death penalty news—-TEXAS

Jan. 10


Death row inmate seeks to expedite execution

Richard Tabler is on death row for the murder of two men, and is accused
to making threating cell phone calls from prison. A man who wants to be
put to death won't have his way just yet. Richard Tabler is on death row
for killing four people in Bell County in 2004 and has repeatedly asked
for his appeal to be waived so his execution could proceed.

But Appeals Attorney Karl Krug says Tabler wont get his way until 2
proceedings take place. One of those, a jury trial, is already over. But
the Court of Criminal Appeals is currently deciding the case.

"So whether he wants to get executed right now is irrelevant," Krug said.

Tabler has used multiple tactics to help seal his own fate. One of the
most widely publicized was when he used a smuggled cell phone from inside
his prison cell to call a State Senator from Houston, John Whitmire, to
make threats against Whitmire's family. The incident prompted Governor
Rick Perry to order a lockdown of all state prisons.

"The object of those calls is not to intimidate these people, the point is
to get himself executed as quickly as possible," Krug said.

He has also written multiple letters to the court system in order to waive
his appeals processes, as well as threatened several lawyers.

Krug says she is not expediting a death sentence for her client faster
than what Constitutional Rights allow. "It's not my job to get people
killed. It's my job to make sure their constitutional rights are
observed," says Krug. "It's not about what he wants, it's about what
society as a whole wants."

The case has been briefed and argued, and now Tabler's fate is up to the
Criminal Court of appeals to decide. Once a decision is made, a death
warrant could be issued for Tabler, and an execution would take place soon
after that.

Attorney Karyl Krug expects that a decision will be made and the execution
would proceed from there. Tabler will have the right to change his mind
and proceed with the appeals process as normal.

(source: KEYE News)


The Science of Murder

Someone killed Melissa Trotter and dumped her body in the Sam Houston
National Forest. But according to 6 forensic experts, that someone was not
Larry Swearingen.

Innocent men in prison often have 2 things in common. They stubbornly
refuse to plead guilty, even if it means a reduced sentence or freedom.
And they never quit trying to prove their innocence, whether it's by
writing letters to lawyers and journalists, filing writs on their own, or
just camping out in the prison library studying law books or anything else
that could help their cases. The wrongly convicted never give in, and they
never give up.

Larry Swearingen, an 8-year resident of Texas's death row, is almost
certainly a member of this unhappy group. From the beginning, when he was
arrested in December 1998 for murdering Melissa Trotter in rural
Montgomery County, just north of Houston, he has insisted he didn't do it.
He never asked for any kind of a plea deal, once saying, "I'm not going to
plead guilty to something I didn't do." He took the stand at his trial and
testified that he didn't kill Trotter. Ever since, he has worked
diligently from his cell at the Polunsky Unit to prove his innocencefiling
writs to the court system, writing letters to journalists, even poring
over climatological charts to prove his case.

But there are other reasons besides pride and perseverance to believe that
Swearingen didn't kill Trotter. 6 different physicians and
scientistsforensic pathologists and entomologistssay there's almost no way
Swearingen could have done it. One of those doctors was instrumental in
convicting Swearingen back in 2000 but has now changed her mind after
seeing all of the evidence. Dr. Glenn Larkin, a retired forensic
pathologist in Charlotte, North Carolina, says, "As a forensic scientist
since 1973, I always kept an objective stance when called to testify;
however, there comes a point when as a human, and as a Christian, there is
a mandate to speak in the interest of justice. This is a moral issue now;
no rational and intellectually honest person can look at the evidence and
conclude Larry Swearingen is guilty of this horrible crime."

And it is a moral issue with real urgency. Swearingen just got an
execution date of January 27. His lawyers are frantically trying to get a
stay of execution as well as DNA testing. If they don't succeed, it is
entirely possible, even likely, that the State of Texas will execute an
innocent man in 2 1/2 weeks.

A Shaky Case

Back in 2000, the prosecutors of Montgomery County used mostly
circumstantial evidence, some of it remarkably weak, to convict
Swearingen. Trotter was a 19-year-old student at Montgomery College in
Conroe when she disappeared on December 8, 1998. An extensive search was
organized, and her body wasn't discovered until January 2 in the Sam
Houston National Forest by a couple of huntersin an area that had been
already searched 3 times. She had been strangled with 1 leg of a set of
panty hose. Around her neck and face there was some decomposition from
maggots as well as evidence of rodent scavenging. She was clothed but her
shirt had been bunched up around her neck, and though her torso was bare,
it showed no evidence of having been scavenged by the wild pigs, crows,
raccoons, or vultures that live in the forest. Her corpse was not bloated,
and police reported no foul smell. In fact, the hunters had initially
thought she was a mannequin. The body appeared to have been in its final
resting place for only a short period of time.

