Monday, September 5, 2011

LARRY SWEARINGEN; IS RICK PERRY READY TO EXECUTE AN INNOCENT MAN? REPORTER JORDAN SMITH; THE NATION;


"Courts in Texas have proven on numerous occasions that they do not consider scientific evidence as representing a gold standard for reliability. This has happened, infamously, in DNA cases; DNA science is considered so reliable that courts rely on it in the face of whatever circumstantial or eyewitness evidence would contradict it. In Texas, that has led so far to the exonerations of forty-four men, most convicted of sexual assaults—and more than one who had been sentenced to death.

The doctors in the Swearingen case are adamant that the science in question—histology and gross anatomy, the basic building blocks for modern medicine—cannot be dismissed. If the court rejects this evidence, they argue, they are turning their backs on the basic work done by the state’s forensic pathologists, tasked with determining both cause and manner of death, in thousands of cases each year."

REPORTER JORDAN SMITH; THE NATION;

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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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"As soon as Rick Perry threw his hat into the 2012 electoral ring, anti–death penalty critics brought up his staggering execution record as governor of Texas: 234 prisoners have been put to death under Perry’s watch, a number of whom had serious innocence claims,"
the Nation story by reporter Jordan Smith published on August 30, 2011 under the heading, "Is Rick Perry Ready to Execute an Innocent Man?," begins.

"Most famous among them is Cameron Todd Willingham, who was executed in 2004 and whose case opened up an investigation that Perry has taken aggressive—and largely successful—measures to squash," the story continues.

"But a lesser-known case could also haunt the governor if it reaches his desk: that of Larry Swearingen, convicted and sent to death row for the kidnapping, rape and murder of a 19-year-old college freshman named Melissa Trotter in 1998. Like Willingham, Swearingen was convicted largely on circumstantial evidence and a history of run-ins with the law. But Willingham was convicted based on the inexact science of arson investigations, whose flawed assumptions have been slow to evolve. The scientific evidence in Swearingen’s case, medical experts say, is beyond dispute—and it proves his innocence.

There’s another difference: Swearingen is still alive.

Swearingen was scheduled to die on August 18. But his execution was stayed in late July by the state’s highest criminal court, the notoriously pro-prosecution Court of Criminal Appeals, in order to have the trial court consider new evidence: Histological samples of Trotter’s cardiac, lung and vascular tissue that a growing number of doctors, including well-respected Texas pathologists, say show conclusively that Swearingen could not have killed Trotter.

But is that enough? The Swearingen case has raised questions about the intersection of science and the law: how courts and cops view science, and how decisions are made about what kind of scientific proof is “good enough” to override the type of circumstantial evidence that lends itself to the finality of conviction that Texas courts crave—especially in death penalty cases.

On December 8, 1998, during finals week, Trotter drove to campus for a biology class review at Montgomery College, just North of Houston. That night she failed to return to her parents’ house in Willis, a small town just eight miles away. This was especially odd since her brother, stationed at an overseas Army post, had come home for a break and the family—the two kids and their parents, Sandra and Charles—had dinner plans.

For weeks there was no sign of Trotter. Police repeatedly searched the dank pine woods of the Sam Houston National Forest, which surrounds the northern shores of the man-made Lake Conroe, located West of Willis. On January 2, a group of locals was out searching for firearms that had gotten lost while hunting a few days before—in the same area of woods that police had previously searched. They made a gruesome discovery: the body of a young woman. “At first I thought it was a mannequin,” Raglind told then–Montgomery County, Texas, prosecutor Michael Tiffin. “I mean…you’re not expecting to see a body,” he testified. “I walked up to it…I touched it…. It felt like flesh to me.”

It was the body of Melissa Trotter.

Even though it took several weeks to find her body, police had been fairly certain that Trotter was dead early on. What’s more, they thought they knew who was responsible: Larry Swearingen, a 27-year-old married electrician with a modest history of trouble with the law. Swearingen had been seen talking with Trotter at the college the day she disappeared. The police maintain that Swearingen was the last person to see her alive.

Three days after Trotter disappeared, police arrested Swearingen on outstanding warrants. After her body was found, Swearingen was charged with capital murder—according to the state, Swearingen kidnapped, raped and then murdered Trotter by strangling her with a single leg of pantyhose, cut from a pair, before dumping her body in the forest. Prosecutors sought, and got, the death penalty.

Yet Swearingen maintains his innocence, and his date with death has been postponed three times by the courts. At issue is the science surrounding Trotter’s death, specifically, the science of decomposition. Doctors say the histological evidence shows conclusively that Trotter had not been dead for twenty-five days when her body was found. Samples of Trotter’s tissue—taken almost three weeks after Swearingen was locked up—are consistent with that of a person dead less than a week. Despite doctors’ insistence that Trotter could not have been dead and her body left outside for nearly a month, Texas authorities remain unconvinced that this proves Swearingen’s innocence. Trotter’s parents, too, remain certain that Swearingen killed their daughter. “How long can they examine this evidence?” Sandra Trotter asked in the Houston Chronicle this summer. “From the victims’ rights view, when does this end?”

There is no doubt that Swearingen was among the last to see Trotter alive. The two were acquaintances—both lived in Willis, and Swearingen’s sister had gone to school with Trotter—and Swearingen saw Trotter the day she disappeared. He had gone to the college that day to talk with a campus cop, for whom he had promised to do some work, according to trial testimony, and he ran into Trotter while she was working at a computer in the library. According to Swearingen, it was the last time he saw her.

Although there was no direct evidence linking Swearingen to the murder, there was plenty of circumstantial evidence upon which the prosecutors rested their case. Most damning was a single leg of pantyhose discovered several days after Trotter’s body. Found by his landlord inside the trailer home that Swearingen rented with his wife, Terry, the pantyhose leg was a visible match to the leg found knotted around Trotter’s neck, a Texas Department of Safety analyst said at trial.

Swearingen did not do himself any favors at trial. Over the vociferous objections of his defense attorneys, he took the stand in his own defense, delivering a rambling testimonial. He said that on the day she disappeared, Trotter told him that she’d had a disagreement with another man—and he said that he’d actually seen her with this mystery man, but had failed to mention this to police. The college had no video surveillance, so determining whom Trotter was last seen with at the college is impossible.

Several witnesses who said they saw her talking to a man in the library could not positively identify Swearingen as that person. Instead, they described Trotter’s companion as blond—a description that Swearingen’s appeal attorney, Houston’s James Rytting says does not match his client, who has “dark hair and dark eyebrows; he’s a swarthy man.” In short, the witness testimony putting Swearingen and Trotter together at the college on the day she disappeared was tenuous and confusing. Still, to prosecutors it was far more cohesive than Swearingen’s muddled defense. And Swearingen’s defense team didn’t do much to challenge the state’s basic theory of the case, focusing their efforts instead on disputing the charges of rape and kidnapping, since without an aggravating offense, the murder would not be a capital crime. It was an effort to save their client from lethal injection.

