Wednesday, February 4, 2009


One of the lessons of the Goudge Inquiry was the ease with which innocent persons could be convicted of murder strictly on the basis of the pathological evidence on questions such as the time and cause of death - which all too often was wrong.

Many Canadians reacted in horror to the spectre of innocent parents put through the horror of being charged with murdering their own children because of faulty pathological evidence.

That sense of horror is compounded where there is the possibility that an innocent person is being executed by the state in circumstances where there are strong suggestions that the pathologists got it wrong.

The Larry Swearingen case is very much in point;


The powerful Austin-American Statesman editorial ran on January 27, 2009, under the heading: "U.S. Court stops execution that Texas courts wouldn't; Experts believe condemned man Swearingen could not have committed the murder."

"Once again, a federal court has had to intervene to prevent Texas from executing a death row inmate whose conviction is in doubt. The 5th U.S. Circuit Court of Appeals on Monday issued a reprieve to Larry Swearingen, whose execution by lethal injection was scheduled for today," the editorial began;

"And once again, Texas courts and officials did nothing to prevent a possible miscarriage of ultimate justice," it continued;

"The Texas Court of Criminal Appeals had denied Swearingen's petition to hear new information from pathologists who reviewed the case. Nor did Gov. Rick Perry issue a reprieve. And Texas Attorney General Abbott opposed Swearingen's appeal to the 5th Circuit, which ruled that Swearingen's petition could be heard by a federal district court.

Expert scientific analysis strongly indicates Swearingen might not have committed the 1998 murder of college student Melissa Trotter, 19. Based on a report by four pathologists, Swearingen's attorney appealed to the state criminal appeals court, the governor's office, the federal appeals court and the U.S. Supreme Court asking for a stay of execution to review the information.

One of those pathologists with a new interpretation of the case is former Harris County Chief Medical Examiner Joye Carter, who performed the autopsy on the victim. Carter says her original estimate of the time of death was wrong, as do several other professionals.

This case is about timing. Trotter was last seen leaving the Montgomery County Community College campus in Conroe with Swearingen on Dec. 8, 1998. Her body was found in Sam Houston National Forest near Conroe on Jan. 2, 1999. She had been strangled, and a portion of her panty hose was found around her neck.

Swearingen was a good bet for the crime. He was twice accused of rape and had been seen with Trotter the day she disappeared. There was other circumstantial evidence implicating Swearingen, too. But if he had killed Trotter and left her in the national forest on Dec. 8 or soon after, the body would have been badly decomposed. Instead it was quite well preserved.

Pathologists, including Carter, say the body could not have been in the forest more than 14 days and likely was there as few as four days before it was discovered. If true, that means Swearingen could not have killed Trotter and left her body in the woods because he had been in jail since Dec. 11 on outstanding traffic warrants.

The science behind the claim that Trotter's body had not been in the forest for more than two weeks is strong. It is based on proven rates of organ decomposition, on insect infestation and other well-tested factors that pathologists use to determine times of death.

This expert analysis presented a strong argument to delay Swearingen's execution until the information can be evaluated. Had the jury heard these scientific facts during Swearingen's trial, it might have rendered a verdict of not guilty.

Despite that, neither the state appeals court, the attorney general nor the governor did anything to prevent the execution of a possibly innocent man. The lack of interest in fairness and justice by the Texas Court of Criminal Appeals in capital cases continues to baffle, frustrate and infuriate."