4 pathologists back death row inmate's innocence claim—-Swearingen,
slated to die Tuesday in college student's 1998 murder, was in jail at
time, 4 now say.
4 forensic pathologists agree that Larry Swearingen, set to be executed
Tuesday, could not have committed the 1998 murder that sent him to death
The 4 include the medical examiner whose testimony helped secure
Swearingen's guilty verdict. That medical examiner now says college
student Melissa Trotter's curiously preserved body could not have lain in
the East Texas woods for more than 14 days and probably was there for a
much shorter time.
The results mean Swearingen was in jail when the 19-year-old's body was
left behind, the pathologists say.
"It's just scientifically impossible for him to have killed the girl and
thrown her into the woods," said James Rytting, Swearingen's appellate
lawyer. "It's guilt by imagination."
Prosecutors disagree, saying compelling evidence ties Swearingen to the
crime, including a match between the panty hose leg found around Trotter's
neck and the stocking remnant found in a trash dump next to Swearingen's
mobile home. Also, hair and fibers show Trotter had been in Swearingen's
truck and mobile home in Willis, about 40 miles north of Houston.
But in court briefs seeking to keep Swearingen's execution on track,
prosecutors do not attack the conclusions by the 4 pathologists beyond
labeling them "opinion evidence based on experts' second-hand review of
others' work and photographs."
1 of those pathologists, however, did Trotter's autopsy.
In her original report, Dr. Joye Carter determined that Trotter's
strangled body had lain in the Sam Houston National Forest outside Conroe
for 25 days coinciding exactly with the date of Trotter's disappearance
from Montgomery County Community College, Dec. 8, 1998. Witnesses said
Trotter left the campus library that day with Swearingen, whom she met 2
The timing was important because Swearingen had been in jail since Dec. 11
on outstanding traffic warrants.
But faced with conclusions from other pathologists that her 25-day time of
death defied scientific analysis and common sense, Carter recanted her
findings in a 2007 affidavit. "Ms. Trotter's body was left in the woods
within 2 weeks of the date of discovery" on Jan. 2, 1999, she wrote.
Reassessment of Trotter's autopsy began late in Swearingen's appeals
process when a defense pathologist noticed that Carter found an intact
spleen and pancreas.
Both organs liquefy quickly after death, prompting a more thorough review:
5 recently discovered slides of heart, lung and nerve tissue from
Trotter's autopsy revealed intact nuclei and red blood cells, said Dr.
Lloyd White, Tarrant County deputy medical examiner.
Red blood cells break down within hours, and nuclei in heart cells break
down within days, White said.
Also, levels of bacteria indicated the body had not been frozen or
preserved, he said.
White's conclusion: Trotter had been dead for 2 or 3 days before her
Trotter's mucosa fragile tissue in the stomach and intestines that
quickly disintegrates after death was intact, noted Dr. Glenn Larkin, a
North Carolina pathologist.
The condition of the mucosa indicates with "medical certainty" that
Trotter had been in the forest for less than 10 days and more likely 3 or
4 days, Larkin concluded.
Trotter weighed 109 pounds at a doctor's visit shortly before she
disappeared, but her body weighed 105 pounds, a 4 % decline. Larkin
concluded that a body will lose up to 90 percent of its weight in less
than 25 days under temperatures endured by Trotter's body: average highs
of 62 and lows of around 40.
Unlike a body left outside for 25 days, Trotter's showed no sign of
bloating or perforated intestines. Her clothes were unsoiled and slipped
easily from her body during the autopsy. There was limited scavenging by
animals in a forest inhabited by feral pigs, vultures and raccoons.
"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," Larkin said in an affidavit.
Thus far, only the Texas Court of Criminal Appeals has seen the opinions
from the four forensic pathologists.
The state's highest criminal court, however, did not rule or comment on
the information. Instead, the court dismissed Swearingen's petition for
violating state laws that limit death row inmates to one petition for a
writ of habeas corpus unless lawyers uncover information that was not
available when the first appeal was filed.
The appeals court has yet to rule on a stay of execution motion that
repeats the forensic conclusions.
The opinions from the forensic pathologists also were included in a plea
to Gov. Rick Perry to issue a 30-day execution reprieve.