Swearingen, an ex-con who was working as an electrician, had met Trotter
on December 6 and asked her out on a date. She stood him up the next day,
but on December 8 they rendezvoused on campus. That same day she
disappeared, making Swearingen one of the last people to see her alive.

3 days later, he was arrested for outstanding traffic warrants and put in
jail, where he remained after becoming a suspect in Trotter's
disappearance. When her body was found, Swearingen had already been in
jail for 3 weeks.

Though no one saw Trotter leave the campus with Swearingen, the state was
able to stitch together a tenuous narrative that had Swearingen kidnapping
her in his truck, taking her to his trailer, raping her, killing her, and
dumping her in the forest. (In order to get the death penalty, prosecutors
had to prove murder in tandem with another felony, such as kidnapping or
rape.) The motive? Prosecutors brought forward testimony from construction
worker pals of Swearingen's who said he had been furious at being stood
up. As for proof about the kidnapping, there were witnesses who saw the
two together on campus earlier that day, and there were fibers found on
her jacket that "appeared to be" from Swearingens jacket and other fibers
found on her and her clothes that were "similar to" carpet fibers from his
trailer and truck seat.

Swearingen made 2 cell phone calls that afternoon, and because the calls
were routed through a tower near the crime scene, the prosecution said
that proved he had dumped the body there. As for proof of rape, Harris
County chief medical examiner Joye Carter, who did the autopsy, found no
evidence of violent penetration of Trotter, but she did say there was some
discoloration of the vaginal wall. Though this could have come from normal
intercourse, the prosecution used this as evidence that Swearingen had
raped Trotter. When the Court of Criminal Appeals later took up
Swearingen's appeal, it admitted, even as it affirmed his guilt, "The
forensic evidence is inconclusive."

The most damning piece of evidence against Swearingen was another leg of
panty hose found in the trash outside his trailer 4 days after Trotter's
body was located. Even this was not as clear-cut as it should have been.
When the fabric was found, the trailer had already been fruitlessly
searched twice by half a dozen deputies who turned up nothing. It was
matched to the piece around Trotter's neck by a DPS criminologist.
Swearingen's appellate attorney James Rytting wrote in an appeal that the
pantyhose matching "was not based on scientific or forensic principles.
The pantyhose material . . . can be easily stretched or distorted, so
'matching' may easily be the artifact of the examiners manipulations,
whether intentional or unconscious."

The case wasn't entirely circumstantial. The state also called medical
examiner Carter, who testified that she thought Trotter had most likely
been killed on or about the day she disappeared. She based her opinion on
the body's external conditionthe decomposition and maggot activity around
the head and neck. She wasn't askedand didn't tellabout the condition of
the body's internal organs, which were remarkably intact for a person who
had supposedly been dead for so long.

The defense had 2 important things on its side that should have given the
jury pause. Most critically, blood was found underneath one of Trotter's
fingernails and DNA analysis proved it was not Swearingen's. Also, a pubic
hair found in a vaginal swab was found not to be his. But the defense
pathologist didn't question why Trotter's body was in such good shape, nor
did the expert question the prosecution's theory that she had died on or
around December 8. The jury found Swearingen guilty and gave him the death
penalty in June 2000.

The Science of Death

It wasn't until Swearingen was given his first execution date, January 24,
2007, that he began to get medical science on his side. First came the bug
guys, or forensic entomologists, who use insect larvae found in corpses to
figure out time of death. On January 22, appellate attorney Rytting filed
a habeas corpus appeal anchored by the testimony of an entomologist who
said that, based on temperature reports that said the average temperature
that month was 50 degrees with highs in the mid-70s, the earliest those
maggots could have begun colonizing her body was December 18a week after
Swearingen was put in jail. (Swearingen himself, while studying the
temperature data, had found a crucial error in the numbers that showed it
had actually been warmer than the climatologists had initially reported.)

The CCA stayed the execution and called for a hearing to look into the
matter in the trial court. At the hearing, another entomologist, James
Arends, testified; he noted that there was no evidence of maggot
colonization in the anal and vaginal regions, as would be expected in a
body left in the wild for so long. He also pointed out that the body
hadn't been picked on by the thousands of wild pigs, crows, and vultures
that live and feed in the forest. (Or, as he wrote in an affidavit, "It is
very common to find near to complete skeletonization, and bones scattered
over a wide area by scavengers, in cases where remains of missing persons
are not recovered for significant periods of time after being left in
locations such as the location in this instant case.") Arends's
conclusion? Trotter's body had been there no longer than a week.

