North Shore Marina, a gas station and pizza place by the banks of Lake Conroe, on the outskirts of the small town of Willis, showed Melissa talking with Larry Swearingen, a twenty-seven-year-old electrician, for almost two hours. On Tuesday 8 December, several people saw Swearingen and Trotter talking in the library at Montgomery College, around lunchtime. In the prosecution’s version of events, they left together in his truck and went back to the trailer that Swearingen shared with his wife, on Brandon Lane, at the northern edge of Willis; when Trotter spurned his sexual advances, he raped and strangled her, drove twenty miles to a remote clearing in the Sam Houston National Forest and dumped her body behind a fallen tree. Swearingen said that he left the college on his own, picked up his grandmother at her apartment in Conroe, drove her to the post office, dropped her off and went home. His grandmother would testify to this effect in court.
When Melissa didn’t return for dinner on Tuesday evening, or call to explain her absence, her parents told themselves she must be in an area with no mobile phone reception. They started to panic only when a friend went to the college and found her car still there. Police officers searched her room the next day, and found a scrap of paper with ‘Larry’ and a phone number written on it, wedged into her address book. Two days later, with Melissa still missing, Detective Scott Davis spotted Swearingen at North Shore Marina and followed him in an unmarked car, later describing this as a ‘high-speed chase’ along country roads. After running a record check and calling for backup, he arrested Swearingen outside his mother’s house on outstanding warrants for speeding. Davis would testify that, as he was being handcuffed, Swearingen shouted, ‘Mom, do you want to buy my jet ski?’
Swearingen was locked up, ostensibly for unpaid speeding and parking tickets, bail having been set impossibly high. Police interrogated him about Trotter’s disappearance, treating him as the only suspect, but were unable to charge him in the absence of a body. Swearingen said that he and Melissa were friends, and that after saying goodbye to her at the campus he never saw her again.
The whole of Willis came out to look for Melissa Trotter, and hundreds of volunteers arrived from across Texas to trawl the forest and the fields. Congressmen called to offer their support and the Trotter family recorded a televised message at home on Christmas Day, appealing for information. Three weeks went by with no news, good or bad.
Todd Raglind had a different reason to scour the woods. Some time between Christmas and New Year, he had lost his rifle and his pistol there, after spending a night disoriented, supposedly due to an allergic reaction to prescription anti-depressants. On 2 January 1999 he put together a search party, including his father and a number of friends, to find the guns.
They drove as far as Forest Road 204 would take them, close to the banks of Lake Conroe, then spread out on foot. Less than thirty metres from the dirt track, they spotted what looked like a discarded mannequin. Daniel Raglind, Todd’s father, walked closer. ‘I still really couldn’t tell if it was a human body or not, so I touched it,’ he told the jury at Swearingen’s trial. ‘It felt like flesh to me.’ Raglind lit a cigarette and called the police.
Visitors to the Lake Conroe R.V. and Campground are requested to check in at the office, which has an ancient Ms. Pac-Man console and a stack of propane tanks at the door and a life-size cardboard cut-out of John Wayne by the desk. Each month, Larry Swearingen’s mother, Pam Martinez, pays $275 for her spot at the far end, where the warblers and nuthatches out-sing the highway. ‘Sticks and stones’ is written on the pendulum of her wind chime, which has lost every chime but one.
She has been living here for six years, ever since Joe Martinez, her second husband, died of cancer. The skin on her arms is mottled, red and purple, the result of two heart transplants and a failing kidney that will also need to be replaced soon. ‘I have buried two husbands, both my parents, and I’m ready to make sure my son is taken care of, before I leave this earth,’ she told me. ‘That’s why I fight so hard to stay alive. Him and I will go to heaven when it’s our time to go to heaven and he’ll be right there to be judged by the Lord, not by the people of Montgomery County.’
Her grandson, Larry Jr, was five when his father was arrested for the murder of Melissa Trotter and seven when he was sentenced to death. He and his girlfriend and her two teenage daughters were staying with Pam in the small trailer when I visited. Larry Jr has his surname tattooed across his stomach, and often gets into fights over it. ‘I’m a Swearingen, I back it up,’ he said, as he showed off his ink: Marilyn Monroe on one shoulder, the rapper Lil’ Wayne on the other, the names of his sisters along his arms, and various slogans: ‘Haters motivate me’, ‘Only God can judge me’, ‘Texas born, dirty south bred’, ‘Last of a dime breed’.
I had got to know Pam a little after sitting next to her in court, on my second visit to Montgomery County to follow her son’s case. For this, my third trip, she had dug out some pictures of the family, starting with Larry’s father, Lubie Lynn Swearingen, in his Army sergeant’s uniform. Not long before Larry’s tenth birthday, while they were living in Arkansas, Lubie missed a curve on his motorcycle, hit a tree and was killed. They brought his body home to Texas.
The photographs showed Larry’s adolescent transformation from freckled, red-headed boy to a handsome teenager with a black pencil moustache, arm around his prom date at Willis High School. He studied just enough to pass and was often in detention – ‘I was hard-headed, rebellious, didn’t take any crap’ – but never got kicked out because the football team needed him. ‘He had women after him constantly,’ Pam told me. ‘They would come to the door and he would go out the back.’