It didn’t work. “When you stop and look at all of the evidence here…you’re going to see one thing,” prosecutor Tiffin said during closing arguments. “All roads lead to Larry Swearingen.”

Had Swearingen’s lawyers focused on the medical evidence more closely, they could have built another road—the one that Rytting has been developing since taking the case on appeal: medical proof does not match the state’s theory of the case, and points strongly toward another killer, he says. Evidence left unexplained includes male DNA found in Trotter’s fingernails, which does not match Swearingen. But more importantly, there is the tissue evidence that more than a half-dozen respected forensic scientists from Texas and beyond say is completely inconsistent with the state’s theory of Trotter’s death.

Dr. Lloyd White, a deputy medical examiner in Ft. Worth, first called into question the biological evidence in Swearingen’s case back in 2007. The autopsy, which had been performed by Dr. Joye Carter, then the chief ME in Houston, described organs that were easily dissected and weighed. Had the body been outside for nearly a month, White told Rytting, that would not be possible. North Carolina doctor G.M. Larkin agreed: “All pathological diagnoses are based on the fact that changes in death are predictable, cumulative and irreversible,” he wrote in his findings. In this case, the “undisputed forensic evidence,” was that Trotter did not die until late December.

In late 2007, Carter recanted her trial testimony, which claimed that Trotter had likely been dead for twenty-five days, saying that the internal organs belied that conclusion. Why she didn’t grasp the import of those findings in 2000 is unclear; Carter did not return calls requesting comment.

Then, in 2009, Rytting got access to the histological evidence Carter preserved in 1999, but which had never been made available to the defense for some reason. Analysis of those tissues, done with a high-powered microscope used in marine biology studies, were performed last year and again in June. The results have caused doctors to further shorten their timeline for Trotter’s death: Now, they say, it is likely that Trotter was dead only two or three days before being left in the forest—weeks after Swearingen was behind bars. “The way biological tissue reacts [during decomposition],” says Dr. Stephen Pustilnik, the medical examiner for Galveston County, Texas, who has also reviewed the evidence, “there’s no doubt about it. Period. End of story.” With the tissues under the microscope “looking as good as they do,” he concluded, “it’s incontrovertible.”

Under the microscope, Dr. White and a colleague, Dr. Gary Sisler, were able to see clearly the intact cellular structures of Trotter’s lungs, heart and vasculature, basic structures that break down quickly after death—and which certainly would not remain intact for a month in a body exposed to the elements. “Any reasonable person can easily comprehend what would happen to a piece of meat if it were periodically removed from an ordinary kitchen refrigerator, usually kept at 40 degrees, and left outside on the ground in 70 degree weather for three weeks,” the doctors wrote in their June 20 report.

Still unclear is whether the Texas courts or its prosecutors will understand, and accept, this basic biology lesson. William Delmore, the affable assistant DA in Montgomery County, a veteran Texas prosecutor, is unconvinced. “The science is mystifying to me,” he recently said. In fact, he’s concerned that maybe “more is being made of it than we should actually give credit for.”

That’s exactly the reaction thus far from the Texas courts. Although the Court of Criminal Appeals sent the case back to have the recent tissue evidence considered—judges have yet to be swayed that the decidedly less “hard” science—like the visual match of the pantyhose legs—should take a backseat to the biological analysis.

“The hallmark of a scientifically sound hypothesis is that it is consistent with, and accounts for, the totality of the known facts,” Texas appeal Judge Cathy Cochran wrote in a 2009 opinion in the case. “If Melissa did not die until December 29th, where was she and what was she doing from her disappearance…until 21 days later?”

That, of course, remains the question—and it is where science and the law have clashed in this case. University of Texas School of Law professor Jordan Steiker, who is a co-director of the school’s capital punishment clinic, says that it is a conceit of the law that science must overcome intuitive biases. “There’s this deep intuition that when someone disappears and they’re not heard from, that they’re not out there,” he explains. “That’s the hard thing that the science is running up against.”

Courts in Texas have proven on numerous occasions that they do not consider scientific evidence as representing a gold standard for reliability. This has happened, infamously, in DNA cases; DNA science is considered so reliable that courts rely on it in the face of whatever circumstantial or eyewitness evidence would contradict it. In Texas, that has led so far to the exonerations of forty-four men, most convicted of sexual assaults—and more than one who had been sentenced to death.

The doctors in the Swearingen case are adamant that the science in question—histology and gross anatomy, the basic building blocks for modern medicine—cannot be dismissed. If the court rejects this evidence, they argue, they are turning their backs on the basic work done by the state’s forensic pathologists, tasked with determining both cause and manner of death, in thousands of cases each year.

Basic science, according to Dr. White, proves that Swearingen could not have killed Trotter. “It isn’t possible that…Trotter was killed and her body left at that location by…Swearingen,” he wrote in a June 20 report. This conclusion is “affirmed beyond all reasonable doubt.”

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THE STORY CAN BE FOUND AT:

http://www.thenation.com/article/163034/rick-perry-ready-execute-innocent-man

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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;

AMANDA KNOX: CNN REPORTS ON MONDAY'S HEARING: (SEPTEMBER 5, 2011); STATE POLICE FORENSIC EXPERT DEFENDS HER DNA EXAMINATION;

"I think the prosecution is trying to take the independent experts' testimony away and frankly, I don't see that happening," Knox's father, Curt, told reporters after court adjourned Monday. "I mean, I think the independent experts have done a very good job in evaluating the information ... and I don't see it breaking down at this point. I see that it has been good for Amanda."
Patrizia Stefanoni, the Italian state police forensic expert who conducted the initial DNA examination presented at Knox's trial, testified Monday regarding the methods and equipment she used.
Stefanoni told prosecutor Manuela Comodi she was using older equipment at the time. While police now have better equipment that can analyze smaller amounts of DNA, she said the testing methods remain the same."
CNN;
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BACKGROUND: Ms. Knox, 23, from Seattle, and her co-defendant Raffaele Sollecito, an Italian, were convicted in 2009 and sentenced to 26 and 25 years in prison, respectively, for the murder of Meredith Kercher, 21, a British exchange student at the University of Perugia who shared a home with Ms. Knox. Both have denied wrongdoing and their appeal trial started last November. An Ivorian man, Rudy Guede, was also convicted of the crime and sentenced to 16 years. After Ms. Kercher’s half-naked body was found in her bedroom, her throat slit, on the morning on Nov. 2, 2007, prosecutors said she had been killed in a sexual escapade that spiraled out of control. (New York Times);