Pathologist Luis Sanchez, the current Harris County medical examiner, also
testified at the hearing, saying that a body in the forest 25 days would
show more decomposition, color change, bloating, and skin slippage. He
also explained that the autopsy showed Trotter's internal organs had been
in good enough condition to be pulled out and sectioned; however, organs
begin to break down upon death. The pancreas, for example, usually
liquefies completely within 24 to 48 hours. Sanchez's conclusion: The body
hadn't been in the forest for more than 14 days.

Unbelievably, the CCA denied that appeal without even commenting on the
forensic science. Rytting filed another habeas appeal last year that
included affidavits from Larkin and Lloyd White, the Deputy Tarrant County
Medical Examiner. Larkin said, "December 23 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."

White thought the conditions of the organs made it more likely Trotter
died close to January 2, 1999. He viewed photos of her heart; they
revealed that "the muscle is still red and relatively fresh looking . . .
the appearance of the heart is what one would expect to find upon an
autopsy of a recently deceased individual." White also wrote,
"Unfortunately, the conviction in this case rests upon misleading forensic
pathological testimony."

He was referring to the words of Joye Carter. She had moved on from Harris
County, but Rytting tracked her down in Marion City, Indiana, where she
was the chief forensic pathologist. He got her to reread the Trotter
autopsy report and other materialssuch as the temperature reports. Carter
realized she had made a mistake, and now she submitted her own affidavit,
in which she admitted it. By her calculations, the body had been in the
forest for only 14 days, not 25. Carter based her new opinion on the
condition of Trotter's bare torso as well as her internal organs. Plus,
she noted how Trotter had weighed 109 pounds at a doctors examination on
November 23; when found, she weighed 105. As Larkin wrote in his
affidavit, "even if a corpse is not scavenged, a body will lose up to 90 %
of its weight in less than 25 days."

Once again, the upshot of all of this is simple: Trotter was murdered
while Swearingen was in prison. Rytting added other claims in the 2008
appealthat detectives knew Trotter was getting threatening phone calls
from another man and that there was evidence that Trotter and Swearingen
had actually been dating. The CCA again asked the trial court to hold a
hearing to look into these allegationsbut only the latter ones, not the
ones dealing with pathology or entomology. Again, the highest court in the
state said nothing about the science or the doctors and their claims that
Trotter was killed long after Swearingen had been locked up. "How can that
not merit a new trial?" asks Rytting. "In order to merit a new trial, we
have to show that, given the new evidence, no rational juror would have
convicted Swearingen. There is solid forensic evidence to show this and
there is nothing to counteract it on the other side except for Carter's
testimony, which she has since recanted. The truth is, if they tried
Swearingen today he would walk. You put the testimony of those physicians
and scientists in front of a jury, they're going to acquit."


The CCA denied those final 2 claims in December, and Swearingen was given
his new execution date: January 27. At this point, he doesn't have a lot
of options. Rytting will petition the US Court of Appeals for the Fifth
Circuit to try and get them to allow another federal appeal, though the
federal standard for bringing in new evidence is tough. On January 7,
Rytting, with help from the New Yorkbased Innocence Project, filed a
request for a stay of executionas well as more DNA testing. The attorneys
want to use modern-day short tandem repeat (STR) testing, unavailable in
2000, to compare the DNA profile taken from the blood found under
Trotter's fingernail and put it into the federal CODIS database of DNA
profiles of 6.3 million convicted offenders. They also want to use the new
technology of "touch DNA"it can detect DNA left behind in skin cells (it
recently exonerated the parents of JonBenet Ramsey)on the panty hose
around Trotter's neck and on her clothes, under the theory that the killer
left cellular evidence behind as he dragged Trotter's body through the

It would be nice if, at this late date, the CCA showed some respect for
science and granted the testing. It would also be nice if the high court
took a step back and showed some respect for all the medical science it
has ignored in Swearingen's case. His conviction was based, as Dr. White
said, on "misleading forensic pathological evidence"as well as flimsy
circumstantial evidence. Of course, cases are tried on circumstantial
evidence all the time (often, thats all law enforcement can find), but
when circumstantial evidence is as tenuous as this was, and when it butts
up against scientific evidencewhen one says one thing and the other says
anotheryou would like to think that the highest court in the state would
at least give the science a look.

The bottom line: Someone killed Melissa Trotter and dumped her body in the
Sam Houston National Forest. But that someone was not Larry Swearingen.

(source: The Axis of Logic)