When his girlfriend, Michelle Cates, got pregnant at seventeen, he dropped out of school to marry her and raise Larry Jr. Swearingen says that he and Michelle fought often, and he fought strangers, too. In March 1991, he broke into the garage at his old school and stole the engine from a van. A policeman on the local force came to him with an offer: we know you did it, so bring it back, pay for what you broke and we’ll see what we can do. When he returned the engine, the school pressed charges. The judge gave him three years’ probation.
Swearingen’s parole officer sent him to jail for working in Virginia without permission, for having his truck repossessed, for crossing state lines into Kansas: a month here, three months there. After an altercation in September 1992, Michelle called her brother-in-law, a captain in the Montgomery County Sheriff’s Department. Swearingen was convicted of aggravated assault. He got a five-month sentence, and Michelle filed for divorce.
At our second meeting, Swearingen showed me an old scar, an inch long, beneath his right eye. ‘That was the county sheriff’s department. I was handcuffed and they hit me with a blackjack,’ he claimed. ‘They have their own form of justice down there. You just take your licks and if you get a chance to catch one of them by himself you whip their ass just like they did yours. That’s how the game was played.’
The trial began on 14 June 2000, in the Ninth District courthouse in Conroe. Swearingen says that his publicly appointed lawyers wanted him to seek a plea deal. ‘The first time that I met them, they said, “We’ve seen the evidence, you’re guilty.”’
Jurors heard that Swearingen had ‘redness around the neck and cheek area’ when he was arrested and that a lighter and a half-full pack of Marlboro Light cigarettes, the brand Melissa Trotter smoked, were found in a bin at his trailer; Swearingen and his wife were non-smokers. Forensic scientists testified that fibres from the carpet in his trailer were on her jacket and that hairs recovered from his truck not only ‘contained microscopic similarities to the victim’s head hair’ but also appeared to have been forcibly removed. A woman named Phyllis Morrison testified that when she went on a double date with Swearingen to the banks of Lake Conroe, in the forest near where Trotter’s body was found, he appeared to know the area well.
Sandy Musialowski, from the crime lab, testified that she had matched one leg of a pair of tights found in Swearingen’s trailer with another that was tied around Trotter’s neck. ‘I used the foam board and the straight pins, and I just looked to see the pattern and see how it fit together like a jigsaw puzzle to determine it was a unique physical match,’ she told the court. The defence let this pass unchallenged, and made little of the fact that this crucial piece of evidence was discovered by a police officer without a warrant, visiting the trailer on his own, after three prior searches of Swearingen’s trailer by the Sheriff’s Department, the Texas Rangers and the F.B.I. had failed to turn up the leg of the pair of tights.
Twenty-five days had passed between Swearingen’s arrest and the discovery of Melissa Trotter’s corpse. Joye Carter, the medical examiner who conducted the autopsy, estimated that Trotter had been killed on the day she went missing, ‘based on the appearance’ of the corpse. Carter did not tell jurors that she had taken tissue samples from Trotter’s internal organs. Even in cool temperatures, the pancreas and spleen typically begin to liquefy in two or three days, but Carter had been able to cut sections of both, as well as of Trotter’s heart, liver, lungs and brain. Swearingen’s lawyer noted that the District Attorney of Montgomery County and two of his sheriffs were in the autopsy room when Carter arrived at her estimate that Trotter’s body had lain in the forest for twenty-five days, but otherwise the defence ignored the issue of post-mortem interval entirely.
The prosecution claimed that Swearingen had raped Trotter before killing her, but there was no semen, nor any lacerations or defensive wounds on Trotter’s body to indicate a struggle. There was some male DNA in blood under her fingernails, but it did not belong to Swearingen. The prosecution dismissed the blood as a contaminant. ‘If you had just a small amount of blood on your cheek from shaving and you wiped your chin onto your shirt, could that have blown onto the crime scene?’ prosecutor Michael Tiffin asked detective Tom Duroy. ‘Well, it has to go somewhere,’ Duroy replied.
What the prosecution lacked in forensic evidence, it made up for with a devastating character study of Swearingen, who had behaved oddly from the outset. It played a tape of him reporting a burglary at his trailer, soon after arriving home on the day Trotter disappeared, in which he falsely claimed that his jetski had been stolen. Tiffin alleged that the purpose of the call was ‘to throw everybody off track’. Swearingen has always insisted that someone broke into the trailer that day, but now admits that he was attempting to commit insurance fraud by adding the jetski to the list of missing items.
The prosecution also produced a plastic key, modelled to fit interior doors at the county jail, that was found in Swearingen’s bag after another inmate tipped off guards. When the defence tried to have this ruled inadmissible, on the grounds that it could not be shown that he was trying to escape, Judge Fred Edwards interjected. ‘Flight has long been deemed indicative of a consciousness of guilt. The wicked flee when no man pursueth,’ he said, quoting American jurist John Henry Wigmore and Proverbs 28.1. ‘Your objection is overruled. The testimony will come in.’
