Michael Hall: Memo to Kay

‎Texas Monthly's Michael Hall gives advice to Kay Bailey Hutchison on how to criticize Perry for his cover up of Todd Willingham investigation.

Hey Senator Hutchison, would your campaign have any interest in painting your opponent, Governor Rick Perry, as a corrupt, cold-hearted political hack who will do anything to cover his ass when he looks like he did something really bad? I figured you might, so I drafted this memorandum to help you express your outrage at Perry’s latest actions. You know, how he fired three members of the Texas Forensic Science Commission on the eve of a meeting at which the commission would have heard an expert say, in so many words, that Texas, under the governor’s watch, had executed an innocent man. Even someone who supports the death penalty, as you do, can and should be up in arms over this. Here’s how.

First, just to recap: Cameron Todd Willingham was accused of setting a fire in Corsicana in 1991 that killed his three children. He was convicted on the testimony of two arson experts who said they found evidence the fire had been intentionally set. Willingham protested his innocence for years and finally found an ally in January 2004, when Gerald Hurst, an Austin fire investigator, analyzed the original arson report. Hurst was alarmed at the lack of hard science and scientific reasoning; his conclusion was that there had been no arson. The fire had been an accident. Hurst wrote up a report and faxed it to the Board of Pardons and Paroles, which unanimously turned Willingham down. Governor Perry did too, denying a stay of execution. On February 17, 2004, Willingham was executed.

Later that year the Chicago Tribune asked three other fire experts—John Lentini, John DeHaan, and Kendall Ryland—to analyze the evidence. They agreed with Hurst that there had been no arson. In 2006 the Innocence Project hired Lentini and three additional experts—Douglas Carpenter, Daniel Churchward, and David Smith—to look at the case. They concluded that “the evidence used to convict [Willingham] was invalid.” Willingham’s conviction and execution were, the report concluded, “a serious miscarriage of justice.”

The Texas Forensic Science Commission was formed in 2005 to look into bad or negligent forensic science; one of the first cases it vetted was Willingham’s. The FSC hired an additional expert, Craig Beyler, who concluded just this past August that the investigation of the Willingham fire “did not comport with” either modern standards or even those from 1992: “The investigators had poor understandings of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators. Their methodologies did not comport with the scientific method or the process of elimination. A finding of arson could not be sustained.” In other words, the fire was an accident. Therefore, Willingham didn’t set it. Therefore, Willingham was innocent of setting a fire that killed his three children.

Okay, that catches us up to the present. Last month, after the New Yorker published a long story on Willingham’s case that quoted Beyler, Hurst, and Lentini, Perry was asked about the case, and he said there was plenty of other evidence that Willingham had killed his kids. “I’m familiar with the latter-day supposed experts,” he said, using air quotes to mock their expertise. One thing you might do here, Kay, is go over the qualifications of the “experts” that Perry mocked. Just a thought, but it could be very effective. Consider Beyler’s C.V.

He got his Ph.D. in Engineering at Harvard, his M.S. in Mechanical Engineering at Cornell, his M.Sc. in Fire Safety Engineering from the University of Edinburgh, and his B.S. in Fire Protection Engineering from the University of Maryland. Since 1990 he has been the technical director at Hughes Associates, a world-renowned Baltimore engineering company that specializes in fires—how they get started, how they spread, how they react to different materials, how to fight them, how to protect against them. He’s the chair of the International Association for Fire Safety Science. He’s a member of the Society of Fire Protection Engineers Technical Steering Committee and the National Fire Protection Association’s Toxicity Technical Advisory Committee. He’s taught graduate courses in Combustion, Fire Dynamics, and Fire Chemistry. He’s won awards from the Institution of Fire Engineers, and the Society of Fire Protection Engineers. I would say that’s pretty impressive.

What about the other seven “latter-day supposed experts”? Glad you asked. Here’s where you could really drive the point home. Hurst got his Ph.D. in chemistry from Cambridge and has been investigating fires since 1994; Carpenter has been a fire-protection engineer and investigator since 1996; Churchward is a fire investigator who has worked as a deputy, firefighter, and insurance-company investigator since 1972; Lentini has been a certified fire investigator and chemist since 1978; Smith, a former detective, has been a certified fire investigator since 1971; DeHaan, Ph.D., has been an arson criminologist since 1987 and an independent forensic consultant since 1998; and Ryland is a Louisiana fire chief and former college professor.

So that’s your first line of attack, Senator, and I could see it being a real doozy if you play it right. But yesterday it got even better. You don’t get handed an opportunity like this every day: Two days before the FSC was to hear Beyler himself testify about his report—a report the commission paid for—Perry fired three of the nine members, including its chair, Sam Bassett, who had been on it since it began. (He also canned Alan Levy, an assistant district attorney in Tarrant County, and Aliece Watts, who worked in a forensic lab in Euless.) Their terms had expired on September 1, but Perry could have given them their pink slips any time over the previous month.

The stinkiest part of it all? Perry replaced Bassett with John Bradley, the super-prosecutor from Williamson County, whom Perry himself appointed to his post back in 2001 (he’s been elected several times since). Bradley is known as one of the state’s toughest prosecutors—in August his office charged a man who had accidentally killed his toddler by leaving him in a parked car; the aggrieved father could get a sentence of twenty years. And Bradley’s first act as head of the FSC? Why, it was to cancel Friday’s meeting, saying he needed to catch up on the case.

Let’s review: The governor appointed a previous political appointee of his to head a commission that was looking into whether the governor himself had overseen the execution of an innocent man, and the appointee canceled a meeting where it was to hear testimony from an expert who would have said that, yes, the executed man had committed no crime. Again, you don’t have to be against the death penalty to think that something is terribly wrong here. Unless you’re Rick Perry. Which you’re not. Right?

Texas Monthly: The Science of Murder

Someone killed Melissa Trotter and dumped her body in the Sam Houston National Forest. But according to six forensic experts, that someone was not Larry Swearingen. Michael Hall of Texas Monthly reports:

Innocent men in prison often have two 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 eight-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 innocence—filing 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. Six different physicians and scientists—forensic pathologists and entomologists—say 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 two and a half 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 nineteen-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 hunters—in an area that had been already searched three times. She had been strangled with one 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. Three 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 three 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 Swearingen’s jacket and other fibers found on her and her clothes that were “similar to” carpet fibers from his trailer and truck seat.

Swearingen made two 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 four 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 examiner’s 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 condition—the decomposition and maggot activity around the head and neck. She wasn’t asked—and didn’t tell—about 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 two 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-70’s, the earliest those maggots could have begun colonizing her body was December 18—a 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, twelve 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 materials—such 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 doctor’s 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 percent 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 appeal—that 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 allegations—but 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.”

Reckoning

The CCA denied those final two 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 York–based Innocence Project, filed a request for a stay of execution—as 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 forest.

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, that’s all law enforcement can find), but when circumstantial evidence is as tenuous as this was, and when it butts up against scientific evidence—when one says one thing and the other says another—you 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.