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"Perugia, Italy (CNN) -- Prosecutors fighting to keep American student Amanda Knox behind bars for murder in Italy defended on Monday the DNA tests that linked her to the killing of British student Meredith Kercher," the CNN story published earlier today begins.
"Knox is appealing her conviction and 26-year sentence for the murder of her housemate in 2007, with her defense team arguing that DNA evidence used in her original trial is not conclusive," the story continues.
"This summer two new forensic experts, professors Carla Vecchiotti and Stefano Conti, cast doubt on the DNA evidence that played a role in the convictions of Knox and ex-boyfriend Raffaele Sollecito.
"I think the prosecution is trying to take the independent experts' testimony away and frankly, I don't see that happening," Knox's father, Curt, told reporters after court adjourned Monday. "I mean, I think the independent experts have done a very good job in evaluating the information ... and I don't see it breaking down at this point. I see that it has been good for Amanda."
Patrizia Stefanoni, the Italian state police forensic expert who conducted the initial DNA examination presented at Knox's trial, testified Monday regarding the methods and equipment she used.
Stefanoni told prosecutor Manuela Comodi she was using older equipment at the time. While police now have better equipment that can analyze smaller amounts of DNA, she said the testing methods remain the same.
Authorities testified in 2009 that a knife found in Sollecito's home had traces of Knox's genetic material on the handle and Kercher's in a tiny groove on the blade. DNA on Kercher's bra was also traced to Sollecito.
The evidence against Knox
Amanda Knox timeline
Gallery: Amanda Knox's childhood
Vecchiotti testified that the knife tested negative for blood and the amount of DNA said to be Kercher's was so low, it could not be examined again with any conclusions. Vecchiotti and Conti also said there was no evidence the knife had been "thoroughly washed," as prosecutors argued during the trial.
Stefanoni said according to the protocol she used, the amount of DNA on the knife was sufficient and clearly attributable to Kercher. She said the new experts have equipment capable of examining very small DNA samples and that testing should have been done.
"Stefanoni has thoroughly and calmly clarified the principal elements of the work she carried out -- in a clear manner, given the complex subject ... during the examination at the time," Francesco Maresca, attorney for the Kercher family, said Monday. "I think she managed to get the court's full attention and to have damaged the independent forensic work."
Vecchiotti and Conti also said the clasp from Kercher's bloodied bra, which allegedly contained Sollecito's DNA, was "dirty" and had been allowed to rust, making further testing futile. The evidence, the two argued, should be "inadmissible."
Stefanoni is expected to testify about the bra clasp Tuesday. She testified Monday that she wore anti-contamination equipment when examining the DNA evidence.
"The appeals trial is very different from the first trial, obviously," Curt Knox said Monday. "And I see that, especially with the appeals trial asking for an independent review ... with the way the information came back from the independent experts, I see that this is turning (in) Raffaele and Amanda's direction."
Asked about his daughter, he said, "I got to hug her for a few seconds. She is anxious. She is happy that court is back in session again. It has been a long summer for her, knowing that she is innocent. ... She is anxious, she is hopeful and she is looking forward to a decision hopefully by the end of this month."
As the appeal heads into its final weeks, Kercher's sister on Sunday urged people not to get caught up in the details but to "please remember our beautiful Meredith."
"Amongst the media frenzy that has developed throughout, Meredith has been forgotten because she is no longer with us, yet this should be about her and what really happened on that tragic evening," Stephanie Kercher said in a statement distributed by Maresca, the family attorney.
Knox and Sollecito were convicted in 2009 of killing Kercher, 21. Sollecito was sentenced to 25 years in prison.
A third defendant, small-time drug dealer Rudy Guede, an immigrant from the Ivory Coast, was also jailed in connection with Kercher's death. He was sentenced to 30 years for murder and sexual violence following a fast-track trial in 2008, but his sentence was later cut to 16 years.
Kercher, a British exchange student, was found dead, seminaked and her throat slashed in the villa she and Knox rented in the central Italian university town of Perugia.
The two professors have said records about the machine that did the DNA testing were missing, suggesting the testing process itself may have been unreliable.
On Monday, prosecutor Comodi said the records had been found and asked the judge to admit them as evidence.
The defense argued they should not be admitted because they were not in the files originally given to the new experts. Comodi said Vecchiotti and Conti could have had them if they had asked for them.
Forensic experts for the two sides are expected to return to the stand Tuesday. This stage of the appeal is scheduled to run at least through Saturday.
Final arguments and summations are expected this month.
Kercher's sister Stephanie said the family was feeling "great concern as the rumours surrounding the original DNA evidence findings are spreading."
She said it was difficult for Kercher's family to understand how the evidence, so carefully developed and presented at trial, could be deemed irrelevant, and also to understand how a small amount could be useless when there is no determination of how much should be present.
Knox's defense seems "to focus and rely heavily on these two pieces of DNA evidence, but can we just remember for a moment what this case is actually about: my sister, a daughter brutally and selfishly taken from us nearing four years ago ... not a single day goes by that we can grasp any peace or closure."
She urged the public to remember the blood-splattered crime scene as well as 10,000 pages of evidence presented in the case.
"We still have confidence in the Perugia police and every faith in all those involved in court and the investigation," Stephanie Kercher said. Her family is asking that the appeals court assess each piece of evidence, "both scientific and circumstantial, as well as any witnesses who have taken the stand independently of any other information or media."
Maresca said Monday that Kercher's family has faith "in the whole baggage of evidence" aside from evaluation of the DNA on the knife and bra clasp.
"Please do not let Meredith die in vain," Stephanie Kercher said. "Her courage and strength fight on and we will seek justice so she can rest in peace." Her sister, she said, put up a fight for her life and did not give up, "and we will not give up now.""

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The story can be found at:
http://www.cnn.com/2011/CRIME/09/05/italy.knox.appeal/

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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;

LARRY SWEARINGEN; (3): THE SKEPTICAL JUROR'S VERDICT: FACTUALLY INNOCENT; PART THREE;


"Dr. Larkin then all but dares any reputable forensic pathologist to challenge his conclusion that Melissa Trotter was killed after Larry Swearingen was incarcerated. While I'm distressed that he did not mention anything about the stomach contents, I'm unwilling to dispute him.

So too was the original pathologist, Dr. Joye Carter. She had, by the time Dr. Larkin wrote his addendum to her autopsy report, moved on to become the Chief Forensic Pathologist for Marion County, Indiana. She actually prepared an affidavit agreeing with Dr. Larkin that she had incorrectly placed the date of death way too early. I include a few segments from her affidavit below."