Most damningly, the prosecution showed jurors a letter that Swearingen claimed to have been sent while he was in prison awaiting trial and then forwarded to his stepfather, Joe Martinez. Its purported author, ‘Robin’, wrote that she had witnessed the crime and named a person called ‘Ronnie’ as the killer, adding that Ronnie had admitted to murdering three other women. The letter was written in a jumble of Spanish words that barely made sense: ‘Yo tener informacion que yo necesito para desir tu de Melissa. Yo era con el asesino …’ Police found a list of English–Spanish translations hidden in Swearingen’s cell and matched the handwriting to that of his cellmate, who testified that Swearingen had written the letter, told him it was for a grandmother who ‘couldn’t read his handwriting too good’, and asked him to copy it out.
Prosecutors claimed that the letter contained details ‘only the killer could know’, such as the fact that Trotter had a bruise over her left eye, and that her throat had been cut after she was strangled. (Swearingen now admits he wrote the letter, hoping that the false leads it provided would somehow turn up a real alternative suspect – ‘It was an idiotic thing I did, trying to force the trial attorneys to hire an investigator’. The details that ‘only the killer could know’, Swearingen says, came from the autopsy report and crime-scene photographs, to which he had access in jail.)
Against the advice of his attorneys, Swearingen took the stand in his own defence and delivered a rambling ten-minute speech. ‘I’m scared to death that when this is over and one way or the other, you win, you win, you lose, you lose,’ he told the jurors. He insisted that the letter was genuine, but admitted lying to the police about the jet ski and asking an ex-girlfriend to provide him with an alibi. ‘The pantyhose, I can’t offer an explanation. I don’t know how fibres and stuff work. I don’t know how it’s transferred. I’m an electrician, that’s it.’
The jury took less than three hours to find him guilty.
The prosecution sought a death sentence. During the punishment phase of a trial, Swearingen’s appellate lawyer, James Rytting, told me, ‘Standards are different, the admissibility of evidence is much looser and it’s a time for the state to try to dirty up the picture as badly as it can.’
Swearingen’s first wife, Michelle Cates, testified that he once held a knife to her throat and raped her. Cecilia Castellanos, a stripper who accompanied him back to Texas after they met in Florida, said he tied her up, gagged her, then forced her to have a bath and ‘put something on pretty’ before raping her. A former girlfriend, Laura Meier, told jurors that he handcuffed her, raped her and drove her around the forest at gunpoint.
I told Swearingen that reading the testimony made me acutely uncomfortable. Meier and Castellanos cried on the witness stand, and whatever reasons they might have had to embroider their accounts, however much pressure they were put under by prosecutors, the stories they told would make any reasonable person think that Swearingen was, at the very least, as Rytting described him to me, a ‘mean son of a bitch’ who beats and threatens women. It was hard to believe that all these documented allegations of sexual assault against him, over a period of several years, had been fabricated, even though none of them led to charges. Swearingen dismissed the women’s testimony as irrelevant: ‘I could be the worst person in the world. It still doesn’t make me a killer.’
Terry Kendrick, Swearingen’s wife at the time of his arrest, also testified. She told jurors that when she was heavily pregnant, he put her in a choke hold and slammed her against the wall, and that he threw a hot dog at her during an argument on the day Trotter went missing, after she found the bedclothes messed up when she arrived home.
An arson charge against Kendrick in Waller County was dismissed shortly before the trial. Although she filed for divorce after Swearingen was charged with murder, she also wrote to him in prison: ‘I am so afraid of everything. Of being alone. Of losing us. I’ve been stuck at home for so long I’ve even forgotten how to live.’
‘If you hear any cracking sounds, make sure you look up,’ Assistant District Attorney Warren Diepraam told me. ‘Branches fall down all the time.’ We had driven in pouring rain, on tarmac, then dirt track, to the spot where Melissa Trotter’s body was found, Diepraam spelling out the case against Swearingen as we went.
Diepraam has been prosecuting the case for the past four years, since transferring from the District Attorney’s office in Harris County. ‘People always say it’s the death penalty capital of the United States, which is true,’ he said, of Harris County. In Montgomery County, he is most proud of his ‘no refusal’ campaign, which uses search warrants to compel suspected drunk-drivers to submit to a blood test. Diepraam, who is built like a Secret Service bodyguard, volunteered that it takes eight pints of beer for him to reach the legal limit himself.
‘We think Swearingen backed up into this little opening,’ Diepraam said. ‘You can see where that one tree is there, fallen down, just a stump with black around the base? Her body was on the other side.’ The forest has changed a bit since Trotter’s body was discovered. There has been some ‘prescribed burning’ to clear the undergrowth and slow the spread of wildfires. The drought of 2011 was especially hard on trees near the lake, leaving their shallow roots high and dry. But there is the same mix of loblolly pines, hickory and sweetgum. It is still a place to hunt white-tailed deer in the winter. Discarded beer cans, wrappers and embers mark the end of the road as a enduringly popular spot.
It was revealed at trial that on two separate occasions in the fortnight before the corpse was discovered, search teams with cadaver dogs had passed within twenty metres and found nothing. I asked Diepraam if it was unusual for a body to lie in the open for so long without being found. ‘Living kids get lost here on a weekly basis and it takes a day or two to find them,’ he said. ‘These are very thick woods. It’s not like there are hunters falling all over one another.’
