"DESPITE SWEARINGEN'S NUMEROUS PETITIONS AND TWO STAYS OF EXECUTION, HE HAS NOT YET EXHAUSTED THE APPEALS PROCESS. HIS ATTORNEY, JAMES RYTTING, SAID HE PLANS TO FILE AN APPEAL WITH THE U.S. 5TH CIRCUIT COURT OF APPEALS. THE HOUSTON ATTORNEY SAID HE BELIEVES THE STATE APPEALS COURT IS TRYING TO CLOSE THE GATE ON SWEARINGEN BY ENGAGING IN “POLITICAL MURDER.” “THEY'RE GREASING THE SKIDS TOWARD EXECUTION OF AN INNOCENT MAN,” RYTTING SAID. “I WILL FIGHT UP TO THE LAST MINUTE.”
REPORTER RENEE C. LEE; THE HOUSTON CHRONICLE;
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BACKGROUND: Larry Swearingen was sentenced to death in 2000 for the murder of Melissa Trotter in 1998. Melissa Trotter went missing on 8 December 1998. Larry Swearingen was arrested three days later, and has been incarcerated ever since. The body of Melissa Trotter was found in a forest on 2 January 1999. Larry Swearingen was tried for her murder, and sentenced to death. He maintains his innocence of the murder. Several forensic experts have provided statements and testimony that support his claim. One of these experts, Dr Joyce Carter, is the former Chief Medical Examiner of Harris County in Texas who performed the autopsy of Melissa Trotter and testified at Larry Swearingen’s trial that in her opinion, Melissa Trotter had died 25 days before her body was found. In an affidavit signed in 2007, Dr Carter stated that she had looked again at the case and changed her opinion. She concluded that Melissa Trotter’s body had been left in the forest within two weeks of it being found. If accurate, this would mean that the body was dumped at a time when Larry Swearingen was already in custody.
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"After nearly a decade on death row, Larry Swearingen has hit another roadblock in his fight to prove his innocence in the murder of a 19-year-old college student in 1998," the Houston Chronicle story by reporter Renee C. Lee, published earlier today begins.
"The Texas Criminal Court of Appeals on Wednesday upheld the trial court's decision in January 2009 to deny Swearingen's motion for DNA testing of evidence in the capital murder case," the story continues, under the heading "Condemned Montgomery Co. killer loses DNA appeal."
"In the unanimous decision, the appeals court agreed that some evidence had already been tested and that Swearingen could not prove other evidence contained biological materials that could be tested for DNA. The law says there must be biological material present for a defendant to pursue post-conviction testing.
"In light of the overwhelming evidence of the appellant's guilt, even if we were to grant appellant's request,” the court said, Swearingen cannot show the test results would create at least a 51 percent chance that he would not be convicted.
In November, a federal district judge denied Swearingen's petition of actual innocence.
Despite Swearingen's numerous petitions and two stays of execution, he has not yet exhausted the appeals process.
His attorney, James Rytting, said he plans to file an appeal with the U.S. 5th Circuit Court of Appeals.
The Houston attorney said he believes the state appeals court is trying to close the gate on Swearingen by engaging in “political murder.”
“They're greasing the skids toward execution of an innocent man,” Rytting said. “I will fight up to the last minute.”
Melissa Trotter disappeared from Montgomery College on Dec. 8, 1998. Witnesses said they last saw her on campus that day with Swearingen. Her body was discovered on Jan. 2, 1999, in Sam Houston National Forest in Montgomery County with a piece of pantyhose around her neck.
Swearingen was convicted in 2000. Prosecutors contend that Trotter was killed on the same day she was abducted, and their evidence was bolstered by an autopsy report by former Harris County Medical Examiner Joye Carter. She had determined that Trotter's body had been in the woods for 25 days, placing the date of death on Dec. 8.
Carter changed her opinion in 2007, concluding that Trotter's body could not have been left in the woods more than 14 days. Her reversal came after Rytting found experts, including current Harris County Medical Examiner Dr. Luis Sanchez, who said Trotter died after Dec. 11 and as late as Dec. 18. Their opinions were based on when they say insect infestation of Trotter's body occurred. Swearingen was arrested Dec. 11 and was in jail until his trial.
Rytting said his scientific evidence, which challenges prosecutors' circumstantial evidence, proves that his client did not strangle and rape Trotter.
Previous petitions have focused on the time of Trotter's death and new insect and pathology evidence that contradict state evidence. Rytting says the evidence proves that Swearingen could not have killed Trotter on Dec. 8, 1998, because he was in jail on an unrelated charge.
In the state appeal, Rytting sought the retesting of blood under Trotter's fingernail and testing of any other material from the fingernails. He also wanted testing of her ripped jeans and clothing, a pubic hair and the pantyhouse.
Montgomery County Assistant District Attorney Marc Brumberger, who handles post-convictions, said the state had strong evidence from the beginning.
He said a complete blood profile from the fingernails was done and compared with state and federal DNA databanks but a match was never found.
Trotter's mother, Sandra Trotter, said she hopes Wednesday's ruling will be the end of the line in state court, but knows the federal case still lingers. She said she and her husband remain optimistic that Swearingen will be executed."
The story can be found at:
http://www.chron.com/disp/story.mpl/metropolitan/6860184.html
Harold Levy...hlevy15@gmail.com;
