"If I had been setting on the jury, I hope I would have had the courage to vote Not Guilty, and the persuasive powers to convince all the others to join me. I see something in the evidence just presented that makes me believe Larry Swearingen is factually innocent.
Had I been on the jury, I would have been pretty sure I was right, but not positive, about his actual innocence. If it turned out I was indeed right, and I voted guilty, I would have sent an innocent man to the needle. If it turned out I was wrong, I would have allowed my hubris to interfere with finding justice for Melissa Trotter.
As it turned out, I would have been correct in concluding that Larry Swearingen is factually innocent."
THE SKEPTICAL JUROR; "The Skeptical Juror" - otherwise known as J. Bennett Allen - has brought his skeptical mind to several controversial American cases which have become the subject of his books, including the trials of Cameron Todd Willingham and Cory Maye. Allen's books are characterized by their focus on the nitty-gritty of criminal trials through court transcripts, documents and other exhibits. (Often omitted by other writers because they get in the way of telling the story!) He has now brought his inquisitive nature and raw intelligence to the prosecution of Larry Swearingen in a several part series published on his website: skepticaljuror.com; Allen tells his readers: I come by that name honestly. I’ve served jury duty more than most. I’ve been summoned more than ten times. I can’t recall how many more precisely, just that it's more than ten. I’ve been called enough times that I’ve lost track. Allen knows from what he speaks. As he tells his readers; "I’ve been called into the jury box seven times for voir dire. I’ve actually served on a jury four times, all criminal cases, all felonies. I was an alternate during my first trial. I was the foreperson in the next three: murder, spousal battery, and child molestation. The last trial was a life-changing event. It led me to create this website, a pending series of books, and this persona. The dictionary defines “skeptical” as “not easily convinced, having doubts or reservations.” A Skeptical Juror, then, truly and without reservation grants each defendant the presumption of innocence. A Skeptical Juror insists the state carry the burden of proof, and will not vote guilty unless and until the state proves each and every element beyond a reasonable doubt. A Skeptical Juror is focused on the evidence and is impervious to the drama. Most jurors believe they adhere to these precepts. Experience cautions me otherwise. But I am not merely A Skeptical Juror. I am The Skeptical Juror, as if there is but one. To be sure, there are many other jurors out there who apply a high level of skepticism when adjudicating a case. I fear they are too few, but the existence of just one other is sufficient to prove I am not The One and Only Skeptical Juror. I use the title simply because it is more marketable than A Skeptical Juror. And because it’s cooler."
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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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"Larry Swearingen had been scheduled for execution by the people of Texas just two days from today, on August 18, 2011," the Skeptical Juror's August 19 post beins under the heading, "The Absolutely Astounding Case of Larry Swearingen: Part 1."
"I did not list him on my navigation page as scheduled for execution because he had already been granted a stay. I took a peek at his case nonetheless, and then another, and then another," the post continues.
"And then another.
I hereby declare that the case of Larry Swearingen is absolutely the most astounding criminal case I know of, and I know of a lot. I'm not going to just give everything away, however. I'm going to commit the grievous writer's sin of burying my lead. I'm going to tell his story in three parts and keep the surprise ending for the last part. You're welcome to come along for the ride.
In this part, I will provide the summary of Larry Swearingen's case from Swearingen v. State (2003), one of his many appellate court decisions.
The evidence, viewed in the light most favorable to the State, shows that Swearingen became acquainted with Trotter on Sunday, December 6, 1998, talked with her at length, got her phone number, and made plans to see or talk with her again the next day. The next day, she failed to show up for lunch after Swearingen had bragged to his coworkers about his plans to have lunch with Trotter. His coworkers teased him about being stood up even after he had told them that he called Trotter and she said that she had been taking a test. Swearingen appeared to be angry the remainder of the day.
Later that evening, while using his truck to help transport some furniture, Swearingen commented to Bryan Foster and William Brown that he was going to meet a young lady named Melissa for lunch the next day, and if everything went right, he was going "to have Melissa for lunch." Brown noticed various items of clothing in the backseat of Swearingen's truck. Swearingen called Trotter from Foster's house and talked about meeting for lunch and helping her study for an exam.
On Tuesday, December 8, Swearingen met Trotter in the college library around 1:30 p.m., after Trotter had purchased some tater-tots from the school cafeteria. After sitting by the computers and talking amicably with Swearingen for some amount of time, Trotter left the library with Swearingen around 2 p.m. Trotter's vehicle remained in the college parking lot.
At 2:05 p.m., Swearingen returned a page he received and said he would have to call back later because he was at lunch with a friend.
Swearingen returned to his trailer sometime before 3:30 p.m. and left between 2:00 p.m. and 3:30 p.m., then returned again to the trailer sometime before 5:30 p.m., asked his landlord some questions, then left again between 4:30 p.m. and 5:30 p.m., to pick up his wife, Terry Swearingen, from his mother's house. His neighbor, seeing Swearingen's truck come and go, was not able to see through the tinted windows or see who got in and out of the truck.
