PUBLISHER'S NOTE: The eyes of the civilized world should once again be focussed on the State of Texas which is about to execute a man on the basis of false science - even though a Texas lab now admits its experts overstated key findings in the murder trial. What's happening to America? I have been following this case from the creation of this Blog to the through five scheduled execution dates, followed by five stays of execution. How can a State be so cruel to one human being - and so persistent in its blind efforts to take a way a human's life in spite of the State's overwhelmingly flaw scientific evidence and forensic testimony? It's enough to make one weep.
Harold Levy: Publisher. The Charles Smith Blog.
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QUOTE OF THE DAY: "The Innocence Project’s Benjet noted that many proven wrongful convictions have been the result of false or invalid forensic science. “Especially where the United States Supreme Court has recognized that invalid forensic testimony contributed to 60 percent of wrongful convictions,” he said, “we should not execute a man based on science we now know is false.""
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PASSAGE ONE OF THE DAY: "Swearingen’s lawyers, James Rytting of Houston and Bryce Benjet of the Innocence Project in New York, contend that a combination of flawed science and overblown testimony has condemned an innocent man. Among their key arguments, in addition to the pantyhose analysis: Blood flakes were found under Trotter’s fingernails, enough to develop a full DNA profile, which was determined to be from a man — but not Swearingen. But a Texas lab technician testified at trial that the blood came from contamination in the lab, not a possible killer. Earlier this month, the Texas Department of Public Safety issued a second letter saying the technician had no evidence of contamination or knowledge of how that would have happened. ⋅ Though Trotter had been gone for 25 days, her body was not heavily decomposed. The county medical examiner testified at trial that Trotter probably had been dead for 25 days. But she later changed her mind to 14 days. Seven other forensic pathology experts have said Trotter’s death couldn’t have occurred more than two weeks before her body was found, and Swearingen had been in jail for 22 days before the discovery. [Read the Motion to Stay Swearingen's execution] Because eyewitnesses placed Trotter and Swearingen in different places around the time she went missing, sheriff’s deputies used cell tower records to show that Swearingen could have taken Trotter to his home and then to the forest soon after leaving the college. Experts for the defense contend police improperly inferred Swearingen’s locations from the towers his phone used, wrongly contradicting his alibi and witnesses. The prosecutors used the same state lab technician who matched the pantyhose to say that hair found in Swearingen’s truck came from Trotter, and that polyester fibers from the truck were found on Trotter’s coat. But the fibers were from a mass-produced product, and hair comparison evidence has been widely discredited since 2000.
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PASSAGE TWO OF THE DAY: "Swearingen has had five scheduled execution dates, followed by five stays of execution. Rytting, who has represented Swearingen for more than 15 years, has long challenged the science behind the evidence, particularly the conclusions about the decomposition of Trotter’s body, but has never fully convinced the courts of his view that there are “very deep problems with the forensics in this case.” Now, time is running short. “They may put Swearingen in the ground,” Rytting said, “but this case will not die with him. This case has questions that will still be asked."
STORY: "Is Texas preparing to execute an innocent man, Larry Swearingen, in slaying of Melissa Trotter?," by reporter Tom Jackman, published by The Washington Post on August 17, 2019.
SUB-HEADING: "Did faulty science, and bad testimony, bring Larry Swearingen to the brink of execution? Texas lab now admits its experts overstated key findings in murder trial, but execution still set for Wednesday."