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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"The people of Texas nearly put Larry Swearingen to death this month for the kidnapping, attempted rape, and actual murder of Melissa Trotter," the Skeptical Juror post published on August 24, 2011 under the heading, "The Absolutely Astounding Case of Larry Swearingen: Part 3," begins.


"In Part 1, I laid out the (nearly) overwhelming case against him. In Part 2, I provided further evidence of his moral turpitude. Then I explained why I would have voted Not Guilty, and fought hard to convince my fellow jurors to agree with me,"
the post continues.

"You should read those parts first if you are to understand this final post of the series. Part 1 will lead you to Part 2 which will lead you back here. I'll wait.

Welcome back. While you were gone, I was singing Infinity Bottles of Beer on the Wall. %% Take one down, pass it around, infinity bottles of beer on the wall. %%

The issue that caused me great trouble as a vicarious juror was that the ME, Chief Medical Examiner Joye M. Carter, M.D., FCAP, testified that the body had been dead approximately 25 days before it was discovered on January 2. That coincidentally (I'm sure) placed the approximate date of death on December 8, the day that Larry Swearingen was seen with her, the day he had a date with her.

That bothered me a little.

The ME also 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."

That bothered me a lot. I don't believe it is close to possible that the food would have been preserved for 25 days. I think that means she was killed not too long before she was found. Since Larry Swearingen was arrested on 11 December on unrelated charges, I concluded he couldn't have killed her.

It's now time to see if I screwed up.

Almost 10 years after the ME wrote her autopsy report, Dr. G.M. Larkin (of North Carolina, not Texas) prepared an addendum to the ME's autopsy report. Dr. Larkin's work has no particular legal standing. We consider it here for its scientific insight. Dr. Larkin made 21 points. I repeat or paraphrase them below.

1. Because Mr. Swearingen was incarcerated on December 11 and has remained in prison thereafter, the following forensic conclusion not only is supportable, it cannot be reasonably questioned , Someone else, not Mr. Swearingen, left the body of Ms. Trotter in the Sam Houston National Forest where it was found on January 2.
2. December 23, 2007, is the soonest that Trotter's body could have been left in the woods, which is to say 12 days after Mr. Swearingen was incarcerated. ... Indeed, undisputed forensic evidence, namely the external appearance and the description of the internal organs and tissues, and photographs of resected organs strongly support a date as late as ... nineteen days after Mr. Swearingen was incarcerated and three weeks later than the date the State maintains Trotter's body was left in the Sam Houston National Forest.
3. (In arriving at my conclusions, I have considered the weather.)
4. All pathologic diagnoses are based on the fact that changes in death are predictable, cumulative and irreversible. Changes are additive. (Also, I have accounted for the weather.)
5. (I have accounted for the weather.)
6. Dr. Carter's description of specific internal organs is sufficient to establish with certainty that Trotter's body was not left exposed in the woods until well after December 11, the date Swearingen was incarcerated.
7. If Trotter was killed in the woods or her body left in the woods near the time of death, the pancreas would not have been present in the condition described by Dr. Carter unless exposure in the Sam Houston Forest occurred after December 28.
8. Pancreatic cells produces digestive enzymes. upon death, metabolic processes that prevent the enzymes from acting on the pancreas' own tissue cells. Liquefaction of the pancreas to the point it looses internal structure and becomes a sludge incapable of being sectioned consequently may occur within 24 to 48 hours even under hospital or morgue conditions where the environment and temperature are controlled.
9. The condition of Trotter's spleen at autopsy supports the conclusion that Trotter's body was not exposed in the forest until well after Mr . Swearingen was incarcerated. Like the pancreas, the spleen autolyzes [digests itself] relatively rapidly even under hospital and morgue conditions. The autopsy report's description of the spleen, however, fits that of tissue from a recently deceased person. The ... organ has the appearance of tissue from a recently (3-4 days) deceased person.
10. Dr. Carter's examination of the liver is remarkable evidence that Trotter's body had not been in the woods for more than ten days and in all probability for far less time. The liver is a large organ that loses integrity and autolyzes [digests itself] relatively rapidly, forming gas bubbles as it does, which makes it crepitant, a bit like bubble wrap. However, Dr. Carter was able to remove the liver and section it, using essentially the same methods used upon the pancreas. Microscopic examination failed to reveal perforations due to gas bubbles ...
11. Dr. Carter's examination of the gastrointestinal tract strongly confirms the conclusion that Trotter's body was exposed ... for ten days or less. Dr. Carter found the esophagus intact. She dissected the stomach, and was able to rinse and examine the gastric mucosa. Dr. Carter also found both the large and small intestines intact and un-perforated. Further, the mucosal lining of the intestines was still present at autopsy.
12. Mucosa is a fragile tissue that readily decomposes under temperature conditions such as those reported ... The gastric mucosa and intestinal mucosa do not decompose in a living organism due to the protective enzymes that these tissues secret while functioning. After death, these tissues quickly disintegrate. In Trotter's case, the conditions in which the mucosa were preserved allowed Dr. Carter to identify them, examine them for pathology, and subject them to mechanical processes such as dissection and rinsing. It is a medical certainty, that these tissues would not have retained the integrity seen at autopsy unless the body had been left ... less than ten days prior to the date of recovery. Indeed, it is very unlikely that Dr. Carter would have found these tissues in the condition described at autopsy unless the body had only been exposed in the woods for substantially less time -- a matter of 3 to 4 days. ...
13. Dr Carter found that the breast tissue was "firm and intact." She was able to remove breast tissue, section it serially and examine it for pathology. The condition of this tissue corroborates conclusions that follow from Dr. Carter's description of internal organs.
14. Dr. Carter's descriptions ... and photographs depicting the external appearance of the body also supports the conclusion that Trotter's body was in the Sam Houston National Forest no more than ten days at the very longest. ...
15. Furthermore, crime scene reports indicate that the body did not have an odor even though daily high temperatures from December 29, 1998 through January 2, 1999 consistently approached 70 degrees Fahrenheit and average temperatures were near 60°.
16. Dr. Carter's ... reported that the weight of the body clothed was 113 lbs while the nude body was 105 lbs. Medical records show that approximately two weeks before December 8, 1998, Trotter weighed 109 pounds at her doctor's office. The weights are remarkable in that they demonstrate very insubstantial or no loss in body weight, Even if a corpse is not scavenged, and there was remarkably little scavenging in this case, a body will lose up to 90% of its weight, in less time than 25 days, when exposed under temperature conditions prevailing in the Conroe area ...
17. Dr. Carter states that the brain was in a semi-liquid state, and states further, that upon removal, there was complete loss of normal tissue architecture. However, the report shows that the brain retained sufficient integrity even upon removal to enable Dr. Carter to make judgments regarding the presence or absence of subdural and subarachnoid hematomas. Dr. Carter was also able to examine the parenchyma and exclude preexisting lesions. Her report indicates, too, that the ventricles were discernible and normal in appearance.
18. Under conditions prevailing in the Conroe area were the body was found, the brain in this case would have completely liquefied in a matter of days. If Trotter's body had been placed in the woods as late as December 23, 1998, Dr. Carter would not have been able to remove the brain for examination; it would have been a soup incapable of being examined for lesions or abnormalities. ...
19. Positive findings by autopsy establish that Trotter's body was not left exposed ... until December 23, 1998, at the very earliest. Besides positive findings, the absence of expected decompositional changes indicates exposure well after the date on which Mr. Swearingen was incarcerated. Bloating, for example, normally occurs after two or three days. It distorts breast and genital tissues, causing them to inflate grossly out of proportion. It also causes perforation of the stomach and intestines. However, Trotter's body did not exhibit any of the distorting changes caused by bloating and her gut was intact.
20. In wilderness areas ... considerable scavenging by birds and mammals take place, but the body from the neck down did not exhibit any insults that could clearly be attributable to animal activity even though crime scene photos show that the body was found with torso exposed, as were the upper extremities, which again, did not exhibit any scavenging at all.
21. The following forensic conclusion is therefore not reasonably debatable amongst competent forensic pathologists: Without question, Mr. Swearingen was not the person who left Ms. Trotter's body in the Sam Houston National Forest.