Swearingen also has two federal petitions pending based on the forensic
information. He is asking the 5th U.S. Circuit Court of Appeals for
permission to bring the findings to a U.S. District Court for review, and
he is asking the U.S. Supreme Court to review the case.
Texas Attorney General Greg Abbott has opposed both requests, saying
Swearingen has not met federal requirements to pursue an innocence claim
and is, in fact, not innocent.
Swearingen has presented no new DNA or indisputable evidence undermining
his conviction, only expert opinion that could be challenged under
cross-examination if presented at trial, Abbott said in briefs.
In addition, Abbott said, the prosecution's case against Swearingen was
convincing: He was the last person seen with Trotter, whose autopsied
stomach contained potatoes, which she ate for lunch the day she
disappeared. The panty hose link Swearingen to the crime, and Swearingen
wrote a letter from jail in Spanish to divert police attention to another
man that presented a plausible narrative for the killing.
Swearingen's lawyer, joined by the Innocence Project in New York, says he
believes he has met the legal definition for an innocence claim: that it
is unlikely a reasonable juror would convict him in light of the new
"Someone else had that girl's body, dead or alive, and threw her in the
forest. And that someone wasn't Larry," Rytting said.
Swearingen would be the 4th Texan executed this year.
(source: Austin American-Statesman)
Monthly meeting of El Pasoans Against the Death Penalty
Time: 6:30-8:00 p.m.
MONTHLY MEETING OF EL PASOANS AGAINST THE DEATH PENALTY
Tuesday, January 27, 6:30-8:00 p.m., at Centro Mujeres de la Esperanza,
1000 Wyoming Avenue (corner of Wyoming and Ange). Information:
Kristin Houl, the new Executive Director of Texas Coalition to Abolish the
Death Penalty, is planning an El Paso visit in March. She hopes to meet
with our group at its monthly meeting (March 17) and also to make some
sort of public appearance. We need to be making plans for her visit.
Please attend the January 27 meeting if you can. (The meeting has been
postponed to that date, because January 20 is presidential inauguration
(source: Newspaper Tree)
Man Wrongfully Executed—-Today we also make broader reference yet again
to that vexed matter, capital punishment.
As we proceed, note well that certain new information we have concerns a
celebrated case; that of Jose Ernesto Medellin Rojas.
This man was killed by state authorities in Texas.
Now we also know that in its unanimous ruling this Monday past, the ICJ,
also known as the World Court, found "that the United States of America
has breached the obligation incumbent upon it under the Order indicating
provisional measures of 16 July 2008, in the case of Mr. Jose Ernesto
Now we note that, following the 2004 order by the World Court that new
hearings be held for the 51 Mexicans on death row who claimed their
consular rights had been violated, the Bush administration ordered Texas
and the other states with such prisoners to comply with the order.
We can also indicate that while serving the appearance of abiding by the
ICJ ruling, the practical effect of Bush's order was to delay any ruling
by the US Supreme Court on the issue and stall precedent being set on
In March 2005, the Bush administration then withdrew from the optional
protocol to the VCCR. This meant that while remaining a signer to the
Convention, the US would refuse to submit to international law to enforce
Clearly, this stratagem signaled the Bush's administration intent to flout
the 2004 order, which found its ultimate expression in the execution of
Jose Medellin without determining whether the denial of his consular
rights had impaired his defense.
This was wrong as wrong can be.
Today our hope is that Barack Obama's regime will be one that respects and
honors international treaties and relevant laws.
Evidently, our commentary this time around has to do with that Mexican
man who was executed by state authorities in Texas; this despite the fact
that an appeal had been lodged with the International Court of Justice in
In this regard, it is to be noted that the Court in question has ruled
that the United States breached the court's order and violated an
international treaty when a Mexican national was executed last year in
Evidently, both federal and state governments in the United States thought
it expedient to flout and disregard relevant international laws.
Complicit in this we find the United States Supreme Court.
As egregious is the fact that what is here illuminated happens to be
official American flouting of an international convention governing
foreign consular relations and the death penalty.
As we now know, Jos Medelln, who has been on death row for 14 years, was
barely 18 years old at the time of the crime (two co-defendants who were
17 subsequently had their death sentences commuted after the US Supreme
Court outlawed the death penalty for under-18-year-olds in 2005).
Crucially, we note that he was never advised by Texas authorities of his
right as a detained foreign national to seek consular assistance, as
required under article 36 of the Vienna Convention on Consular Relations
We are also convinced that because of this treaty violation, Jos Medelln
was deprived of the extensive assistance that Mexico provides for the
defense of its citizens facing capital charges in the USA.
Evidently, we reference and comment on this one truly sorrowful case of
but one Mexican man; this one wrongfully executed by the state of Texas.
There is also an argument to the effect that the United States Supreme
Court by way of crucial omission may have also been complicit in this
act of death-dealing.
Indeed, the Mexican Consulate did not learn about the case until nearly 4
years after Jos Medellns arrest, by which time his trial and the initial
appeal affirming his conviction and death sentence had already been
And for sure, it is also quite interesting to note that, "Medellin was
executed less than three week's after the ICJ ordered the US to stay the
imminent executions of five Mexicans on death row in Texas.
In that ruling, the World Court ordered that the US should "take all
measures necessary to ensure [they] are not executed pending judgment …
unless and until these five Mexican nationals receive review and
reconsideration [of their sentences].
As we have been advised, the issue in these cases was US violation of
Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR),
which mandates that local authorities inform all detained foreigners
"without delay" of their right to have their consulate notified of their
detention. Washington ratified the VCCR in 1969, along with an optional
protocol giving the ICJ jurisdiction over the convention.
Crucially, note that the United States did in the matter involving Jos
Medelln find a way of killing him; albeit without legal sanction.
This they did by finding a way of wiggling out of what seemed its
iron-clad responsibility to uphold and obey relevant international law.
(source: The Bahama Journal)
Lethal Injection in Texas: A Three-fer Week Scheduled
On Tuesday, Wednesday, and Thursday of next week Texas plans 3 lethal
injections in a row. And in each case, there are troubling questions.
On Tuesday, Larry Swearingen is scheduled to be executed for a crime that
probably took place while he was in jail. Scott Henson reviews the facts
at Grits for Breakfast.
* * * On Wednesday, Virgil Martinez is scheduled to be killed for shooting
to death an ex-girlfriend, her friend, and two children. An awful crime.
But Martinez was arrested at a mental hospital where he had admitted
himself for hearing voices ordering him to kill, and jurors were never
told that he suffered from temporal lobe epilepsy (TLE). The Brazosport
Facts published a good overview of the Martinez case in 2006.
According to federal court records accessed by the Texas Civil Rights
Review, a magistrate judge concluded in 2005, and a federal district judge
agreed in 2006, that the trial attorney for Martinez could have made
better use of medical evidence about TLE and "post-seizure aggression."
The federal documents further indicate that Martinez did exhibit "bizarre
and at times violent behavior" during his time at a mental hospital.
But in 2007 a federal appeals panel argued that the trial attorney for
Martinez was justified in not telling jurors that the defendant had a
condition that could cause "savage and uncontrolled" aggressiveness. Such
information, along with other facts about his history of aggression and
jealousy, might persuade the jury that a death penalty would be most
The appeals panel agreed with the magistrate and district judge that the
lawyer did not understand the difference between violence during a seizure
and "post-seizure" aggression. But, giving strict attention to the
question that was put to them, the appeals panel refused to label this
failure as a mark of attorney incompetence.
So it may still be the case that "post-seizure" aggression is a medical
condition that affects Martinez, and which affected him at the time of the
four killings. Setting aside the question about whether his lawyer was
competent in selecting a defense strategy under the circumstances of the
trial, the appeals record has produced a fact that is significant.
Perhaps we can still expect a stay in this case.
* * *
On Thursday, Ricardo Ortiz is scheduled to be killed by lethal injection
because he was convicted of lethally injecting a cellmate with a triple
dose of heroin.
The official account posted by Texas prison authorities says that Ortiz
and two other cellmates cooked up three doses of heroin in an El Paso cell
and that Ortiz injected all three doses into the victim who died of an
The Texas Attorney General adds that Ortiz committed the crime in order to
prevent his cellmate "from testifying against him" about some bank
So here is what Texas officials tell us: they held a prisoner in an El
Paso cell with someone who could testify against him. They allowed 3 doses
of heroin into the cell, didn't smell it while it was cooking, and didn't
notice a thing until the next cell count revealed a dead prisoner.