GIST: "Shortly
after 19-year-old Melissa Trotter disappeared from the campus of
Montgomery College, north of Houston, the police suspected Larry
Swearingen, a 27-year-old electrician, had killed her. They even tossed
him in jail on traffic charges three days after Trotter vanished. Her
body wasn’t discovered for another three weeks, in January 1999, in Sam
Houston National Forest. She had been strangled with one leg of
pantyhose. Though Montgomery County, Tex.,
sheriff’s deputies searched Swearingen’s trailer twice, it wasn’t until
after Trotter’s body was found that a landlord discovered another leg of
pantyhose in Swearingen’s residence. A lab technician from the Texas
Department of Public Safety testified that it was “a unique physical
match” to the hose wrapped around Trotter’s neck, “to the exclusion of
all other pantyhose.” At trial, the Montgomery prosecutor told the jury
that the hose was “really, the smoking gun, if you would, the
irrefutable evidence … The smoking gun, folks.” Except, perhaps, it wasn’t. Two
experts in fiber analysis who compared the pieces of hose have since
concluded they don’t match when lined up next to each other, and a third
said the state technician’s testimony was overstated. And last month,
the Texas Department of Public Safety said the technician should not
have testified the pieces matched “to the exclusion of all others.” Swearingen,
who has maintained his innocence, is set to be executed Wednesday. His
lawyers, citing the pantyhose testimony and other evidence they contend
is flawed, are trying to halt it. Swearingen
testified at his capital murder trial that “I did not put no pantyhose
around her neck … To take your hands and strangle somebody, that’s not
me.” Trotter was his friend, he has said. The two were seen having a
friendly conversation in the college student center on Dec. 8, 1998, the
day Trotter was last seen. No one witnessed Trotter being abducted,
sexually assaulted or murdered. A jury found Swearingen guilty of
capital murder in June 2000 and sentenced him to death. On
Friday night, both the Texas Court of Criminal Appeals and the U.S.
Court of Appeals for the 5th Circuit rejected Swearingen’s motion for a
stay of execution. “Swearingen’s ‘new’ claims in this latest phase could
not possibly have made any difference to the outcome of his trial,”
Circuit Judge Stuart Kyle Duncan wrote. Swearingen’s lawyers said
Saturday they would now appeal to the U.S. Supreme Court. Texas
prosecutors are convinced that Swearingen is a murderer who became
angry when Trotter stood him up for a lunch date, and they have
successfully defeated his appeals at the state and federal levels. The
U.S. Supreme Court has twice declined to hear his case. Montgomery
County District Attorney Brett Ligon declined to comment on the new
filings, but in 2017, he wrote, “We remain absolutely certain of
Swearingen’s guilt of Melissa Trotter’s murder.” Trotter’s
parents, Charles and Sandy Trotter, also are confident that Swearingen
killed their daughter. For them, the appeals and dates of executions and
stays have seemed endless. “It’s like a dark cloud hanging over us for
all these years,” Sandy Trotter told the Houston Chronicle in 2017,
before another stay of execution was issued. Melissa
Trotter, 19, disappeared in December 1998, and her body was found in
January 1999. Larry Swearingen was convicted in summer 2000 of her
murder and faces execution on Wednesday. (Billy Smith II/Houston
Chronicle. Swearingen’s lawyers,
James Rytting of Houston and Bryce Benjet of the Innocence Project in
New York, contend that a combination of flawed science and overblown
testimony has condemned an innocent man. Among their key arguments, in
addition to the pantyhose analysis: Blood
flakes were found under Trotter’s fingernails, enough to develop a full
DNA profile, which was determined to be from a man — but not Swearingen.
But a Texas lab technician testified at trial that the blood came from
contamination in the lab, not a possible killer. Earlier this month, the
Texas Department of Public Safety issued a second letter saying the
technician had no evidence of contamination or knowledge of how that
would have happened. ⋅
Though Trotter had been gone for 25 days, her body was not heavily
decomposed. The county medical examiner testified at trial that Trotter
probably had been dead for 25 days. But she later changed her mind to 14
days. Seven other forensic pathology experts have said Trotter’s death
couldn’t have occurred more than two weeks before her body was found,
and Swearingen had been in jail for 22 days before the discovery. [Read the Motion to Stay Swearingen's execution] Because eyewitnesses placed Trotter and Swearingen in different places
around the time she went missing, sheriff’s deputies used cell tower
records to show that Swearingen could have taken Trotter to his home and
then to the forest soon after leaving the college. Experts for the
defense contend police improperly inferred Swearingen’s locations from
the towers his phone used, wrongly contradicting his alibi and
witnesses. The prosecutors used the same state lab technician who matched the
pantyhose to say that hair found in Swearingen’s truck came from
Trotter, and that polyester fibers from the truck were found on
Trotter’s coat. But the fibers were from a mass-produced product, and
hair comparison evidence has been widely discredited since 2000. In
his 19 years on death row, Swearingen has had five scheduled execution
dates, followed by five stays of execution. Rytting, who has represented
Swearingen for more than 15 years, has long challenged the science
behind the evidence, particularly the conclusions about the
decomposition of Trotter’s body, but has never fully convinced the
courts of his view that there are “very deep problems with the forensics
in this case.” Now, time is running short.