In summary, Dr. Larkin claims the following features of Mellissa Trotter's corpse preclude any possibility that she was killed earlier than December 23, 12 days after Swearingen had been incarcerated:

* Pancreas had not liquefied
* Spleen had not autolyzed (digested itself)
* Liver had not been perforated by its own bubbles
* Lining of gastrointestinal tract still retained its integrity
* Breast tissue still firm and intact
* Body has lost only 4% (not 90%) of its weight!!
* Brain was not liquified
* Body showed no signs of bloating; it did not smell
* Body not scavenged by animals, though torso and arms exposed

Dr. Larkin then all but dares any reputable forensic pathologist to challenge his conclusion that Melissa Trotter was killed after Larry Swearingen was incarcerated. While I'm distressed that he did not mention anything about the stomach contents, I'm unwilling to dispute him.

So too was the original pathologist, Dr. Joye Carter. She had, by the time Dr. Larkin wrote his addendum to her autopsy report, moved on to become the Chief Forensic Pathologist for Marion County, Indiana. She actually prepared an affidavit agreeing with Dr. Larkin that she had incorrectly placed the date of death way too early. I include a few segments from her affidavit below.

At trial in Mr. Swearingen's case I was asked if I had formed an opinion about the date of death in this case. Review of my trial testimony shows that I testified that I had formed an opinion that the date of death was 25 days prior to disappearance. As reflected in my testimony, this opinion was based primarily on the external appearance of the body. ...

Review of my trial testimony reveals that I was not asked by prosecutors, or by defense counsel, to address the significance of my internal examination of Ms. Trotter's body. Nor was I asked to address in detail the question of how long Ms. Trotter's body had been left exposed in the Sam Houston National Forest. ...

For the purpose of making this statement, I have reviewed ... several pieces of forensically important information that ... were not made available to during trial or pretrial proceedings. This information includes ... medical records giving Melissa Trotter's weight before she was reported missing ...

The medical record shows that Ms. Trotter weight 109 pounds at her doctor's office on November 23, 1998, two weeks before the date she was reported missing. ...

The forensic opinions, herein, address the significance of autopsy findings made during the internal examination of Ms. Trotter's body in the context of the foregoing information. They represent what I would have testified to at trial if I had been provided this information and if attorneys for the state and defense had asked me to address the significance of findings made pursuant to the internal examination of Ms. Trotter's body. ...

... The autopsy report reflects that internal organs were in their usual anatomic positions. Several of these organs, including the pancreas, the spleen and the liver, were dissected out, sectioned, examined for pre-existing pathology, photographed and described. Organ weights were near or within normal range.

Pancreas, spleen, and liver tissues is know to autolyze [self-digest] quickly. At room temperature, it is not unusual for these organs to liquefy within days. ... These internal findings support a forensic opinion that the body had not been exposed more than two weeks in the forest environment.

... The gastrointestinal system was found intact. Furthermore, gastric mucosa, a fragile tissue which decomposes quickly, was still present and was rinsed and described. ...

The weight of the Trotter's corpse at autopsy increases the level of confidence that can be placed in the forensic conclusions drawn from findings made during the internal examination of the body ... and supports a forensic opinion that Ms. Trotter's body was left in the woods within two weeks of the date of discovery.Well that certainly wasn't easy for her to write. I give her enormous credit for attempting to correct a grievous error, but I give her a low score for her efforts to explain away the error. She blamed the prosecutor and the defense attorney and everyone else as well for not telling her about Trotter's weight. (Assuming the body loses about 90% of its weight in 25 days, perhaps she believed Trotter weight 1050 pounds before she was killed.)

Well, that certainly wasn't easy for her to write. I give her tremendous credit for attempting to correct a grievous error. I give her substantially less credit for her efforts to put the blame on the attorneys for not asking the right questions, or for all the anonymous people who failed to tell her about Trotter's pre-death body weight of 109 pounds. Given that a body can lose 90% of its weight in 25 days, perhaps Dr. Carter believed Melissa Trotter weighed 1050 pounds just before she was killed.

Dr. Carter also claimed she was asked only about the external condition of the body. No way, I say. I remember specifically that she testified about the stomach contents, and I'm pretty sure that those are on the inside. And by the way, if the body loses 90% of its weight in 25 days, I'm guessing the stomach contents lose at least that much. In other words, I'm going to claim my suspicion about the stomach contents was correct.

We're not yet done with the case of Larry Swearingen. We still need to discuss why the people of Texas intended to execute him, even though it's now clear he could not have killed Melissa Trotter."

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The post can be found at:

http://www.skepticaljuror.com/2011/08/absoutely-astounding-case-of-larry.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;

Sunday, September 4, 2011

AMANDA KNOX; APPEAL RESUMES MONDAY: (SEPTEMBER 5, 2011); KING5.COM/ASSOCIATED PRESS; FOLLOWED BY WEST SEATTLE HERALD UPDATE;


"Independent experts hired by the court say that DNA evidence should be thrown out because it was likely contaminated at the scene by investigators.

