Austin Statesman

Court halts Swearingen execution
Forensic pathologists back inmate's claim that he did not kill college student in 1998.
By Chuck Lindell

AMERICAN-STATESMAN STAFF

Tuesday, January 27, 2009

A federal appeals court Monday halted tonight's planned execution of Larry Swearingen, giving his lawyers time to present claims that he did not commit the 1998 murder that sent him to death row.

Four forensic pathologists, including the medical examiner who testified against Swearingen at his capital murder trial, now say that Swearingen was in jail when Melissa Trotter, 19, was strangled and left in a national forest near Conroe in East Texas.

Without addressing Swearingen's guilt or innocence, the 5th U.S. Circuit Court of Appeals gave him permission to return to federal court to seek a new trial or release from prison.

"I'm extraordinarily relieved that the state didn't kill a man who was proven to be absolutely innocent — relieved for Mr. Swearingen and for the state," said James Rytting, Swearingen's appellate lawyer. "Montgomery County couldn't even indict him based on the evidence we have provided, let alone prevail in a trial."
Larry Swearingen
Larry Swearingen
The Montgomery County district attorney's office, however, will fight to keep Swearingen on death row. Prosecutors say other evidence links him to the crime, including a match between the pantyhose leg found around Trotter's neck and a stocking found in a trash dump next to Swearingen's mobile home.

Prosecutors also point to evidence showing that Trotter had been in Swearingen's truck and mobile home and to records from cell phone towers that show Swearingen made calls from near the area where Trotter's body was found.

Swearingen's appeal is all about timing:

\• Trotter disappeared from Montgomery County Community College on Dec. 8, 1998.

\• Swearingen, seen with Trotter on the day she disappeared, was jailed Dec. 11 on outstanding traffic warrants.

\• Trotter's body was discovered in the Sam Houston National Forest on Jan. 2, 1999 — 25 days after she was last seen.

The autopsy by Dr. Joye Carter, then chief medical examiner for Harris County, ruled that Trotter had been raped and strangled on the day she disappeared.

But three forensic pathologists, identified by Swearingen's appellate lawyers, said the condition of Trotter's body showed she had been in the forest for less than 14 days — and perhaps as little as two or three days.

After reviewing the findings, Carter said in a 2007 affidavit that she had made a mistake in her autopsy and now believes Trotter's body was in the forest for less than two weeks.

According to Carter and the three pathologists, the autopsy found the spleen and pancreas intact, although those organs liquefy within days of death. Bodies also can be expected to lose most of their weight after 25 days in temperatures recorded in the Conroe area at that time, but Trotter's body weighed 105 pounds — down only 4 pounds from her living weight.

And unlike a body left outside for 25 days, Trotter's showed no sign of bloating, her clothes were unsoiled, and there was limited scavenging by animals in a forest inhabited by feral pigs, vultures and raccoons.

In addition, five recently discovered slides of heart, lung and nerve tissue from Trotter's autopsy revealed intact red blood cells, though they break down within hours of death, and intact heart cell nuclei, which break down within days.

The slides led Dr. Lloyd White, a Tarrant County deputy medical examiner, to conclude that Trotter had been dead for no more than five days.

Prosecutors disagree, saying slow-growing fungus on Trotter's skin and advanced decomposition around her head and neck support the theory that she had lain in the forest for 25 days.

Monday's appellate court decision does not guarantee that Swearingen, a laborer previously convicted of burglary, will be able to present the forensic findings in federal court.

Death row inmates are limited to one federal appeal unless they meet two narrow legal exceptions: the new information must have been unavailable during the first appeal, and it must be so convincing that if presented at trial, a reasonable juror would not vote to convict.

The federal judge can dismiss the petition if Swearingen fails to satisfy both exceptions, according to the 5th Circuit Court's ruling by Chief Judge Edith Jones and Judges Harold DeMoss Jr. and Jacques Wiener.

A concurring statement by Wiener addressed what he termed the elephant in the room — that the U.S. Supreme Court has yet to recognize innocence as a ground for halting an execution.

Swearingen will have to prove a constitutional right was violated, such as his right to representation by a competent trial lawyer who instead failed to investigate Carter's autopsy results, Wiener noted. He raised "the real possibility" that a federal judge could view the forensic evidence as proof of Swearingen's innocence but still reject the appeal because another right was not violated.

The result could spur the circuit court, or even the U.S. Supreme Court, to address innocence as an appellate defense, a question "that has been left unanswered for too long," Wiener said.

clindell@statesman.com; 912-2569


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