The defence has questioned how Trotter’s corpse can have been left so intact after almost four weeks of exposure in the forest, during a mild winter, in an area where there are carnivorous feral hogs, coyotes, vultures and eagles, in addition to rodents and insects. Dawn Carrie, a ranger at the forest, told me that the wild pigs ‘eat pretty much anything that’s not nailed down’.
Trotter’s lips had been chewed by animals and there were signs of decomposition around her head. There was some skin slippage, but very little marbling or bloating. Looking at a photograph of the scene, it is easy to see how Daniel Raglind could have mistaken the body for a mannequin. Although deciduous trees in south-east Texas shed their leaves gradually, well into the winter months, only one leaf had come to rest on Trotter’s exposed torso.
The inmate profiles were all the same: ‘I love to read the Bible. I didn’t do it. I love basketball. So boring.’ Wiebke – she asked me not to print her surname – couldn’t recall how she had ended up at the website. It was the first time she had used Google, to find a flight for her daughter from Hamburg to New York; six hours later, she was scrolling through a list of men on death row. Larry Swearingen didn’t say he was innocent. She decided to write to him.
Wiebke had no particular interest in the death penalty, and still doesn’t. But over the past seven years she has become Swearingen’s best friend and most committed advocate, working on his case ‘full-time’ from home: compiling forensic data, poring through trial transcripts, tracking down witnesses and learning to navigate the Texas justice system. Her file on the case takes up a whole room in her apartment in Hamburg. Although she speaks excellent English now, the first email she received from a forensic pathologist took her eight hours to decipher.
On the second day of her first visit to the Polunsky Unit, in 2007, Swearingen got down on one knee, looked up ‘with big round eyes, like a dog’, and asked her to marry him. A prison chaplain appeared, then another. Furious and embarrassed, Wiebke wanted to leave, but stayed to tell Swearingen he was out of his mind. In the car park, the wife of one of Swearingen’s prison friends was waiting for her with a teddy bear and a card: ‘Congratulations!’
Swearingen ‘begged’ for a year. When his appeal was rejected and an execution date set, Wiebke acquiesced, even though she had a long-term partner. ‘It was a drive-through, ninety seconds, by-proxy ceremony. The worst day of my life,’ she told me. She spent hours driving around the nearest town, West Livingston, asking strangers if they would stand in for her incarcerated groom, before finding a devout Christian who agreed to help her. ‘I got married with a man that I didn’t love and wasn’t in love with, just because of an execution; it was horrible.’
Her father stopped speaking to her and she split up with her partner, partly as a result of her obsessive devotion to the case. ‘I’ve abandoned my family, my friends, everyone and everything in my life,’ she told me. Over the years, her marriage to Swearingen has become real, though, as much as any union conducted by post and either side of a plexiglass screen can. She has never touched her husband, but last year she proposed to him, so that she could redo the ceremony, this time with another ‘death row groupie’ standing in for Larry.
When I asked Swearingen what he reads to pass the time on death row, he said the books he checks out of the library are ‘mostly medical and legal’. With the help of Wiebke and his lawyers, he has been searching for flaws in the state’s case.
In their determination to build a case against Swearingen, detectives ignored or undervalued evidence that might have pointed to alternative suspects. One of Trotter’s friends, Lisa Roberts, told police that Melissa had been receiving threatening calls at work shortly before she disappeared, and that she had been picked up three times by a man that she was scared of. Once, the caller was put through to Lisa by mistake. Thinking he was speaking to Melissa, he told her, ‘I’ll strangle you. I’ll choke the life out of you. I’m going to fuck you while you die.’ Roberts went to school with Swearingen, and was certain that it was not his voice on the line. The lead was never pursued.
Another friend, Jamie Irvin, not quite sixteen, told police that Trotter ‘goes and parties a lot and she loves having sex. She has slept with at least eighteen people … she calls all the time so her mom and dad won’t think or find out who she is, so she will call to cover her butt.’ She provided a list of first names of men that Melissa hung out with, but police apparently didn’t follow it up. At the trial, a student from Texas A&M University was presented as her steady boyfriend.
Swearingen has consistently told reporters the same thing he told jurors at trial: that he and Trotter were ‘friends’ and nothing more. When I challenged him about this, the second time we met, he admitted that ‘on occasions we did hook up, yes, all right. Not a boyfriend–girlfriend thing, but let’s meet here and there and have some good sex.’ He dismissed my need to know about the nature of his relationship with Trotter as prurient curiosity.
‘I’ve never discussed that with anybody. What I did prior to that day is nobody’s business,’ he said. ‘They tested the DNA on my sheets. Her DNA is not there. If we can get back to a trial then I have to establish that there was a relationship of sorts. Right now, it’s only important to show that she didn’t leave the school with me.’
While Swearingen has been on death row, the state of Texas has been executing prisoners at a rate of about two per month. In 2004, Todd Willingham was put to death despite several arson investigators testifying that the fire that killed his daughters started accidentally. In 2007, the Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller, denied Michael Richards a twenty-minute extension beyond the court’s 5 p.m. closing time, after his lawyer’s computer crashed as he attempted to file an appeal. Richards died by lethal injection that night.