Knox is serving a 26-year prison in Italy since for the death of her roommate, British student Meredith Kercher.

Meanwhile, Kercher's sister has written an impassioned letter to the Italian judges in the appeal trial, espressing scepticism about the new forensic evidence, reports the U.K. Guardian.

"It is extremely difficult to understand how evidence gathered with care and presented as valid at the original trial now risks becoming irrelevant," Stephanie Kercher said in the letter, according to an Italian translation. "Remember too all the other evidence that has been submitted up till now in this trial – 10,000 pages of evidence."

KING5.COM/ASSOCIATED PRESS; SEE WEST SEATTLE HERALD UPDATE FOLLOWING THIS STORY;

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BACKGROUND: Ms. Knox, 23, from Seattle, and her co-defendant Raffaele Sollecito, an Italian, were convicted in 2009 and sentenced to 26 and 25 years in prison, respectively, for the murder of Meredith Kercher, 21, a British exchange student at the University of Perugia who shared a home with Ms. Knox. Both have denied wrongdoing and their appeal trial started last November. An Ivorian man, Rudy Guede, was also convicted of the crime and sentenced to 16 years. After Ms. Kercher’s half-naked body was found in her bedroom, her throat slit, on the morning on Nov. 2, 2007, prosecutors said she had been killed in a sexual escapade that spiraled out of control. (New York Times);

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"PERUGIA, Italy -- Former UW exchange student Amanda Knox returns to Italian court Monday in the appeal of her murder conviction,"
the King5.com story published earlier today under the heading, "Amanda Knox during her appeals trial in Perugia, Italy, on June, 27, 2011," begins.

"Independent experts hired by the court say that DNA evidence should be thrown out because it was likely contaminated at the scene by investigators,"
the story continues.

"Knox is serving a 26-year prison in Italy since for the death of her roommate, British student Meredith Kercher.

Meanwhile, Kercher's sister has written an impassioned letter to the Italian judges in the appeal trial, espressing scepticism about the new forensic evidence, reports the U.K. Guardian.

"It is extremely difficult to understand how evidence gathered with care and presented as valid at the original trial now risks becoming irrelevant," Stephanie Kercher said in the letter, according to an Italian translation. "Remember too all the other evidence that has been submitted up till now in this trial – 10,000 pages of evidence."

Knox was convicted of sexually assaulting and murdering Kercher in 2007 in the apartment the two shared in Perugia. Knox's co-defendant and ex-boyfriend, Raffaele Sollecito of Italy, was convicted of the same charges and sentenced to 25 years.

Knox, 24, and Sollecito, 27, have denied wrongdoing and have appealed. The appeal trial's last hearing was held before the summer break, and much of the debate centered on a kitchen knife the prosecutors believe was the murder weapon.

The trial resumes September 5."


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The story can be found at:

http://www.king5.com/news/local/Amanda-Knox-returns-to-court-Monday-in-appeal-trial-129235448.html

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UPDATE: WEST SEATTLE HERALD; REPORTER STEVE SHAY;

UPDATE: Amanda Knox appeal trial continues Monday, Sept. 5. DNA experts to be challenged: Amanda's mother Edda & stepfather Chris Mellas optimistic. Mellas says court should finally "come clean"

"The appeal trial of West Seattle-raised Amanda Knox continues Monday, Sept. 5, after summer recess in Perugia, Italy, where she has been in prison for nearly four years. She is serving a 26-year sentence for the murder of her college roommate, Meredith Kercher. Her then boyfriend, Raffaele Sollecito is serving 25 years. Rudy Guede, the drifter originally from Ivory Coast, is serving 16 years because of a fast track trial.

Kercher family's lawyer, Francesco Maresca, who is suing Knox and Sollecito in a civil suit and believes they are guilty, and the prosecution, are expected to attack the legitimacy of the two court-appointed forensics experts and their findings. Because the experts were appointed by the judge, drama in the courtroom is expected to develop in the next few weeks as those experts have dismissed the prosecutions findings in the original trial of DNA on the so-called murder weapon, the knife, and other objects.

Legal experts point out that by attacking the forensics experts' reputations, the prosecutors and Maresca are also attacking the reputation of Judge Claudio Pratillo Hellmann who appointed the experts, putting them in a touchy situation. That, plus the fact that the star witness for the prosecution was dismissed as unreliable, has given Amanda's West Seattle family and supporters hope for acquittal. The verdict is expected by the end of September.

UPDATE: Sunday 7:50 am

The West Seattle Herald contacted Amanda's stepfather Chris Mellas by email this morning. He just returned to Perugia from his Arbor Heights, West Seattle home, and Amanda's mother, Edda, still in Arbor Heights.

Chris said, "Tomorrow (Monday) we expect to get the calendar for the rest of the court dates, through the verdict, we hope. I believe the day will start with Maresca (Kerchers' lawyer) asking questions to the court appointed forensics experts. After he is done. Then it will be our turn as well as Raffaele's legal team.

"So basically a continuation of the last hearing. Should be interesting because the judge did mention at the last hearing that he would be strict on questioning methods. Redundant questions would not be tolerated.

"We look at it as the case has no more evidence. No more witnesses. Plus the circumstantial stuff is without basis. Sexual assault? Prove that Amanda took a part in that. Staged break in? Does not look staged, and prove that Amanda took part in it. Theft? Again, prove that Amanda took part in it. Rudy is a proven thief, so why would it be Amanda or Raffaele??

"Rudy has been convicted of all this already. All the way through the Supreme Court. He can actually be called guilty of murder, rape, theft, breaking and entering.

"There is no evidence of Amanda or Raffaele taking part in this mess at all.
This is just the last remnants of the prosecutors' crazy theories where 2 plus 2 equals something around infinity plus 1.

"Rudy, the guy who was a known harasser of women, drug pusher, thief, and vandal. Also known to be a bit strange and creepy. His DNA, finger prints, and foot prints, are all over the place at the crime scene. So how would it be logical to think of Amanda and Raffaele as suspects?

The few points the police cited as suspicious turned out to be mistakes on the part of the police. The timing of the phone call, etc. So, they just need to come clean. Call Amanda and Raffaele innocent. Say they screwed up and that they are sorry for ruining 4 years of their lives, and the reputation of the Italian police, and call it good!

More unfounded theories will not fix their problem, as they have seen with the last 7 theories from Mignini. Convicting innocent people will not fix their problem. There isn't much that is more admirable than being able to admit fault or failure, graciously, and publicly. The police and prosecution have met this case with arrogance and stubbornness. Never have they exhibited any humility. And yet they wonder why their reputation is so tarnished...they need only look at themselves."

