Although attorneys for death row inmate Larry Swearingen have not yet seen official transcripts from an evidentiary hearing ordered by the Court of Criminal Appeals, Montgomery County prosecutors say they've gotten word from trial Judge Fred Edwards that he intends to side with them and sign a ruling that would deny Swearingen's request for a new trial.
The nod from Edwards came during an in-chambers meeting held while Swearingen's lead attorney, James Rytting, was out of the country, Rytting said. Edwards' decision to proceed with a ruling without first having seen the final record, and without having read each side's proposed findings of fact and conclusions of law, culled from detailed scientific testimony heard over a period of two weeks earlier this year – legal briefs that both parties are required by law to produce – contravenes the seriousness of the proceedings, he said.
At issue is whether recently discovered forensic evidence – specifically, histological samples of the victim's heart, lungs, and vasculature, harvested at autopsy – can prove that Swearingen is innocent of the kidnapping and murder of 19-year-old Melissa Trotter.
Trotter disappeared on Dec. 8, 1998, during finals week at Montgomery College, where she was a student. That day, she attended a science class review and did some work on a college computer. And then she disappeared. Three days later, Swearingen was picked up on outstanding warrants and jailed; he's been behind bars ever since. Although a portion of the Sam Houston National Forest where he body was ultimately discovered had been searched multiple times, Trotter's body was not found there until Jan. 2, 1999, lying on the forest floor, with a scattering of leaf detritus across her front, not far from a recently cleaned deer carcass. Swearingen was an acquaintance of Trotter's and had been seen talking with her twice in the days just before she disappeared, including on Dec. 8 at the college. To the state, it was clear that Swearingen, then a 27-year-old married man with two small children and a history of run-ins with the local law, was guilty of the crime.
But medical experts from across the state who have reviewed the case now say that the histological samples retained at autopsy, which went unexamined until 2009, reveal well-preserved tissue that is incompatible with what would be found in a body that had been decomposing for 25 days. The new evidence prompted the CCA to stay Swearingen's August 2011 execution, sending the case back to Edwards for further review.
The two-week evidentiary hearing began in February (a bit of preview of that is here and here), and Swearingen called to testify several of the state's best known medical examiners – Galveston's Stephen Pustilnik, Tarrant County's Lloyd White, and Harris County's Luis Arturo Sanchez – each of whom agreed that the tissue samples do not comport with the 25-day "post-mortem interval." Prosecutors offered testimony from Werner Spitz, the octogenarian medical examiner who has been involved in a number of high-profile cases over the years, from investigating the John F. Kennedy assassination to testifying for the state during last year's trial in Florida of Casey Anthony, and whose conclusions in recent years ‐ including in the Anthony case – have occasionally been called into question after he has reportedly appeared at times to be confused while testifying. The state also called another celebrity scientist, entomologist Neal Haskell – not only did Haskell testify for the state at Anthony's trial, but he is also one of the inspirations for the television franchise CSI – who said that the bug evidence on Trotter was consistent with her having been dead since disappearance.
The conclusions of each side were, as expected, attacked vigorously by opposing counsel. The state says that while histology may be good for "disease recognition," there is no literature that supports the use of histological samples in determining time of death. The state also questions whether the samples that the defense has produced actually came from Trotter – prosecutor Warren Diepraam said that DNA testing was not possible on some samples and that one sample that was tested revealed male DNA; moreover, he said that there are gaps in the chain-of-custody for the samples, making their use as evidence questionable at best. Rytting says the state's problem, in part, is that it is acting as though histology can be used as a "fine-toothed comb to distinguish discrete dates," when in fact what it does is "establish a range and excludes" dates of death, as it has done in this case. Rytting says that histology is key to forensic pathology and to suggest that there is no literature to back up its use in determining post-mortem interval is ridiculous. Moreover, he says that under cross examination, Haskell admitted that he was basing his conclusions about bug activity on and around Trotter's body based on photos of the scene and not based on actual bug evidence.
As of this posting, Edwards had not yet signed off on the state's findings and conclusions, but Diepraam said that the state has argued that the judge should find not only that "there is no scientific basis for the defense's conclusions" about Trotter's death, but also that "entomology and taphonomy" – the study of how organisms become fossilized – are the most reliable sciences for determining how long a person has been dead. "We believe that's what [Edwards] is going to find," Diepraam said. "The defense is using junk science not supported by anybody; ours is supported by decades and hundreds of years of research."
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