In 2010, Anthony Graves was released after spending fourteen years on death row, when a federal court ordered a retrial and prosecutors admitted that they had no evidence linking him to the murder of a grandmother, her daughter, and four of her grandchildren. The Court of Criminal Appeals had repeatedly upheld his conviction, based on the lies of jailhouse informants and forensic guesswork, even though the real killer had confessed his guilt in letters from jail and on his deathbed.
In 2011, Michael Morton was set free, twenty-five years after being found guilty of beating his wife to death. The couple’s three-year-old son had witnessed the murder and provided details of the ‘monster’ who killed his mother, but police and prosecutors, fixated on the theory that Morton was enraged when his wife wouldn’t have sex with him on his birthday, never considered alternative suspects. When the genetic material on a blood-stained bandana found in nearby woods was finally tested, it matched the DNA of a man with a violent criminal record that had also been found at the scene of another, similar murder.
Swearingen’s appellate defence centres on forensic testimony indicating that he cannot have murdered Melissa Trotter because he was already in prison when she was killed. According to the state’s case, he strangled Trotter and dumped her body on 8 December 1998, the day she was last seen alive. He was taken into custody three days later. Melissa’s corpse was not discovered until 2 January 1999, twenty-five days after she disappeared.
Over the course of Swearingen’s appeal, nine forensic scientists have testified for the defence, in sworn statements, on the witness stand, or both. Their estimates of post-mortem interval range from two days to a fortnight – well short, in every case, of the twenty-two-day interval between Swearingen’s arrest and the discovery of Trotter’s body. In other words, according to these nine witnesses, by the time Trotter was killed, Swearingen was behind bars – unless, as one entomologist speculated, Trotter’s body had been ‘frozen’ for a time before being dumped in the forest by an accomplice. Barring such an improbable scenario, the clear implication of the testimony was that Trotter must have been killed by someone else, at least ten days after her disappearance.
During the first stage of the appeal, Swearingen’s attorneys focused on entomological evidence that suggested Trotter’s body was colonized by insects for the first time on 18 December 1998. The species of blowfly collected at autopsy, C. cadaverina, typically begins to colonize exposed corpses in warm weather within hours of death.
In 2007, the former Harris County Medical Examiner Joye Carter, who had testified at trial that Trotter had been killed on the day she went missing, revised her opinion in a sworn statement. Based on the data she collected herself at autopsy, this time including the condition of Trotter’s internal organs, she concluded that Melissa’s corpse had been in the forest for less than two weeks when it was discovered. In a brief to the court the same year, pathologist Glenn Larkin described how quickly the pancreas and spleen liquefy after death and estimated that Trotter had been dead for three or four days when her body was found.
The Chief Medical Examiner for Galveston County, Dr Stephen Pustilnik, submitted a sworn statement in Swearingen’s defence two years later, based on his histological examination of the tissue samples taken from Trotter’s organs. ‘Nuclear and cytoplasmic details of the tissue and other supportive elements such as lung tissue, myocardium, adipose tissue, blood vessels, blood elements and connective tissue are all in remarkably good shape,’ he wrote. ‘Without prior refrigeration, the deceased was killed within reasonable certainty between five or seven days prior to her discovery.’
I went to visit Pustilnik in his office at the morgue in Galveston, where he displays the text of the Jewish prayer for the dead and a pair of custom-made cowboy boots bearing the image of two snakes entwined around the scales of justice. ‘For many days, where [Melissa Trotter] was found, it was twenty degrees Celsius,’ he told me. ‘If you’re at that temperature for three days, you’re green, bloated and stinky. Inside the body where the heat is held, the organs will decompose at a faster rate than the skin surface will. Her internal organs look beautiful.’
Pustilnik has a taste for the horrible – when we had finished talking about the Trotter case, he showed me a video clip of himself firing a gun into a bucket of animal intestines on a television programme, to demonstrate how the trajectory of a bullet can change as it passes through a human body – but he also has a scientist’s calm attachment to facts. ‘Prosecutors love to take the things that people say and do into account,’ he said. ‘In this case we have testimonial evidence and we have forensic evidence. When you have it “under glass”, the theory has to fit the facts, not the facts contorted to fit your theory. [Based on] hundreds of cases of my experience, her body is not, in any way, shape or form, dead for twenty-five days.’
The testimony of eight external scientists and Joye Carter’s dramatically revised opinion had no effect on Swearingen’s case. Rejecting the appeal for a third time, in January 2009, Judge Cathy Cochran, of the Texas Court of Criminal Appeals, wrote: ‘Although one does not doubt the honesty and sincerity of these medical examiners, their theory that Melissa did not die until December 29th or 30th because of the relatively intact state of her internal organs is contradicted by an incredible wealth of other evidence.’
