STAY! Swearingen's Attorney: evidence proves innocence

Man in Montgomery County killing gets stay of execution
By RENÉE C. LEE Copyright 2009 Houston Chronicle Jan. 27, 2009, 12:22AM

For the second time, accused killer Larry Swearingen won a reprieve the day before he was to be executed by injection.

Swearingen, who was convicted of kidnapping, raping and strangling 19-year Melissa Trotter more than a decade ago, was granted a stay of execution by the U.S. Court of Appeals for the 5th Circuit on Monday. He was scheduled to be put to death Tuesday.

Swearingen, who has been on death row since 2000, was scheduled to die two years ago, but 24 hours before his Jan. 24, 2007 execution date, the Texas Criminal Court of Appeals granted him a stay.

Now, after many denied appeals, the federal appeals court has given Swearingen another chance to prove to his innocence. The court, in a unanimous decision, said his due process rights had been violated.

The crux of Swearingen’s petitions have focused on the time of Trotter’s death and new insect and pathology evidence that contradicts state evidence. His attorney, James Rytting, says the evidence proves that Swearingen could not have killed Trotter on Dec. 8, 1998, because he was in jail on an unrelated charge.

Swearingen’s latest appeal, filed last week, includes additional new evidence — preserved heart tissue from Trotter’s autopsy — which further supports Swearingen’s innocence, Rytting said.

“We’re glad that someone has stepped in,” Rytting said. “We think this is an extraordinary case of actual innocence. We’re hopeful that the federal courts will give the evidence a fair review.”

The case will now go to a federal district court.
Parents’ reaction

Monday’s ruling was another blow to Trotter’s parents, Charles and Sandra Trotter, who said they are disappointed.

“The whole thing is just hard to comprehend,” said Sandra Trotter. “How the federal court can make this ruling. ... It’s almost like the federal courts are more concerned about the criminals’ rights. What about Melissa’s rights?”

Montgomery County Assistant District Attorney Marc Brumberger, who handles post-conviction cases, said he is confident the state’s case will be upheld in federal district court.

Representatives of The Innocence Project, a group that works to exonerate wrongfully convicted people through DNA testing, have been working consultants on Swearingen’s federal court appeal.

“We’re gratified that they stayed the execution,” said co-director Barry Scheck. “These are extremely important scientific issues that focus on whether Larry Swearingen is guilty or innocent. It’s extremely important that all medical expert testimony be explored thoroughly in the court of law.”

Trotter disappeared from Montgomery College on Dec. 8, 1998. Witnesses said they last saw her on campus that day with Swearingen.

Trotter’s body was later discovered on Jan. 2, 1999, in the Sam Houston National Forest in Montgomery County with a piece of pantyhose around her neck.
Autopsy findings

Prosecutors contend that Trotter was killed on the same day she was abducted, and their evidence was bolstered by former Harris County medical examiner Dr. Joye Carter’s autopsy report. She had determined that Trotter’s body had been in the woods for 25 days, placing the date of death on Dec. 8.

Carter later changed her opinion in 2007, concluding that Trotter’s body could not have been left in the woods more than 14 days before her body was discovered.

Her reversal came after Rytting found experts, including current Harris County Medical Examiner Dr. Luis Sanchez, who said Trotter died after Dec. 11 and as late as Dec. 18. Their opinions were based on when they say insect infestation of Trotter’s body occurred. Swearingen was arrested on Dec. 11 and was in jail until his trial.

The experts also said Trotter’s body and internal organs were too well preserved to had been exposed to the elements for 25 days. Her intact organs would have liquefied, they said.

Carter noted in her original autopsy report that she had removed and dissected internal organs. In a signed affidavit, she said if she had been given additional information, her testimony about her autopsy findings would have been consistent with the experts’ findings.

Rytting has since found another expert, Tarrant County’s Deputy Medical Examiner Dr. Lloyd White, who says Trotter’s heart tissue — the new evidence in the federal appeal — shows well-defined cells that could only have come from a body dead less than two or three days.

In granting the stay, the federal appeal court on Monday said Swearingen’s due process rights were violated because his trial attorney failed to develop evidence from Trotter’s cardiac tissue.

The court also agreed that his trial attorney did a poor job in cross-examining Carter on the pathology evidence and that the “state sponsored false and misleading forensic testimony regarding when Trotter’s body was left in the forest.”

These two arguments were previously rejected by the state courts.

Brumberger said he believes the federal appeals court ruling was based on a misunderstanding of Carter’s affidavit.

“Dr. Carter stated that in her affidavit that she was not asked about the internal organs during the trial, so she didn’t take it into consideration,” Brumberger said. “The (federal appeals) court took that to mean the state didn’t present the evidence to her. She gave us the information to us. She had the information.

“I think this is a misunderstanding that will be cleared up in the federal district court,” he said.

Brumberger said the state has sought own its own experts to refute the new cardiac tissue evidence.

renee.lee@chron.com

To go to original and see related items: here

Amnesty International USA Urgent Appeal: here

Larry Swearingen Case Particulars website: here