“They may put Swearingen in the ground,” Rytting said, “but this case
will not die with him. This case has questions that will still be
asked.” [FBI overstated forensic hair matches in nearly all criminal trials for decades] Though
Texas is notorious for its rate of executions — it has 10 scheduled in
the next three months — it also has one of the most progressive laws in
the country to enable defendants to challenge convictions on the basis
of newly discovered scientific evidence. Spurred in part by “junk
science” testimony that led to wrongful convictions, Texas law allows
testing of DNA and other materials even if they weren’t issues in the
original trial. When Rytting and Benjet were
looking to challenge the cellphone evidence against Swearingen, they
consulted Mike Cherry, a forensics consultant from Falls Church, Va.,
who had previously helped exonerate an Oregon woman
convicted of manslaughter. Cherry’s team dissected the use of cellphone
records by the Montgomery County authorities, disputing their
conclusions, and then turned to the pantyhose evidence. First
they reviewed notes of Texas crime lab technician Sandy Musialowski,
who had been provided the hose found around Trotter’s neck and the hose
found in Swearingen’s trailer. Musialowski initially wrote that she
found “no physical match between ligature and pantyhose.” Her notes,
not provided to the original defense team, show that over the next
several days, “she was working to make one piece fit the other,” Cherry
said. The following year, she testified that the two pieces were a
unique match. Cherry provided photos of the
evidence to Deborah Young, a professor of textile science at Cal Poly
Pomona. “At first glance, the two pieces appear to connect,” Young said
in an affidavit filed earlier this month, “but once the deliberate space
between them is removed, it becomes quite clear that they do not match …
My opinion is that while both pantyhose were cut in the same basic
silhouette, they were not cut from the same piece. These are not a
match, and certainly not to ‘the exclusion of all other pantyhose’” The
pantyhose used to strangle Melissa Trotter was compared with a piece of
hose found in Larry 's trailer, and a lab technician
testified at trial that they were a match. (Montgomery County Judicial
District Court). The
two pieces of pantyhose critical to the murder conviction of Larry
Swearingen are placed next to each other, seeming to show they don't
match. (Cherry Biometrics) Affidavits
were provided by two other experts, including Max Houck, a former head
of the D.C. crime lab, who said Musialowski’s testimony was “unwarranted
given a deficit of scientific and statistical support for this type of
comparison. It is not possible to check these exhibits against all other
possible targets.” Last
month, Brady W. Mills, the director of the Texas crime lab, issued a
letter saying Musialowski’s testimony went too far. He said “the terms
‘unique’ and ‘to the exclusion of others’ were common language
throughout the forensic community, at the time … Today we would report
that the two pieces were once joined, but would not include the
statement ‘to the exclusion of all others.’” He maintained that
Musialowski “did not err in her reporting or testimony,” only that in
2019 “the terminology would be different.” Swearingen’s
lawyers then focused on the blood flakes and DNA found under Trotter’s
fingernails, seemingly indicating someone other than Swearingen had
scuffled with Trotter before her death. At Swearingen’s trial, Texas lab
serology expert Cassie Carradine testified that the blood was “bright red,” indicating it was new and not from the body of someone who had
been dead for 25 days. Carradine concluded that the blood was probably
dropped “either at the time the sample was being collected” at autopsy
“or after the sample was being collected,” meaning it was from someone
other than the killer. Carradine later went on to run the Austin police
DNA lab, which was closed in 2016 because of mismanagement, This
month, Mills, the director of the state crime lab, issued another
letter saying Carradine’s testimony about the blood in Swearingen’s case
was inappropriate. Carradine “had no direct knowledge about how the
evidence in question was collected or stored prior to its submission” to
the lab, Mills wrote. “Nonetheless, during testimony, she expressed an
opinion that the profile from a particular sample was the product of
contamination … The full range of possibilities include contamination or
that it was not contamination and the [DNA] profile [excluding
Swearingen] did come from the evidence.” “Carradine’s
explanation that the blood resulted from postmortem contamination,”
Rytting and Benjet wrote in their motion for a stay, “eviscerated
Swearingen’s most powerful evidence of innocence at trial — namely, that