She listed all the circumstantial evidence against Swearingen and made much of the contents of Trotter’s stomach, which supposedly confirmed that she had eaten fried potatoes at Montgomery College, then Chicken McNuggets with Swearingen at a nearby McDonald’s on the day she died, although there are no receipts, CCTV images or witnesses to confirm this sequence of events. Cochran referred to inferences in the prosecution’s case as though they were established facts: the Marlboro Lights and lighter found in Swearingen’s trailer were ‘Melissa’s cigarettes and lighter’, for instance, even though there was no proof that this was so. By contrast, she presented the scientific testimony as contradictory and confusing: ‘The scientists are all over the board. Theirs is like the Indian tale of the blind men touching the various parts of the elephant and coming to entirely different conclusions about the animal.’ To give undue weight to the forensic testimony would be ‘an instance of focusing solely on a couple of twigs of apparent exculpatory evidence instead of the veritable forest of inculpatory evidence’. Joining the court’s order, she sent the case back to Judge Edwards in the Ninth District of Montgomery County, to set a new execution date.
At trial, the burden of proof is on the prosecution, and a twig of exculpatory evidence can be sufficient to create reasonable doubt of guilt. But during the appeals process the burden shifts. Swearingen’s lawyers must show that no reasonable jury would convict him, based on ‘clear and convincing’ evidence of his innocence. ‘Even after they discovered histology that shows tissue that’s perfectly preserved, they still set another execution date. That’s not a system that works: that’s a system that’s designed to kill innocent people,’ James Rytting told me. ‘It’s also designed to look as if it works because it supposedly gives you all these chances, but you do not have a chance in hell when you get down to the standards that you have to meet.’
The appeals system for capital murder cases is certainly comprehensive, not to mention wildly expensive. Swearingen has been back and forth from the Ninth District to the Texas Court of Criminal Appeals, to the federal Fifth Circuit and to the US Supreme Court. His defence has filed seven applications for writ of habeas corpus; all of them have been denied, in whole or in part.
Through most of this process, the presiding judge in Montgomery County’s Ninth District was Fred Edwards, a Republican elected to the post in 1992. On the wall of his courtroom, in Conroe, when I attended an evidentiary hearing in February 2012, there was a picture of the judge arm in arm with President George H.W. Bush, plus a photograph of President Bush the younger, with a signed inscription thanking Edwards for his service. On his website, Edwards noted that he had never had a capital conviction overturned.
The hearing was a last chance for Swearingen’s lawyers to introduce new evidence and to put forensic experts on the stand. A year earlier, entomologist Lee Goff had filed an affidavit stating that the insect evidence could not be relied upon, because the samples were poorly collected and the areas of colonization were described in vague terms. At the hearing, Swearingen’s defence would attempt to show that pathology and histology could establish post-mortem interval with greater accuracy.
Swearingen’s trial attorney, Steve Jackson, was realistic about his chances. ‘Judge Edwards will not grant a retrial,’ he told me. ‘He’s in an election year.’ The defence was putting on witnesses and submitting new evidence for the benefit of the Court of Criminal Appeals, he said, as it would have the final say whatever Edwards ruled.
I sat in the second row, taping proceedings as unobtrusively as possible, emboldened by the local television news camera at the back of the room. Midway through the first morning, Edwards summoned me to the bench to ask what the recordings were for. I told him that newspapers in Scotland and Australia had commissioned me to write about the case. ‘I don’t see any reason why not,’ he told me, with a smile, ‘but we are calling immigration.’ As I passed him in court, later that afternoon, prosecutor Lyn McLellan joked that this was my ‘first stay of execution’.
I had the impression that Edwards was much more receptive to the state’s objections than to those of the defence, and a look at the transcript confirmed this: during the cross-examination of prosecution witness Dr Werner Spitz, fifteen of the prosecutor’s sixteen objections were sustained. Steve Jackson’s questions were dismissed as leading, repetitious, argumentative, irrelevant and boring, and five of his own six objections were overruled.
At one point, Edwards engaged Spitz directly: ‘Is this common that twelve years after a death to ask people to look at photographs and then make opinions about time of death? Does this happen very often?’
Spitz: ‘No, it doesn’t happen. It is not common at all. It happens maybe on a rare occasion, but it is not routine by any stretch.’
Edwards: ‘What I don’t understand is how all these opinions that I’m getting are all based when they never saw the body, they never looked at it themselves. They just looked at some photographs. [Do] photographs depict accurately the deterioration and decomposition of the body?’
Spitz: ‘Your honour, that is only second guessing. That is all second-guessing.’
Edwards: ‘Second-guessing. All right.’
In fact, the pathologists testifying in Swearingen’s defence had done much more than ‘look at some photographs’: they had examined physical samples of tissue taken from Trotter’s body, preserved in paraffin and cut into microscopic slides, in addition to the autopsy report, photographs, and weather data.
As one of the most famous forensic scientists in the United States, Spitz has engaged in ‘second guessing’ the opinions of other pathologists for much of his long career. Appearing as a defence witness at the trial of Phil Spector, who was convicted of killing an actress at his California mansion, Spitz said his standard rate is $5,000 a day.
Spitz testified that no forensic discipline – not entomology, nor pathology or histology – could establish with any certainty when Melissa Trotter died. ‘Nobody can determine a post-mortem interval … It is at best an assessment,’ he told Judge Edwards. ‘Time of death is not something that obeys a rule in each and every instance. There are general manifestations but they can be so varied that rules are of little significance.’