When Swearingen and his wife returned home, a package of Marlboro Light cigarettes and a red lighter were on top of the television. The evidence showed that Trotter smoked Marlboro Lights and that neither appellant or his wife smoked.
That evening, Swearingen called Phyllis Morrison, a former girlfriend, and told her that he was in trouble and the police might be after him.
On December 11, Swearingen was arrested pursuant to several outstanding warrants, and while being handcuffed, said that his wrist and ribs were sore from a bar fight he had been in the week before.
Trotter's body was found in the Sam Houston National Forest on January 2, 1999, with a piece of hosiery still tied, as a ligature, around her neck. The state of the body's decomposition was consistent with having been in the woods approximately 25 days, supporting December 8 as the date of death. The location where Trotter's body was found was heavily wooded, secluded, and remote. The police had previously searched the area three times without finding the body. One had to be within twenty feet of the body before seeing it. Swearingen knew his way around this area; he had driven a date around the vicinity a few months earlier in his red pickup.
Trotter's body was on its back in a pile of bushes, her right arm was above her head and slightly to the left. Her top and bra were pulled up under her arms, exposing her breasts and back. There were creases on her back from her neck to her waist that could have been caused by laying on the debris in the bushes for a period of time after she had died. Her jeans were on and the fly was closed, but the right rear pocket was torn downwards exposing part of her buttocks. She was wearing red underwear. There were no scratches found on her exposed skin as one would expect to find if she had been dragged to the location. However, there was no soil on Trotter's shoes. She had only one shoe on; the other shoe was lying nearby.
Trotter died from asphyxia, lack of oxygen, by ligature strangulation. The nylon ligature was a section cut from a pair of pantyhose; the matching complementary portion of the pantyhose was found in Swearingen's trailer. There also appeared to be a sharp-forced injury on Trotter's neck that would have been inflicted before Trotter died, while her blood continued to circulate. Although there was subsequent animal activity and tooth marks on the neck organs at that area, a cut with a sharp object, like a knife, could not be ruled out.
The lack of defensive wounds, such as broken fingernails, and the difficulty of tying an elastic piece of nylon around a struggling victim, suggested that Trotter may have been unconscious when the ligature was applied. Although the state of decomposition made it difficult to determine, the left side of Trotter's face was much darker and at a more advanced stage of decomposition, which could be consistent with having sustained a bruise on the left side of her face. Evidence showed that animals are drawn to blood and a bruise would collect blood close to the skin's surface. There was also a deep bruise on Trotter's tongue, like a bite or a cut, consistent both with being struck under the chin, which would push the lower jaw up onto the tongue, and with biting down on the tongue while being strangled or suffering a seizure. There was also discoloration on Trotter's vaginal wall, a bruise that could have been caused by sexual intercourse on the day of her disappearance.
There were fibers found on Trotter similar to fibers from Swearingen's jacket, others similar to the seat and head-liner in Swearingen's truck, and others similar to the carpet in Swearingen's master bedroom. There were also fibers found in Swearingen's truck that were similar to fibers from Trotter's jacket. There were hairs in Swearingen's truck that appeared to have been forcibly removed from Trotter's head.
An internal examination revealed that Trotter's stomach contained not only what appeared to be a form of potato, but also what appeared to be chicken and a small amount of greenish vegetable material.
While in jail awaiting trial, Swearingen sent a letter to his mother that the evidence showed Swearingen had written, with the help of an English-Spanish dictionary and had his cellmate copy. The letter stated it was written by a girl named Robin who could identify Trotter's murderer as someone other than Swearingen and who knew the details of the murder. The translation of the letter is as follows:
Larry
I have information that I need to tell you about Melissa and Wanda. I was with the murderer of Melissa, and with the one that took Wanda from work. I am not sure what he did with Wanda, but I saw everything that happened to Melissa. He was talking to her in the parking lot. They went to school together is what he told me. "We drove for awhile, and then we went and had breakfast. I began to talk about sex when she said she had to go home." He hit her in the left eye, and she fell to the floor of her car. He took her to the wood and began to choke her with his hands at first, then he jerked (jalar is slang) her to the bushes. He cut her throat to make sure that she was dead. Her shoe came off when he jerked (slang) her into the bushes. Her jabear (cannot make out/ no such word in Spanish) was torn. I am in love with him, and I don't want him in jail. The man in jail doesn't deserve to be in jail, either. To make sure that you know, I am telling you the truth. She was wearing red panties when R.D. murdered her. He choked her with his hands first, but he used A piece of rope the truck from his truck; he had a piece of black rope that he used in his boat to anchor it, or something, he said. When he dragged her from the car, he put her in the shrub on her back. I know that I should turn him in, but he told me that he would kill me, too, and I believe him. He has told about this murder to 3 other women in the past, will tell you that he smokes, and he smoked with her at the college at 2:30 and drove a blue truck. His hair is blonde and brown and lives here. His name is Ronnie, but that is all I can tell, if you want more information, say it on paper and I will continue to write, but I want to come in.
