"As a juror, I would have disagreed with the ME. I would have concluded that Melissa Trotter did not die sometime near December 8. I would have concluded she died much closer to January 2 than December 8. Then I would have become even more troubled by the ME's approximate but convenient 25 day estimate, and dismissed her completely as an untrustworthy witness, one more eager to do the State's bidding than to tell me the truth.
And then I would have argued to my fellow jurors that they should remember that the body was not discovered during the first three searches of the area, though the searchers had come within 20 feet of the spot she was eventually found. I would have stood at one end of the jury room and pointed to the far end, and then I might have said:
"That's about 20 feet. Now, if I'm a searcher, I assume I have another searcher on my left and another on my right, and we are spaced apart such that nothing will pass between us unnoticed. If there are bushes there, we'll peak in the bushes. If there's a tree, we'll look all around the tree. Heck, we'll even look up the tree. Now Texas is asking us to believe they searched the area not just once, not just twice, but three times and they never saw the body? I'll tell you why they never say the body. Because it wasn't there. There was no body at that point. Melissa was still alive. She wouldn't be dead until later, until sometime shortly before the New Year.""
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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"In this post, I'm going to cause you to dislike Larry Swearingen more than you already do. Then I'm going to tell you why I would have (hopefully) voted not guilty. In the next post, you'll find out whether or not my hunch was right," the post by the Skeptical Juror published on August 19, 2011 begins, under the heading, "The Absolutely Astounding Case of Larry Swearingen: Part 2."
"Court TV did an multi-part series on Larry Swearingen. As part of that series, they summarized his abusive treatment of women prior to the case of Melissa Trotter. I found the summary on the Charles Smith Blog. I repeat it below," the post continues.
"But Swearingen says the drugs had an adverse effect on his relationship with his family and his commitment to school. By his junior year, his girlfriend was pregnant with his son. He dropped out of school to work various odd jobs.
The relationship did not last, and shortly after his son's birth in 1990, Swearingen married a woman who later gave birth to their daughter.
But the relationship quickly soured as Swearingen's violent streak emerged, according to the woman.
"[Swearingen] would wait for her at the door of their home and when she arrived he would begin hitting her, and sometimes strangled her with hands," court documents state.
After the two separated in 1992, according to the woman, Swearingen showed up at her job and harassed her. During Swearingen's penalty phase, the woman testified that she never reported the incidents for fear of losing custody of her daughter.
In one instance, Swearingen allegedly abducted her at knifepoint and drove her to a wooded area, where he raped her.
Another ex-girlfriend testified at his sentencing that she met him in 1994 at a Florida strip club and moved back with him to Texas. When she told him she planned to leave for California, he tied her up and threw her in a closet, she said.
He then allegedly beat and threatened her with a knife as both her child and Swearingen's son played in the yard.
The woman testified that he freed her when his mother arrived. She fled the state and did not return to press charges or tell her story until her appearance at Swearingen's sentencing.
Less than three months before 18-year-old Melissa Trotter disappeared, another ex-fiancée complained to police that Swearingen had assaulted and raped her.
According to court documents, Swearingen allegedly broke into her home, wrestled her to the ground, stuffed her mouth with newspaper and handcuffed her before beating and raping her.
One week later, the woman testified, Swearingen fired a bullet through her window and forced her into his car at gunpoint.
"[Swearingen] made [her] drive to a location within the Sam Houston National Forest that was approximately one mile from where Melissa's body would someday be discovered," court documents state. "She was able to appease Swearingen, and he eventually let her go."
Swearingen was arrested on the allegations and released on bond.
That ought to do it. Not only does the evidence make him look guilty as hell, his history of abusing women reinforces the certainty of his guilt. Also, it turns him into an utterly despicable character that we don't have to feel sorry for when we send him off to death row. Who in their right mind would consider releasing such a person back into society? Who would not be compelled to vote Guilty?
I assure you it can be no fun trying to fulfill your juror's oath under such a circumstance. I argue, however, that if you believe the State has not proved its case beyond a reasonable doubt, you have a moral and constitutional obligation to vote Not Guilty. You must do so even if you believe the defendant might be guilty; even if you believe the defendant is a sleazeball.
I'm not naive. I know I'm in the minority. I know from experience how people behave behind the jury room door. On this point, though, I will not budge. If you are a prosecutor and you impanel me on the jury, and you have me take an oath, you had better prove your case to me beyond a reasonable doubt. If you do not, I will not save you. I will vote Not Guilty. I will attempt to convince my fellow jurors to vote Not Guilty. And, if I cannot compel all of them, I will hang the jury.
Furthermore ....
If I believe the defendant is factually innocent, I might actually volunteer to assist the defense in the retrial, assuming the State decides to re-try him, which they will. I've been known to do that.