Trotter, after her disappearance, had been involved in a physical
struggle with an unknown male.” They noted that appeals courts relied on
that testimony in rejecting Swearingen’s appeals. The
fact that Trotter’s body was not in an advanced state of decomposition,
though prosecutors believe she had been dead for 25 days, has long been
a point of contention for Swearingen’s team. Swearingen was jailed
three days after Trotter’s disappearance on Dec. 8, 1998. She was found
Jan. 2, 1999, in an area of Sam Houston National Forest that had
previously been searched. Larry
Swearingen listens to the jury's guilty verdict on the charge of
capital murder in the death of Melissa Trotter. (Christobal
Perez/Houston Chronicle); Joye Carter,
the Harris County medical examiner, testified at trial that she
believed Trotter had been dead for “25 days or so,” but in 2007 she
signed an affidavit saying the body had been left in the woods “within
two weeks of the date of discovery.” Four other forensic pathologists
estimated that Trotter’s body had been in the forest for different
ranges — one said two to three days, one said three to four days, one
said five to seven days, and another said 10 to 15 days. A forensic
anthropologist and three forensic entomologists, examining the insects
found on Trotter, estimated the time of death as around mid-December,
but long after Swearingen’s arrest. In 2016,
Victor Weedn, a forensic pathologist at George Washington University and
former president of the American Academy of Forensic Sciences, issued a
report saying there was “considerable evidence to suggest that Ms.
Trotter was not killed on the day of her disappearance, but was held,
killed later, and her body dumped in the Sam Houston National Forest,
sometime after the arrest and incarceration of Mr. Swearingen.” Weedn
said in an interview that “the issue of postmortem interval
determination, based on pathology, is extremely variable, and it’s
fraught with problems … Having said all of that, it does appear that
there’s few experts on the prosecution side and many on the defense
side” in the Swearingen case. The pathologists
agreed that temperatures, which fluctuated from the 30s to the 70s in
the days after Trotter’s disappearance, can affect the rate of
decomposition, and that body organs typically decompose quickly after
death, but Trotter’s organs were able to be sectioned and examined by
Carter. Prosecutors
said Swearingen was angry at Trotter for not showing up for a lunch
date the day before her disappearance. But co-workers of Trotter’s said
she was dating Swearingen and didn’t fear him. One of the co-workers,
Lisa Roberts, had grown up with Swearingen in nearby Willis, Tex., and
testified that Trotter was receiving vulgar, threatening phone calls
from a different man at the call center where they worked. Roberts said
Trotter cried after some of the calls, that Roberts took a couple of the
calls, and that in one the man said, “I’ll strangle you. I’ll choke the
life out of you.” Roberts said that she told
the police about the calls and threats but never heard about them again.
Prosecutors at trial denigrated the man as “the mystery man” on whom
Swearingen was falsely trying to pin the slaying. Witnesses
at Montgomery College said they saw Trotter in the student center on
the afternoon of Dec. 8, but not with Swearingen. One of Trotter’s
instructors, whose study session Trotter had just left, saw her at 2
p.m. with “a large light-haired man,” according to her police statement.
Swearingen had jet black hair and was wearing a “garish orange western
wear jacket” that day, Rytting said. Two students gave police statements
saying they saw Trotter get food sometime between 2 p.m. and 2:30 p.m.
and eat alone. Meanwhile, Swearingen’s landlord saw him at his trailer
alone, 21 miles from campus, from 2:30 to 3 p.m., and he was seen later
in the afternoon by other witnesses. Prosecutors said Swearingen could
have taken Trotter to his trailer, raped and killed her, dumped her in
the forest and then returned to the area to be seen by others. The
Innocence Project’s Benjet noted that many proven wrongful convictions
have been the result of false or invalid forensic science. “Especially
where the United States Supreme Court has recognized that invalid
forensic testimony contributed to 60 percent of wrongful convictions,”
he said, “we should not execute a man based on science we now know is
false.""
https://www.washingtonpost.com/crime-law/2019/08/17/did-faulty-science-bad-testimony-bring-larry-swearingen-brink-execution/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. 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 Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. 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 Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