Robin
After a bit of chatter, the appellate decision then summarizes the evidence in favor of the defense.
The only significant independent evidence contrary to the verdict is the testimony of Swearingen explaining that he left Trotter at the college, while she was talking to another man, and went to see his grandmother, and his grandmother's testimony that Swearingen picked her up and took her to the post office around 2:30 p.m. on December 8, 1998 and left her around 2:50 p.m. The State on cross-examination, called into question his grandmother's memory of the date and time and also the credibility of her statement as she had not informed the authorities of her knowledge of Swearingen's whereabouts while he languished in jail awaiting trial. The jury could have reasonably disbelieved both witnesses' testimony. We must defer to the jury's judgment of the witnesses' credibility.
Other evidence tending to disprove or dispute guilt consists of testimony that the forensic evidence would also be consistent with other theories. For example, there was testimony that Trotter's shirt could have been pulled up in the process of dragging her body to the bushes. However, there was also testimony that no scratches were found on the body as would be expected if exposed skin were pulled across debris on the ground. There was testimony that the creases on her back could have been produced by laying on her clothing for a period of time after she had died, indicating that her top was pulled up post-mortem, but there was other testimony that the creases on her back could have been produced by her bare back laying on the debris from the time she died. There was also testimony that the vaginal discoloration could have been caused by an infection that her medical records indicated she had suffered.
That's about it. The jury voted Swearingen guilty of murdering Melissa Trotter by ligature strangulation in the course of committing or attempting to commit kidnapping or aggravated sexual assault. It seems to me there was almost no evidence whatsoever to support the kidnapping and aggravated sexual assault components of the State's case. I would likely have voted Not Guilty on those counts.
The evidence for the murder count, however, was substantial though circumstantial. Billy Sinclair, author of Capital Punishment: An Indictment by a Death Row Survivor, summarizes the evidence against Swearingen thus:
* Swearingen was the last person Trotter was seen with alive (she was seen with him by three witnesses)
* Two of Swearingen’s friends overheard Swearingen in a cell phone conversation on December 7 arranging a dinner meeting with Trotter on December 8
* Ms. Trotter had been in Swearingen’s truck where her forcibly removed hair follicles were found
* Trotter was in Swearingen’s house on the day she disappeared, the house was later found in disarray, and Swearingen falsely reported a burglary of the residence
* Documents belonging to Trotter were found near the residence of Swearingen’s parents
* Trotter’s cigarettes were found in Swearingen’s house
* Trotter was wearing the same clothes at the time of death as she wore on the day of her disappearance and a note given to her by a friend on December 8 was found in the back pocket of her jeans
* Swearingen’s cell phone records placed him near the location where Trotter’s body was found
* A half pair of pantyhose belonging to Swearingen’s former wife was found in Swearingen’s house while the other half was found wrapped around Trotter’s neck
* Contents from the last meal Trotter ate on the day of her disappearance were found in her stomach -- a meal eaten with Swearingen
* Swearingen lied about his whereabouts on the day of Trotter’s disappearance, fled from the police, tried to fabricate an alibi, and made false police reports
* Swearingen asked others to lie on his behalf and told other people the police would be after him
* Swearingen crafted a letter written in Spanish in jail designed to deflect attention from himself -- a letter which contained detailed specifics about Trotter’s murder which accurately corroborated the physical and medical evidence in the case
* Swearingen reportedly told other inmates, “fuck, yeah, I did it” and his only objective was to escape the death penalty
* Trotter’s body was found in an area of the Sam Houston National Forest where Swearingen had frequented
Sinclair suspects Swearingen is factually guilty: "I don’t know beyond a reasonable doubt whether or not Larry Ray Swearingen is guilty, but I do know there is a compelling body of evidence which is highly incriminating." I suspect most people wouldn't be as reticent about declaring Swearingen absolutely, unquestionably guilty.
However, ....
If I had been setting on the jury, I hope I would have had the courage to vote Not Guilty, and the persuasive powers to convince all the others to join me. I see something in the evidence just presented that makes me believe Larry Swearingen is factually innocent.
Had I been on the jury, I would have been pretty sure I was right, but not positive, about his actual innocence. If it turned out I was indeed right, and I voted guilty, I would have sent an innocent man to the needle. If it turned out I was wrong, I would have allowed my hubris to interfere with finding justice for Melissa Trotter.
As it turned out, I would have been correct in concluding that Larry Swearingen is factually innocent.
Can you, as a skeptical juror, see it? Can you see why Larry Swearingen must be factually innocent based on the evidence just presented?"
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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
