Judge Stays Execution Pending Results of DNA Tests
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Larry Ray Swearingen case has been a difficult from its inception. We posted a blog about the case in February 2009.
The case began on December 8, 1998 when Melissa Trotter disappeared from the Montgomery County Community College. Three days later Montgomery County law enforcement authorities arrested Swearingen on outstanding charges which were unrelated to Trotter’s disappearance. There is some evidence that the following events occurred:
- Swearingen supposedly met Trotter on a Sunday, December 6, 1998.
- Swearingen, an electrician who lived in Willis, bragged to co-workers that he had a lunch date with Trotter on Monday, December 7. When Melissa did not show up for the lunch date, the co-workers teased Swearingen about being “stood up” by the college student.
- That Monday evening Swearingen, and two acquaintances, moved some furniture in his red pickup truck. He told the acquaintances of plans to meet Trotter the next day and a possible lunch. Later in the day Swearingen called Trotter from the house of one of the acquaintances and discussed meeting her for lunch and, perhaps, helping her with an exam.
- The next day, December 8, Swearingen met Melissa at the Montgomery County library where they sat around a computer amicably chatting. Swearingen arrived at the library at approximately 1:30 p.m., and he and Trotter left together at around 2:00 p.m. Trotter’s vehicle remained in the college parking lot.
- Five minutes after leaving the library Swearingen returned a page he had received. He told the calling party that he would call back later because he was having lunch with a friend.
- Swearingen returned to his trailer, and left sometime between 2:00 p.m. and 3:30 p.m. He returned again before 5:30 pm. He spoke to his landlord before leaving to go pick up his wife at her mother’s house. This time period was placed at sometime between 4:30 and 5:30 p.m. A neighbor saw Swearingen’s truck coming and going that afternoon, but could not identify the driver because of the vehicle’s tinted windows.
- Swearingen returned home with his wife after 5:30 p.m. She noticed a pack of Marlboro Light cigarettes and a red lighter on top of the television. This struck as odd because neither she nor Swearingen smoked. Trotter was known to smoke Marlboro Lights.
- During the evening hours of December 8, Swearingen called a former girlfriend, telling her he was in trouble and the police might be after him.
We have no way of independently verifying these facts, but accepting some or all of them as true, Swearingen was the one of the last people seen with Trotter before she disappeared. What can be verified is that Swearingen was arrested on December 11 on charges unrelated to Trotter’s disappearance. He reportedly volunteered to the arresting officers as they handcuffed him that his wrists and ribs were sore from a bar fight he had a week earlier. On January 2, 1999, Trotter’s body was found in the Sam Houston National Forest. The following evidence was compiled by law enforcement officials, medical examiners, and presented to the jury which, on July 11, 2000, found Swearingen guilty of capital murder and assessed his punishment as death:
- A piece of hosiery, still tied as a ligature, was around Trotter’s neck when her body was discovered.
- Trotter’s body was on its back in a pile of bushes. Her right arm was above her head and slightly to the left.
- Trotter’s top and bra was pulled up under her arms, leaving her breasts and back exposed. Her body had creases running from neck to waist, probably caused by lying on the pile of bushes.
- Trotter’s jeans were open but the fly was closed. A right rear pocket had been torn downward, exposing part of her buttocks and red underwear.
- No scratches on the body’s exposed skin indicated she had not been dragged to the spot where the body was found.
- One shoe was on Trotter’s body; the other lay nearby. No soil on the shoes indicated she had not walked to that location in the forest.
- Trotter’s body was discovered in a secluded, remote area in the forest. Police had searched the area three times without anyone seeing the body. One had to be within 20 feet of the body to see it.
- An autopsy revealed that Trotter died from asphyxia due to lack of oxygen caused by ligature strangulation.
- The nylon ligature was cut from a pair of pantyhose.
- A sharp-forced injury was inflicted to Trotter’s neck before she died while her blood continued to flow.
- There were no defensive wounds, such as broken fingernails, on the body, suggesting that the nylon ligature had been tied around Trotter’s neck after she was unconscious.
- The left side of Trotter’s face was darker than the other side, suggesting that the darker side had been caused by a bruise, perhaps the result of being struck in the face prior to death.
- There was a deep bruise on Trotter’s tongue, suggesting it had been caused by a bite or a cut from a blow to the chin which would have forced the lower jaw up onto the tongue, or by Trotter biting her own tongue while being strangled.
- There was discoloration on Trotter’s vaginal wall suggesting sexual intercourse on the day prior to her death.
This evidence clearly suggests that Trotter died in a particularly violent manner, and whoever killed her did so intentionally. The prosecution presented the following evidence to supporting its case against Swearingen:
- He was the last, or one of the last persons, to be with Trotter before she died.
- The matching portion of the pantyhose used to strange Trotter was found during a police search of Swearingen’s trailer. Two previous police searches had failed to uncover the pantyhose.
- Swearingen was reportedly familiar with the area where the body was discovered, having previously driven a date around the area a few months earlier in his pickup.
- Fibers removed from Trotter’s body were similar to fibers found on Swearingen’s jacket, on the seat and headliner of his truck, and on the carpet of the master bedroom of his trailer.