Edda said, "We are thrilled that so many people see that Amanda is clearly innocent. Support for her continues to grow and we appreciate each person.
Amanda has endured another horrible sweltering summer locked up. Each day she is there is terrible. Waiting when knowing the end of the appeal is so near is terrible.

"The court's independent (forensics) experts have been amazing! They supported everything our experts said, and then some!! No blood on the knife, no 'Meredith's DNA' and they even discovered bread residue on the knife. They are from the number one university in Italy and are very highly regarded."

We will continue to update this story."


The update can be found at:

http://www.westseattleherald.com/2011/09/03/news/update-amanda-knox-appeal-trial-continues-monday-

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;

CAMERON TODD WILLINGHAM; TEXAS TRIBUNE EXAMINES PERRY'S OVERSIGHT OF 234 EXECUTIONS; REPORTER BRANDI GRISSOM; IMPORTANT ARTICLE; GREAT READ;


"Dr. James Grigson, a psychiatrist and popular prosecution expert witness who earned the label “Dr. Death” because he rarely found defendants too mentally unfit to face the death penalty, told jurors Patterson was sane at the time of the murders. At trial, Patterson testified at length about devices the military had planted in his head.

From prison, he sent incoherent letters to the courts, including a 2004 letter to the Texas Court of Criminal Appeals, in which he wrote that he wanted to “conduct my legal work needed to stop the execution murder assaults injury execution date murder machines grave graveyard murder ...”

Shortly before his execution on May 18, 2004, the Texas Board of Pardons and Paroles recommended that Perry grant clemency, which Perry rejected. He worried that if he commuted the sentence, Patterson might be released on parole. Patterson’s last statement was a final testimony to his mental condition: “Statement to what? State what? I am not guilty of the charge of capital murder. Steal me and my family’s money. My truth will always be my truth. There is no kin and no friend; no fear what you do to me. No kin to you undertaker.”"

REPORTER BRANDI GRISSOM; THE TEXAS TRIBUNE; (I have followed this story with the Tribune's account of how it obtained the data it is based on from the Texas Department of Criminal Justice.)

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BACKGROUND: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses were suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire. Legendary "Innocence" lawyer Barry Scheck asked participants at a conference of the National Association of Criminal Defence Lawyers held in Toronto in August, 2010, how Willingham, who had lost his family to the fire, must have felt to hear the horrific allegations made against him on the basis of the bogus evidence, "and nobody pays any attention to it as he gets executed." "It's the Dreyfus Affair, and you all know what that is," Scheck continued. "It's the Dreyfus AffaIr of the United States. Luke Power's music video "Texas Death Row Blues," can be found at:

http://smithforensic.blogspot.com/2010/09/cameron-todd-willingham-texas-death-row_02.html

For an important critique of the devastating state of arson investigation in America with particular reference to the Willingham and Willis cases, go to:

http://smithforensic.blogspot.com/2011/01/fire-investigation-great-read-veteran.html

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"As Gov. Rick Perry touts his tough-on-crime policies on the national political stage, the case of Cameron Todd Willingham will continue to be scrutinized," the Texas Tribune story by reporter Brandi Grissom published on September 2, 2011 under the heading, "Under Perry, Executions Raise Questions," begins.

"Scientists have raised questions about whether Willingham set the blaze that killed his three daughters and led to his 2004 execution," the story continues.

"But Willingham’s execution is not the only controversial one the governor has presided over. During nearly 11 years in office, Perry has overseen 234 executions — by far the most of any recent governor in the United States — and has rarely used his power to grant clemency. He has granted 31 death row commutations; most of those — 28 — were the result of a 2005 U.S. Supreme Court decision banning capital punishment for minors.

Lucy Nashed, a spokeswoman for the governor, said the governor can only grant clemency when the Texas Board of Pardons and Paroles — whose members Perry appoints — recommends that action. He has only disagreed with the board three times when it recommended clemency in death penalty cases, she said.

“The governor takes his clemency authority very seriously, and considers the total facts of every case before making a decision,” she said. (Independent of the board, the governor may grant a one-time 30-day reprieve delaying an execution; Perry has issued one reprieve.)

To his critics, his parsimonious use of clemency is notable because of continuing concerns about the ability of prisoners facing capital charges in Texas to retain quality legal representation, the execution of those who were minors when they committed their crimes, the ability of some prisoners to intellectually understand their punishment and the international ramifications of executing foreign nationals.

The Tribune thanks our Supporting Sponsors

The Texas Tribune has compiled a database of all the executions in Texas under Perry’s leadership. Below, some of the most controversial, by category.

* Other Cases

Others with significant concerns of mental disorders:

* Michael Richard, executed Sept. 25, 2007
* Johnny Joe Martinez, executed May 22, 2002
* Bobby Woods, executed Dec. 3, 2009
* Monty Delk, executed Feb. 28, 2002
* James Colburn, executed March 26, 2003
* Elkie Taylor, executed Nov. 6, 2008
* James Clark, executed April 11, 2007
* Michael Hall, executed Feb. 15, 2011
* Milton Mathis, executed June 21, 2011

Mental Incapacity
Kelsey Patterson was sentenced to death for the September 1992 shooting deaths of Louis Oates and Dorothy Harris in Palestine.

Testimony showed that without provocation, Patterson walked up to Oates, 63, the owner of Oates Oil Co., and shot him. He shot Harris, 41, when she came out to see what was going on. Patterson then went to a friend’s home nearby, stripped down to his socks and waited in the street for police to arrive.

Dr. James Grigson, a psychiatrist and popular prosecution expert witness who earned the label “Dr. Death” because he rarely found defendants too mentally unfit to face the death penalty, told jurors Patterson was sane at the time of the murders. At trial, Patterson testified at length about devices the military had planted in his head.

From prison, he sent incoherent letters to the courts, including a 2004 letter to the Texas Court of Criminal Appeals, in which he wrote that he wanted to “conduct my legal work needed to stop the execution murder assaults injury execution date murder machines grave graveyard murder ...”

Shortly before his execution on May 18, 2004, the Texas Board of Pardons and Paroles recommended that Perry grant clemency, which Perry rejected. He worried that if he commuted the sentence, Patterson might be released on parole. Patterson’s last statement was a final testimony to his mental condition: “Statement to what? State what? I am not guilty of the charge of capital murder. Steal me and my family’s money. My truth will always be my truth. There is no kin and no friend; no fear what you do to me. No kin to you undertaker.”