So what's my beef with the State's case in the trial of Larry Swearingen? I guess it's time to come clean.
I'm really bothered by the testimony of the medical examiner. First thing that hit me was that the ME estimated the time of death as approximately 25 days prior to discovery. That's a bit too convenient and a bit too cozy. Trotter was last seen with Larry Swearingen on December 8. Her body was discovered on January 2. That's 25 days. That's coincidently the same number of days the ME testified to, while cautioning us that it was an approximate number. (I'm inferring this from the appellate decision.)
When someone has been dead for about a month, establishing time of death to a specific day is not possible. A less biased estimation would have been "about a month." That still would have made it possible that Swearingen had murdered Trotter, and it has the added benefit of being intellectually honest. Assuming the ME instead said "approximately 25 days" (as indicated by the appellate decision), that's a red flag to me. It tells me that the ME is willing to tailor her testimony to match the prosecution theory. It tells me I can't trust her to tell me the unvarnished truth. I don't like that.
That alone certainly would not make me believe that Larry Swearingen might be innocent. I concluded he was innocent because of something else the ME testified about. The ME testified 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."
Uh, oh.
I realize most people believe that is evidence of Swearingen's guilt. After all, Trotter was killed before she could digest her last meal, and she met with Swearingen after 1:30 PM on December 8 when he bought some tater-tots, and the ME probably saw the remains of the tater-tots. That's why the prosecution brought it up. The jury bought it hook, line and tater tot.
I certainly could be wrong on this but I don't believe that stomach contents are going to be recognizable 25 days postmortem, assuming any contents remain at all.
Try this. Throw a few tater-tots in the woods, and some chicken, and maybe some greenish vegetable material, and come back in 25 days. Do you think you'll find anything recognizable? Do you think you'll find anything at all? I don't.
Perhaps, you may claim, the body actually protected the food from decaying. As a lay jury person, I would disagree. The stomach is not designed for food preservation or long term storage. It's not a tupperware container. It's a garbage disposal. It is designed to accelerate the decay of food. The stomach is a place of vicious acids and conspiring enzymes that won't go away simply because someone dies. Not only that, the body itself will decay substantially by 25 days postmortem, if left exposed and unrefrigerated. The same microbes that are consuming the body are not likely to eat around the food in the stomach.
As a juror, I would have disagreed with the ME. I would have concluded that Melissa Trotter did not die sometime near December 8. I would have concluded she died much closer to January 2 than December 8. Then I would have become even more troubled by the ME's approximate but convenient 25 day estimate, and dismissed her completely as an untrustworthy witness, one more eager to do the State's bidding than to tell me the truth.
And then I would have argued to my fellow jurors that they should remember that the body was not discovered during the first three searches of the area, though the searchers had come within 20 feet of the spot she was eventually found. I would have stood at one end of the jury room and pointed to the far end, and then I might have said:
"That's about 20 feet. Now, if I'm a searcher, I assume I have another searcher on my left and another on my right, and we are spaced apart such that nothing will pass between us unnoticed. If there are bushes there, we'll peak in the bushes. If there's a tree, we'll look all around the tree. Heck, we'll even look up the tree. Now Texas is asking us to believe they searched the area not just once, not just twice, but three times and they never saw the body? I'll tell you why they never say the body. Because it wasn't there. There was no body at that point. Melissa was still alive. She wouldn't be dead until later, until sometime shortly before the New Year."
"If they want me to believe the body was there during the three searches, they should have brought the searchers in to testify. I want to know how far apart they were spread. Was it 10 feet, 20 feet, 40 feet? They would have us believe it was 40 feet, wouldn't they, since the searchers allegedly came no closer than 20 feet to where she was found. That seems pretty far apart for a search team?"
"Why didn't they bring in the six searchers to testify? There could have been as many as six searchers who passed within 20 feet or so. It could have been one searcher passed on each side of the spot, two searchers per search, three searches, six searchers total. And no one saw, or smelled, a decaying body? Everyone coincidentally walked around the body, three times in a row?"
"They could have asked each of the searchers, do you just look for what's in the open or do you check behind rocks, and bushes, and trees, and woodchucks?'
"The reason this matters, of course, is that if Melissa Trotter died any time after December 11, then Larry Swearingen is absolutely, unassailably innocent. Remember? They arrested him on December 11 for unrelated charges, and they have yet to let him out. We'll I believe it's time to let him out. Unless someone can explain to me what I'm missing, I have no choice but to vote Not Guilty. You can argue all the other evidence you want to argue, but unless you can convince me that she was indeed killed before December 11, I have no choice but to vote not guilty."
In the next post in this series, you'll find out if I would have been right."
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The post can be found at:
http://www.skepticaljuror.com/2011/08/absolutely-astounding-case-of-larry_19.html
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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;
