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:
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:
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:
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
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.
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