Swearingen’s defence witnesses had testified that the size, weight and consistency of Trotter’s organs indicated she had only been dead for a few days, and that microscopic analysis of slides of her tissue backed up this conclusion. Spitz said the evidence showed no such thing. He commended Joye Carter’s work at autopsy and stated that neither photographs nor histology slides were an adequate substitute for her first-hand observations in the report: ‘They can be the best quality in the world but they don’t substitute for Dr Carter.’
Spitz explained that when conducting an autopsy, he takes circumstantial evidence into account – a startling admission for a forensic scientist to make. ‘It is wise for the forensic pathologist to base their opinion on post-mortem interval not only on the findings on the body. I don’t say don’t rely on them, but I’m saying consider them in the light of other circumstantial evidence.’
Carter, the medical examiner whose original estimate of the date of Melissa Trotter’s death had been central to Swearingen’s conviction, and who later revised her opinion in a sworn statement, was the next prosecution witness. Confronted by the defence with photographs of Trotter’s notably intact organs, she repeatedly declined to answer questions about what the pictures told her. ‘You document what you find,’ she said. ‘It was thirteen years ago.’
She noted that although she signed the 2007 affidavit stating that the condition of Trotter’s internal organs indicated she had been dead for a fortnight at most, she had not written it – Rytting had. When pressed, she admitted that she discussed the statement’s contents with Rytting on the phone, from Indiana, where she was working as a consultant pathologist. After making some changes to the text, she signed the finished statement in front of a notary, under oath. She was paid $250.
(The only other forensic scientist to be paid for testimony on Swearingen’s behalf was the entomologist James Arends. The court authorized payment of $7,400 to Pustilnik, but he declined it. Dr Harrell Gill-King requested only the reimbursement of his travel expenses.)
Judge Edwards seemed disinclined to give much weight to the histology slides that showed how little the cells in Trotter’s organs had deteriorated between death and autopsy. ‘There is only one person on planet Earth that has heard all the testimony at both the original trial and at all of these writ hearings. That’s me,’ he said. ‘I can safely say that you cannot exclude things and just look at one sliver and say, “This is it.”’
It came as no surprise when Edwards denied Swearingen’s application for a retrial. The findings of fact and law were drawn up by Assistant District Attorney Bill Delmore, then signed by the judge, as they had been at every stage of the case. This is not unusual in Texas: the document summarizing the hearing and noting which witnesses offered credible testimony is often written by the prosecution when a conviction is upheld. What was remarkable, however, was that Delmore wrote it before the transcript of the hearing was available, instead relying on his own notes. The state’s judgement on Swearingen’s last chance to introduce new evidence was written by a prosecutor, from memory.
The Court of Criminal Appeals later received the full transcript, but it made little difference. On 12 December 2012, it upheld Swearingen’s conviction, this time without a word of explanation. The court, composed of nine elected judges, seven of them former prosecutors and all of them Republicans, has ordered just three retrials of capital cases in the last decade – although it has commuted many sentences to life without parole.
A week later, Judge Edwards set an execution date – Swearingen’s fourth. All appeals to federal courts had been exhausted. The US Supreme Court had declined to hear the case. On 27 February 2013 Swearingen would be taken to the chamber at Huntsville, strapped to a stretcher and injected with pentobarbital, a drug designed for animal euthanasia.
A few days after the date was confirmed, I received a message from Wiebke: Swearingen wanted me to watch him die. Every execution in Texas is witnessed by three journalists, but priority is given to local news organizations. By adding me to his friends and family list, Swearingen could be sure that I would be there to take down his last statement. He told me he was sure that he would ‘just lay down and go to sleep’, but what if he didn’t? What if he writhed in pain, or gasped for air, or cried out? Watching his last moments was certain to be an upsetting experience, whatever happened.
I was troubled by the guilty thought that it was also a scoop. The execution of Troy Davis by the state of Georgia in September 2011, despite a complete lack of forensic evidence and grave doubts about the eyewitness testimony used to convict him, made international headlines. Swearingen’s passing would merit no more than a few paragraphs in the Conroe Courier and the Houston Chronicle, unless I could sell the story.
Swearingen would be dead in a few weeks. As far as police were concerned, the case was closed. Unless someone unexpectedly confessed to Trotter’s murder or irrefutable new evidence came to light, he would be added to the list of men with unsafe convictions killed by the state of Texas.
Setting Swearingen’s execution date was one of Fred Edwards’s last acts as Montgomery County’s Ninth District Judge. He had served five four-year terms, but on 29 May 2012 he suffered a narrow defeat in the Republican primary to Kelly Case, a former public prosecutor and private defence attorney who ran on the Texas Tea Party Patriots slate.
Case announced his intention to take a fresh look at the most important cases in the Ninth District as soon as he was sworn in, and at a hearing on 30 January 2013 he stayed Swearingen’s execution to allow the defence to pursue DNA testing of critical items from the crime scene. Edwards had rejected motions for DNA testing three times. If five hundred more Republicans had voted for Edwards, Swearingen would be dead by now.