- Fibers found on Trotter’s jacket were similar to fibers found in Swearingen’s truck.
- Hairs found in Swearingen’s truck appeared to have been forcibly removed from Trotter’s head.
- Swearingen had lunch with Trotter on December 8. Contents in her stomach indicated she had recently eaten a meal prior to her death.
- Swearingen reportedly sent a letter while in jail to his mother which was written in Spanish by someone named “Robin” and addressed to “Larry.” The letter stated someone other than Swearingen killed Trotter. Prosecutors said Swearingen had used an English-Spanish dictionary to compose the letter and had gotten a cellmate to copy it.
The evidence against Swearingen, though circumstantial and not at all conclusive, appeared compelling. But the condemned inmate’s longtime attorney, James Rytting, has never accepted his client’s guilt. He has waged a remarkable and relentless crusade to establish Swearingen’s innocence. This effort includes, as recently reported in the Texas Tribune, the hiring of no less than “five scientists” who unequivocally concluded, based on the decomposition of Trotter’s body, that Melissa Trotter was killed after Swearingen was arrested on December 11. This means that whoever kidnapped Trotter on December 8 held her for at least a week after December 11 before killing her.
It’s an interesting, even intriguing theory, but one not accepted by Montgomery assistant district attorney Bill Delmore who has waged an equally relentless effort to see Swearingen put to death in the Texas death chamber. Delmore hired his own scientists who disputed the conclusions reached by Rytting’s scientists about Trotter’s time of death. In the midst of this ferocious legal battle, Swearingen has managed to stay alive with several timely stays of execution—the latest coming on January 30, 2013. The stay was issued by newly-elected Montgomery County district court Judge Kelly Case.
Judge Case’s stay of Swearingen’s scheduled February 27 execution date is significant for several reasons. First, it will provide Rytting and the New York-based Innocence Project time to have DNA testing conducted on several pieces of critical evidence: fingernail scrapings from Trotter, the piece of the pantyhose used to strangle her, the torn pantyhose found in or near Swearingen’s trailer, Trotter’s clothes, and cigarette butts found at the crime scene. Barry Scheck, co-director of the Innocence Project, had this to say about the DNA testing: “The Texas Legislature has made it clear that DNS testing should be allowed when there is a possibility it could help prove innocence, and the testing Mr. Swearingen is seeking could shed light on many unanswered questions in this case.”
Second, the stay underscored what appeared to be the typically reliant relationship between Swearingen’s former judge, Fred Edwards, and prosecutor, ADA Delmore. Edwards had conducted a hearing in February/March 2012 on the new anthropological evidence. After hearing evidence from Rytting’s experts and the State’s experts, Edwards denied Swearingen’s writ application. The Texas Tribune reported what happened next: “… Before transcripts of the hearing were completed, the judge told Delmore to write an order that supported the state’s view of the case. Delmore said he wrote the findings based on his extensive notes from the hearing and his memory because the transcript wasn’t available. The judge told Swearingen’s lawyers not to bother drafting an order that reflected their arguments. Edwards signed off on the state’s findings, and the Court of Criminal Appeals, which typically aligns with prosecutors, agreed to those findings, too.”
This judge/prosecutor relationship created significant controversy. Rytting said Delmore’s findings were one-sided and urged the Court of Criminal Appeals to review the hearing conducted by Edwards with a full transcript. Delmore, on the other hand, said it was a “common practice” for the winning side to draft findings the court could adopt. “I feel like I did accurately summarize the testimony,” Delmore said after Judge Case granted the latest stay. “I don’t think the findings of fact need to summarize all the testimony offered.” Rytting countered: “No matter where that judge got his information, he disregarded the science.”
Finally, the judge/prosecutor relationship had all the earmarks of the Judge Ken Anderson/DA John Bradley alliance that kept Michael Morton from having evidence DNA tested–testing which ultimately led to his exoneration. Delmore is attempting to defy the will and intent of the legislature that DNA testing be allowed when there is a reasonable possibility it would establish a prisoner’s actual innocence. Former Williamson County DA Bradley fought tooth and nail to keep Morton in prison by refusing to concede to the very DNA testing that indisputably exonerated him. Delmore has engaged in the same conduct in Swearingen’s case—with the blessing of Edwards. We don’t know if Swearingen is guilty or innocent, but he has raised several legitimate claims of innocence. Let science answer those questions, not Delmore.
Fortunately for Swearingen, Edwards was replaced as judge in last November’s elections. Kelly Case was elected to that position, and by granting the latest stay of execution in the Swearingen case, the new judge has signaled he is more focused on seeing justice served than being just another hack in the local courthouse gang, another rubber stamp for the prosecutor’s office. We applaud him for sending this signal of fairness and impartiality. After all, a man’s life is on the line and a few tests could confirm or deny his guilt.
It takes courage and character for judges to stand firm against prosecutorial demands. And if the DNA testing does not support Swearingen’s claims, and if there are no other grounds for relief in the case, we believe Judge Case will do what he was sworn to do—uphold the law.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization