"Unfortunately, such inexpert testimony is all too common, on both sides. It is extremely rare, however, when the expert will admit to his or her error. I therefore again congratulate Dr. Carter for her effort to correct a terrible injustice. However, I note again that she cheapened her that effort by not accepting responsibility for her mistakes. She blamed the attorneys and parties unknown."
THE SKEPTICAL JUROR;
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"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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"Somewhere I said that this was going to be a three part series. It won't be the first time I was wrong. Parts 1, 2, and 3 are here, here, and here. Those of you unfamiliar with the case should read those posts. The rest of us will wait here," the Skeptical Juror's post published on August 26, 2011 under the heading, "The Absolutely Astounding Case of Larry Swearingen: Part 4," begins.
"Welcome back. We had tea and crumpets while you were gone. Sorry we didn't save any for you," the post continues.
"After Larry Swearingen was convicted of murdering Melissa Trotter, based on overwhelming circumstantial evidence, ...
And after Swearingen had spent a decade or so in prison, ...
And after Dr. G.M. Larkin had published an unofficial addendum to the State's autopsy report, and therein proved beyond doubt that Swearingen must be factually innocent, ...
And after Dr. Joye Carter, the original medical examiner, agreed with Dr. Larkin that she had been wrong and Swearingen is without doubt factually innocent, ....
Then an acting medical examiner of the jurisdiction chimed in. He too agreed that Larry Swearingen is without doubt factually innocent. Here we go.
STATEMENT OF LLOYD WHITE. M.D.
My name is Dr. Lloyd White. I am a physician licensed to practice medicine in the State of Texas. I am boarded in pathology and specialize in forensic pathology. I was the Chief Medical Examiner for Nueces County, Texas. I am presently a Deputy Medical Examiner for Tarrant County, Texas. ...
I have reviewed the report of the autopsy of the body of Melissa Trotter conducted on January 3,1999, by then Harris County Medical Examiner, Joye M. Carter, M.D. I have reviewed autopsy and crime scene photos depicting the body of Ms. Trotter. ... I have also reviewed Ms. Trotter's Medical Records dated November 23,1998, and the October 1, 2007, addendum report of Dr. Gerald Larkin, as well as the October 31, 2007 affidavit of Dr. Joye M. Carter regarding autopsy findings in Ms. Trotter's case. The following opinion is based on the foregoing information:
1. I concur with the conclusions that Dr. Carter reached in her October 31, 2007 re-evaluation of her autopsy findings. As she indicates throughout her affidavit, findings made pursuant to her internal examination of the body support the forensic conclusion that Melissa Trotter's body was left in the woods within fourteen days of the discovery of the body on January 2, 1999, in the Sam Houston National Forest.
2. I agree, as well, with Dr. Larkin's conclusion that the forensic evidence in this case indicates that the body was in the Sam Houston National Forest for a shorter period than fourteen days. For reasons set forth by Dr. Larkin in his October l, 2007 addendum, the description of internal organs -- the pancreas, liver, spleen, gall bladder and gastro-intestinal tract -- indicate that the body was left in the woods at on or about December 23, 1998 at the soonest, and probably left there no sooner than December 27 or 28, l999.
3. Again, for reasons that Dr. Larkin gives in his October 1, 2007 addendum, the external appearance of the body also supports the conclusion that Ms. Trotter's body was exposed in the wood for several days only, and not for two or three weeks; so does the remarkable fact that Trotter weighed 109 pounds at her doctor's office according to the November 23, 1998 record, while her clothed body weighed 113 pounds at autopsy and the nude weight was 105 pounds.
4. In addition to the written findings Dr. Carter made, autopsy photos of several organs deserve attention.
a. Attached as exhibit 'A' is the photograph of the spleen Dr. Carter removed during autopsy. The spleen is an organ that contains many vascular spaces. The spleen can contract and enlarge, but is a relatively firm, spongy organ when living. It performs the important physiological function of removing red blood cells that are old or damaged and essentially worn out. After death the spleen autolyzes rapidly.
The spleen removed from Trotter has been dissected and there is a longitudinal incision through the spleen's capsular surface ... The edges of the incision are sharp. Autolysis appears to be minimal. The photograph of the spleen has the appearance of splenic tissue taken from a recently deceased individual. The spleen obviously has not liquefied and disintegrated as is typical in individuals who have been dead for several days.
b. Photographs of Trotter's heart show that the muscle is still red and relatively fresh looking. There are several long incisions and several shorter ones. The edges of the incisions are sharp. ... Again, the appearance of the heart is what one would expect to find upon autopsy of a recently deceased individual.
5. Autopsy photos of internal organs are consistent with the description of organs and the degree of decomposition found in the autopsy report. The photographic evidence strongly supports the conclusion that Ms. Trotter's body was left in the woods at least one week after Mr. Swearingen was incarcerated on December 11, 1998, and probably more than two weeks after.
I find Dr. Lloyd White to be particularly insightful. That's because in a follow-up report, he addressed the issue of the stomach contents that are so near and dear to my heart. It was Dr. Carter's testimony regarding the stomach contents that caused me to decide, as a vicarious skeptical juror, that Larry Swearingen must have been innocent. Here's what the esteemed and learned Dr. Lloyd White had to say about the stomach contents.
In bodies that have been exposed for more than several days under conditions in which Ms. Trotter's body was found, the stomach wall autolyzes [eats itself] and perforates, causing the contents to spill into the surrounding peritoneal space. This is because the stomach contains digestive juices one of which is hydrochloric acid. Upon death, when the tissues of the stomach are no longer producing protective secretions, these juices -- gastric enzymes and acids -- rapidly eat away the stomach wall causing the organ to disintegrate. Even in living persons, the gastric wall will perforate in a similar manner if subjected to an episode of ischemia [insufficient supply of blood]. ...
The State and the courts have argued that the Dr. Carter's findings upon dissecting the stomach support the State's theory that Ms. Trotter died at least twenty two days and as much as twenty-five days before her body was found. According to both the State and the courts, the stomach contents contained the remnants of a meal that Ms. Trotter ate either at the College Campus or at McDonald's restaurant on the day she disappeared. These allegations have always been, and remain, pure speculation unsupported by any of the facts in evidence.
Autopsy photographs of the stomach show chyme mixed with some bloody fluid that is probably due to the dissection. The description Dr. Carter gave at trial of the stomach contents is consistent with the ingestion of a wide variety of foodstuffs commonly served at home and at numerous institutions. Dr. Carter described pieces of white meat, some green vegetable material, and some white material that she thought might have been from a potato. Dr. Carter was unable to say what animal the white meat was from or what plant was the source of the green substance. There is, in fact, nothing at all about the stomach contents to suggest, much less conclude beyond reasonable doubt, that Ms. Trotter's body was exposed in the Sam Houston National Forest for more than two or three days.
Now that's high quality forensic medicine in action.
Then the chief medical examiner of Galveston County, Dr. Stephen Pustilnik, weighed in. He agreed with Drs. Larkin, Carter, and White that no way, no how could Melissa Trotter have been dead very long prior to the discovery of her body. Dr. Pustilnik also addressed a Hail Mary pass being offered up by the State: the possibility that Melissa's body had been refrigerated for some reason by an accomplice.
In summary, without prior refrigeration, the deceased was killed within reasonable certainty five to seven days prior to her discovery. ... In addition, the absence of mummification and dessication to the ears, as well as to the fingertips, is consistent with their not having been prior prolonged refrigeration of the deceased.
Given the now overwhelming, incontrovertible [dare I say] proof of Larry Swearingen's innocence, a number of substantial issues arise. I'll discuss only a few of them here.
First, Dr. Joye Carter clearly tailored her testimony to conform with the State's theory of the case. She selected the 25 day post mortem interval not because of the science for which she was responsible, but because it corresponded with the date Swearingen was last seen with the victim. She described the stomach contents not based on her examination, but based on what she had been told about the victim's alleged last meal. She was presented as an expert with no dog in the hunt, but that representation was far from the mark. She compromised her intellectual integrity to satisfy the State.
Unfortunately, such inexpert testimony is all too common, on both sides. It is extremely rare, however, when the expert will admit to his or her error. I therefore again congratulate Dr. Carter for her effort to correct a terrible injustice. However, I note again that she cheapened her that effort by not accepting responsibility for her mistakes. She blamed the attorneys and parties unknown.
Second, the case shows the danger of target fixation. The State had their man and no amount of evidence would deter them gaining a conviction. So convinced were they in their righteous indignation that they simply assigned no significance to the sudden appearance of Melissa Trotter's body. Though they had searched the area three times previous, without sight nor smell of the body, and though even to a lay person the body could not have appeared to be a month dead, they simply pressed on. They apparently did not even interview the searchers to determined if any had looked specifically in the spot where the body was found.
Third, the case shows that hair evidence experts are not. As if frequently the case, the hair matching evidence in this case sucked. Recall that the State claimed to have recovered two of Trotter's hairs from Swearingen's vehicle and claimed further they could tell the hairs were forcibly removed. [Deep sigh.]
Forth, someone planted evidence at Swearingen's residence. Recall that Trotter was strangled with one leg from a pair of pantyhose. Recall also that the other leg of pantyhose was found at the Swearingen's trailer. That's pretty damning evidence. As a juror, that would have for me been the most damning piece of evidence. Take note, though, that the other leg of the pantyhose was not found until the third search of Swearingen's trailer. The damning evidence showed up suddenly, just as the body did. The police searched and searched and found nothing. The suddenly, viola, just what they were looking for.
More specifically, after the third search of Swearingen's trailer, the police said they were given the other leg by the landlord, who found it while cleaning up the mobile home. Yet another expert [and I must now use that term quite loosely] identified the leg as a positive match to the one tied around Trotter's throat.
This case, I'm sad to say, is not all that unique with respect to its over-the-top confirmation bias. What is unique is that such incontrovertible evidence of innocence (other than DNA) surfaced after the conviction.
And still I'm not done with this three four five part series. The people of Texas still want very much to execute Larry Ray Swearingen. We'll talk about that next, and maybe wrap up this sordid tale.
Assuming we don't care if we execute yet another innocent person."
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The post can be found at:
http://www.skepticaljuror.com/
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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;