The Innocence Project is an organization that seeks to overturn wrongful convictions in capital cases. On the cover of its latest newsletter, there’s a picture of two men hugging: Derrick Jamison, who spent seventeen years on death row in Ohio for a murder he had nothing to do with, and Damon Thibodeaux, who was framed for the rape and murder of a teenage girl in New Orleans. When he was released last September, after spending sixteen years in prison, Thibodeaux became the three hundredth wrongfully convicted person exonerated as a result of the organization’s work.
The Innocence Project took up Swearingen’s case two years ago after identifying it as a possible means of changing the rules governing DNA testing in Texas. Although it often exposes faulty eyewitness testimony, coerced confessions and forensic malpractice, almost all of the exonerations it secures come about through DNA fingerprinting. Its logo is a strip of genetic code, mocked up like prison bars. Using Swearingen’s case as an example, the Innocence Project convinced Texas legislators to make DNA testing more widely available during the appeals process by amending Chapter 64 of the state’s Code of Criminal Procedure. Under the old rules, judges could refuse DNA testing because it had not been sought by the defence at trial or if there were no visible blood or semen stains. District Attorneys often successfully argued that defence motions for DNA testing were a frivolous delaying tactic. Since the law was changed, in 2011, post-conviction testing is to be granted for all items of evidence that might yield a genetic profile and that were not previously tested or can be subjected to new, more reliable testing techniques.
Swearingen’s defence team wants to test both legs of the tights, fingernail scrapings, Trotter’s jeans and bra, plus cigarette butts found by the body. They believe that if Swearingen’s DNA material is not present, or if there is a genetic match to a known offender, the evidence will exonerate him.
The Montgomery County District Attorney’s office initially tried to rush the testing of Trotter’s clothes, in a bid to maintain Swearingen’s execution date – ‘Frankly it’s our evidence, we ought to be able to test it. We can get results much faster, we can cut to the chase,’ Diepraam told me – but having lost that battle, when Case stayed the execution in January, it has subsequently indicated that it will question the reliability and usefulness of the evidence.
I asked Diepraam if any test result could exonerate Swearingen. ‘In my opinion, no. In the opinion of the Court of Criminal Appeals, no,’ he said. ‘What the defence is hoping for is for somebody else’s DNA to be on that ligature … that doesn’t necessarily mean anything because we know that multiple people handled that ligature during the course of these proceedings.’ Swearingen’s lawyers dispute this and characterize it as another instance of prosecutorial misdirection, similar to the police testimony at trial dismissing the blood under Trotter’s fingernails as a contaminant.
Diepraam argued that the circumstantial evidence against Swearingen is compelling enough that even if DNA on Trotter’s clothes matched a violent offender in the law-enforcement database, it would be insufficient to establish his innocence. ‘The other independent evidence of his guilt is so overwhelming that it wouldn’t make a difference what the DNA results were even if it all came back to other profiles,’ he said.
There’s an episode of The Simpsons in which Bart watches his next door neighbour play an arcade game called Escape from Death Row. After fighting his way past guards, the prisoner appears before a judge and has the option of pleading insanity, expressing remorse, or requesting a change of venue. This time, after hitting change of venue, he is strapped into an electric chair and an executioner throws the switch, shooting his pistols in the air, as ‘The Yellow Rose of Texas’ plays in the background.
‘It’s like that Escape from Death Row game in The Simpsons,’ Diepraam told me, once I had turned off the tape recorder at the end of our first interview. ‘You have landed in Texas: Game Over. So funny, but so true.’
Across the United States, the number of death sentences and executions is in decline. The steady stream of DNA exonerations, almost fifty in Texas alone, has created doubt in the minds of jurors, and the introduction of a ‘life without the possibility of parole’ sentence has provided an alternative. But there is still a huge backlog to clear, of men sentenced in the nineties and the aughts who have run out of appeals. Six prisoners were booked in to the Huntsville chamber in April and another three in early May. ‘I’ve never known so many,’ a guard told me as we passed through security at death row, when I last visited Swearingen in February.
The unexpected reprieve had brought some of Swearingen’s anger to the surface. ‘There’s no more in-betweens, no more innuendos, you’re gonna put your money where the mouth is, and when it hits you in the mouth, you’re gonna be proven wrong,’ he told me. ‘What are you gonna do when that DNA comes back and it’s not mine?’ He had the air of a man who expects to be vindicated.
On 25 March, Case ruled in favour of the defence request for DNA testing. The state announced its intention to appeal the decision. If, as seems likely, the Court of Criminal Appeals allows the testing to go ahead, it will take around six months for the results to come out. Swearingen will return to the Ninth District courtroom in Conroe, where Case will hear the new evidence. Whatever he rules, it will be up to the Court of Criminal Appeals to decide whether Swearingen should be set free, granted a retrial, or put to death.
Reading the forensic reports, I often wondered whether the police and the prosecution still believe that they got the right man, or whether the logic of an adversarial justice system compels them to fight to the end regardless. After the hearing in January, Diepraam told the local TV news that ‘Mr Swearingen is probably the most guilty person in the history of Montgomery County when it comes to capital murder.’
To read the rest of Dublin Review 51, you may purchase the issue here.