Are Texas authorities so into lethal injections that they'd set up the
ideal conditions for one and then use their own malpractice as a
foundation to practice another?
(source: Axis of Logic)
Court interpreters in short supply in multilingual Texas
The Honduran woman had been beaten repeatedly. And when it was time to
face her former boyfriend who she said had tormented her, she wanted the
jury in the Dallas courtroom to understand key details. Her voice shook.
She spoke only Spanish.
The young woman used an interpreter, Lyda Baro. In English, Baro said,
"And from a beating, he gave me a miscarriage."
The accused was found guilty of a criminal misdemeanor offense.
Court interpreters like Baro give voice to women challenging domestic
violence, to children who've been abused, to witnesses of murders, and to
many other parts of often-complex legal processes. And they have never
been in more demand a reflection of the demographic sweep of immigration
in North Texas and across the country.
"We live in a state with a death penalty," Baro said as she sat outside a
courtroom. "So this is crucial stuff."
It is also the exacting stuff of stories that will affirm or contradict
guilt or innocence or witness credibility. And yet a victim with a limited
vocabulary can't be helped by an interpreter with a college degree, a
poetic flair and a gift for narrative arc.
Interpreters must remain neutral and not add or subtract from what's said,
according to administrative rules of the state licensing agency.
There are false cognates, and there are true cognates. (Crimen isn't an
exact translation of crime, for example.) There are literal meanings
versus idiomatic expressions of a certain region. ("Keep your nose clean"
isn't so easy to translate.)
Linguistic nimbleness is only half the skill needed, experts say.
Interpreters must also know a good deal about the law and have excellent
So the licensing process is tough.
There are only 32 licensed interpreters in Dallas County, and about 500 in
the state. About 40 percent of Dallas County, or 830,000 people, and about
a third of the Texas population, or 7.2 million, speaks a language other
than English in the home, according to the U.S. Census Bureau.
Spanish dominates among the foreign languages, followed by Vietnamese,
Chinese and Korean.
"To have this low number of interpreters is ridiculous," said Esther Diaz,
an Austin interpreter active in the American Translators Association. "One
of the reasons we have so few is that the test is so rigorous, you really
have to know Spanish inside and out."
Marilyn Retta, a licensed court interpreter in Dallas, said: "I turn down
about as many jobs as I take because there just aren't enough
interpreters. That is a good place to be if you want job security."
Not everyone who believes he's bilingual makes it as an interpreter for
"A good interpreter has very high language skills, phenomenal skills,"
said Gerda Stendell, director of the Access Language Center. "They have to
be fully bilingual. But being bilingual is only the raw material. A
professional interpreter needs a vast vocabulary, ranging from street
language to master's degree quality."
Training for focus
Precision was at play at a recent training session for court interpreters
in McKinney. Elegible in Mexico commonly means a person who legally can be
elected. It doesn't mean eligible.
"It is an Anglocism; but Anglocisms are becoming more and more common,"
Holly Mikkelson said as she led the training for the Texas Association of
Judiciary Interpreters and Translators.
Mikkelson warns about the word crimen. It doesn't mean just any crime but
is instead reserved for unusually violent crimes. In English, the word
"delinquent" refers to a petty offense by a minor. But in Spanish,
delinquencia can mean any crime by a person of any age.
While repeating word for word what's being heard, she has a student write
down a mathematical sequence such as skip-counting by 3s, said Mikkelson,
who also teaches at the Monterey Institute of International Studies, a
language school in California.
The interpreter's role is huge, said District Judge Lena Levario. "A wrong
interpretation can mean the difference between freedom and a prison
sentence," she said.
She recalled a case from years prior when, as a young public defender, she
represented a man who received a bad translation of what the perpetrator
allegedly wore. Her objection meant freedom for her client.
Luis Garca, president of the state interpreters group, said he sometimes
hears complaints that interpreters cost taxpayers too much money. But
court interpreters aren't just for defendants, Garca said.
"They are for victims, too," he said. "What if the person who needs an
interpreter was a witness to the murder of your mother or another loved
(source: Dallas Morning News)