Written By: Billy Sinclair
On December 8, 1998 Melissa Trotter went missing in Montgomery County, Texas. Larry Ray Swearingen—an electrician from Willis, Texas—was arrested on December 11, 1998 on outstanding charges unrelated to Trotter’s disappearance Trotter’s body was found by hunters on January 2, 1999 in the Sam Houston National Forest. She had been strangled with a piece of pantyhose Swearingen was subsequently charged and indicted for the murder of Melissa Trotter. He was tried, convicted, and sentenced to death in July 2000 for the Trotter murder.
Since his conviction, Swearingen’s attorneys have waged a relentless legal battle to establish the condemned inmate’s innocence. These efforts got a significant boost in 2007 when former Harris County Chief Medical Examiner Dr. Joyce Carter, who performed the autopsy on Trotter and testified at Swearingen’s trial that Trotter had died 25 days before her body was found, changed her opinion and said Trotter had been killed within 14 days of her body being found. Accepting Carter’s second opinion as valid, which the State did not and countered with its own experts to refute Carter’s new findings, Swearingen could not have killed Trotter because he was already in jail when she was killed under Dr. Carter’s revised death timeline.
The Carter findings spurred Swearingen’s attorneys to push harder for additional guilt exoneration. They filed motions under Texas’ post-conviction DNA testing statute requesting more sophisticated testing of physical evidence—Trotter’s ripped jeans, the ligature, and other clothing items—for “touch” or “contact” DNA evidence. They also requested additional testing of material from fingernail scrapings of Trotter’s left and right hands. Finally, they requested DNA testing of a foreign pubic hair recovered during the “rape kit” examination of Trotter.
The Texas Court of Criminal Appeals on February 10, 2010 upheld the trial court’s refusal to order the additional DNA testing requested by Swearingen’s attorneys. With respect to the request for DNA testing of the any possible “touch” evidence on Trotter’s clothing and the ligature, the court of criminal appeals said this request should have been made earlier because the technology for such testing, which was not available at the time of Swearingen’s arrest, has been available for years and the request should have been made sooner. Further, the court said that even if the more advanced testing was conducted, it would not create a 51% chance that Swearingen would not have been convicted (as required by the post-conviction DNA statute) in light of all the other “overwhelming” evidence of guilt in the case.
As for the pubic hair testing request, the appeals court pointed out that this evidence had been lost somewhere between collection and transmission to an FBI crime lab. Since Swearingen’s attorney could not show the State had acted in “bad faith” concerning the loss of the evidence claims as required by U.S. Supreme Court case law, the attorneys had presented nothing for the court to review.
Finally, with respect to the dried blood flakes material found under the fingernails of Trotter’s left hand, the appeals court pointed out that testing by the Texas Department of Public Safety had put together a DNA profile and concluded the material did not belong to either Trotter or Swearingen. The DPS findings were loaded into a national database for DNA evidence collection. Swearingen’s attorneys requested that the State be forced to run a comparative analysis of the DPS findings with all the other DNA profiles in the database. The court rejected this request, saying the Texas post-conviction DNA statute does not require such a comparative analysis.
Underlying the court of criminal appeals refusal to order additional DNA testing was the other “overwhelming” evidence of guilt against Swearingen as the court called it. The appeals court cited a comprehensive list of the incriminating evidence against Swearingen (much of which has also been cited by a federal district court in an earlier of ruling):
- Swearingen was the last person Trotter was seen with alive (she was seen with him by three witnesses);
- Two of Swearingen’s friends overheard Swearingen in a cell phone conversation on December 7 arranging a dinner meeting with Trotter on December 8;
- Ms. Trotter had been in Swearingen’s truck where her forcibly removed hair follicles were found;
- Trotter was in Swearingen’s house on the day she disappeared, the house was later found in disarray, and Swearingen falsely reported a burglary of the residence;
- Documents belonging to Trotter were found near the residence of Swearingen’s parents;
- Trotter’s cigarettes were found in Swearingen’s house;
- Trotter was wearing the same clothes at the time of death as she wore on the day of her disappearance and a note given to her by a friend on December 8 was found in the back pocket of her jeans;
- Swearingen’s cell phone records placed him near the location where Trotter’s body was found;
- A half pair of pantyhose belonging to Swearingen’s former wife was found in Swearingen’s house while the other half was found wrapped around Trotter’s neck;
- Contents from the last meal Trotter ate on the day of her disappearance were found in her stomach—a meal eaten with Swearingen;
- Swearingen lied about his whereabouts on the day of Trotter’s disappearance, fled from the police, tried to fabricate an alibi, and made false police reports;
- Swearingen asked others to lie on his behalf and told other people the police would be after him.
- Swearingen crafted a letter written in Spanish in jail designed to deflect attention from himself—a letter which contained detailed specifics about Trotter’s murder which accurately corroborated the physical and medical evidence in the case.
- Swearingen reportedly told other inmates, “fuck, yeah, I did it” and his only objective was to escape the death penalty; and
- Trotter’s body was found in an area of the Sam Houston National Forest where Swearingen had frequented
I don’t know beyond a reasonable doubt whether or not Larry Ray Swearingen is guilty, but I do know there is a compelling body of evidence which is highly incriminating. Swearingen’s supporters rely heavily on the forensic evidence that Trotter’s body was in the woods no more than 14 days before it was discovered, and if so, Swearingen could not have killed her. The problem with forensic evidence today is that it is in scientific disarray. A significant number of DNA exonerations are attributable to what’s called “false forensics”—experts hired by the State to present forensic findings, no matter how unreliable or manufactured, that support the prosecution’s case.
In a February 2009 report titled “Badly Fragmented Forensic Science System Needs Overhaul: Evidence to Support Reliability of Many Techniques” by the National Academies underscored this point by saying that most forensic evidence testing procedures do not have meaningful scientific validation. So I don’t know if the testing procedures used in the determination that Trotter’s body was in the woods only 14 days instead of 25 days as the State contends have a reliable scientific validation. What I do know is that the circumstantial evidence in the Swearingen case, considered in its totality, makes a compelling case for guilt.
Swearingen v. State, 2010 Tex.Crim.App. LEXIS 9 (Tex. Crim. App. Feb. 10, 2010)