* Other Cases

Others who were juveniles at the time of the crime:

* T.J. Jones, executed Aug. 8, 2002
* Toronto Patterson, executed Aug. 14, 2002

Juveniles
Napoleon Beazley was convicted of shooting John Luttig, 63, in Tyler during a 1994 carjacking. Beazley, 17 at the time, was driving around with two friends, a pistol and a sawed-off shotgun when they spotted Luttig driving a Mercedes and followed him to his home. Beazley, the trial record showed, shot Luttig in the head and stole the car, which he backed into a retaining wall and then abandoned.

A jury sentenced Beazley — a former high school class president and the son of a city councilman — to death in 1995.

The Supreme Court did not bar the execution of juveniles until 2005, but by the early 2000s, many states had prohibited the practice. As Beazley’s May 28, 2002, execution date approached, 18 Texas legislators wrote to Perry, asking him to grant clemency. Judge Cynthia Stevens Kent, the trial judge who would have to later sign Beazley’s execution warrant, also asked the governor to commute the sentence to life in prison. The requests were denied.

“To delay his punishment is to delay justice,” Perry told reporters at the time.

In a final statement the 25-year-old wrote that he was not the same person who had committed the murder. “I’m sorry that it was something in me that caused all of this to happen to begin with,” he wrote. “Tonight we tell the world that there are no second chances in the eyes of justice.”

* Other Cases

Other cases in which the executed did not fire the death shot:

* Joseph Nichols, executed March 7, 2007

Not the Shooter
Robert Lee Thompson did not fire the bullet that resulted in his 2009 execution. Thompson and his accomplice, Sammy Butler, robbed a Houston convenience store in 1996. Thompson shot one of the clerks four times. The man survived.

Butler shot the other clerk, Mansoor Bhai Rahim Mohammed, who died. During Butler’s 1998 trial prosecutors could not prove that Butler intended to kill Mohammed. He received a life sentence and is eligible for parole in 2036.

Jurors, however, assessed the death penalty against Thompson in 1998. Thompson had also been charged — but not convicted — in several other aggravated robberies, including three that involved murders.

The courts rejected the argument that Thompson should not receive a harsher sentence than his accomplice, but the Texas Board of Pardons and Paroles issued a rare clemency recommendation and advised that the sentence be commuted to life in prison.

“After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed,” Perry said in a statement, “I have decided to uphold the jury’s capital murder conviction and capital punishment.”

Thompson was executed on Nov. 19, 2009.

* Other Cases

Other cases with questions about adequate counsel:

* Robert Lookingbill, executed Jan. 22, 2003
* Willie Shannon, executed Nov. 8, 2006
* Johnny Johnson, executed Feb. 12, 2009
* Johnny Joe Martinez, executed May 22, 2002

Foreign nationals executed under Perry:

* Javier Medina, Mexico, executed Aug. 14, 2002
* Humberto Leal, Mexico, executed July 7, 2011
* Angel Resendiz, Mexico, executed June 27, 2006
* Jose Medellin, Mexico, executed Aug. 5, 2008
* Heliberto Chi, Honduras, executed Aug. 7, 2008
* Yosvanis Valle, Cuba, executed Nov. 10, 2009
* John Elliott, England, executed Feb. 4, 2003

Questionable Counsel
Leonard Uresti Rojas was convicted in 1996 of shooting to death his common-law wife and his brother. The appellate lawyer appointed to handle Rojas’ case was inexperienced, on probation with the state bar and suffered from mental illness, according to court documents. He had been disciplined for not adequately serving his clients and was serving three probated sentences from the bar while he was working on Rojas’ case. He missed crucial deadlines for filing appeals on Rojas’ behalf, effectively eliminating any chance he might have had for relief.

Shortly before his scheduled execution, new attorneys took on Rojas’ case. They appealed to the Texas Court of Criminal Appeals and asked Perry for a reprieve.

The pleas failed, and Rojas was executed on Dec. 4, 2002.

In a dissenting opinion published after the execution, Tom Price, an appeals court justice, scathingly rebuked the court’s decision. Death penalty appeals, he wrote, should not be left to lawyers with disciplinary problems and no experience.

“He neglected his duties,” Price wrote. “It is hard to imagine that there was no one more able or better qualified.”"

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The story can be found at:

http://www.texastribune.org/texas-people/rick-perry/under-perry-executions-raise-questions/

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THE STORY BEHIND THE STORY; HOW THE TEXAS TRIBUNE GOT THE EXECUTION DATA: BY RYAN MURPHY;

"This morning @TribData released a visualization of all executions in the state of Texas since Gov. Rick Perry took office in late 2000. The interactive was developed to run along side reporter Brandi Grissom's piece that looks at Perry's controversial past with executions.

So how did we make it happen?

The data comes from the Texas Department of Criminal Justice's executed offenders page, which has an HTML table with each row corresponding to each execution. Each row has basic information for each offender (name, age, race, date of execution, etc.), but also contains two cells with links to other pages, one with more in-depth offender information and another with their last statement.

To scrape the page, we decided to give ScraperWiki a shot. ScraperWiki, one of the 2011 Knight News Challenge winners, is an online tool that makes it possible to write web scrapers in Python, Ruby or PHP in an online editor. Because the code and data is public, it is possible to collaborate with other programmers on the same scraper.

Tribune developer Noah Seger and I teamed up to build this scraper, which created an entry in a SQLite database for each offender with the information in their row.

The Tribune thanks our Supporting Sponsors

So what about the two links? The last statement pages fortunately had a consistent layout. We had the scraper pull the page, grab the last batch of text from the table and add it to the database for that offender.

However, we weren't so lucky with the offender information page. Some of them were straightforward, with organized layouts we could parse though. The rest? Scanned images.

With more than 300 pages represented as JPGs, going through them by hand and typing out the data was not an option if we wanted this done anytime soon. We had to find a way to not only get all of this information as text but to do it as soon as possible.

Luckily, there is a service out there that makes it possible to get a very basic task such as transcribing done quickly. Amazon's Mechanical Turk allows users to set up a workflow that pays workers for the competition on a task. With Turk, we offered 10 cents per completely typed page, and had each page transcribed twice for redundancy. We set this up on Tuesday, and were hopeful it would be done by Thursday. But we underestimated the speed of the workers. By 8 p.m. Tuesday night, it was complete.

By attaching each offender's TDCJ number to the data provided by Turk, we were able to easily merge that information with what we successfully scraped. We returned to ScraperWiki and pulled in a csv of the Turk data, we had a complete database of all of the information found in the executed offender page and were able to go forward with designing what we released today."


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;

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LARRY SWEARINGEN; (2); THE SKEPTICAL JUROR'S VERDICT: FACTUALLY INNOCENT; PART TWO;


"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;