New Podcast: Texas Lawyer James Rytting on Junk Science and the Execution of Larry Swearingen

In the lat­est episode of Discussions with DPIC, Texas cap­i­tal defense lawyer James Rytting (pic­tured) dis­cuss­es the case of his client, Larry Swearingen, and the junk sci­ence that led to the exe­cu­tion of a man legit­i­mate sci­ence strong­ly sug­gests was inno­cent. Rytting describes the false foren­sic analy­sis pre­sent­ed under the guise of sci­ence in Swearingen’s case, the appel­late process that makes it ​“almost impos­si­ble” to obtain review of new evi­dence, and the per­sis­tent prob­lem of wrongful convictions. 

Larry Swearingen was exe­cut­ed on August 21, 2019 after mul­ti­ple courts declined to review evi­dence sup­port­ing his inno­cence claim. In the inter­view, Rytting explains the prob­lems with the prosecution’s ​“smok­ing gun,” a piece of panty­hose used to stran­gle the vic­tim, Melissa Trotter. The pros­e­cu­tion told the jury that a match­ing piece of panty­hose had been found in Swearingen’s home. In real­i­ty, that sup­pos­ed­ly match­ing piece of the panty­hose had not been dis­cov­ered in two ini­tial search­es of Swearingen’s house. It was only ​“found” in a third search of the res­i­dence after Trotter’s body was found and police learned of the panty­hose lig­a­ture around her neck. A foren­sic ana­lyst work­ing close­ly with police and famil­iar with the ori­gin of both spec­i­mens com­pared the two pieces. Though she did not ini­tial­ly deter­mine that the pieces matched, she lat­er re-exam­ined the evi­dence, in Rytting’s words, ​“with­out tak­ing any of the basic pre­cau­tions to ensure that you’re not biased.” According to Rytting, ​“She was fol­low­ing pro­to­cols that can­not be used in any­thing that is con­sid­ered a sci­en­tif­ic inquiry.” This, he said, was in itself ​“not unusu­al” and was the ​“cus­tom­ary pro­ce­dure when peo­ple are mak­ing tear-mark com­par­isons” — one of the rea­sons the sci­en­tif­ic valid­i­ty of such foren­sic evi­dence is so unreliable. 

Rytting said there were oth­er sig­nif­i­cant prob­lems with the evi­dence pre­sent­ed against Swearingen at tri­al, includ­ing sci­en­tif­i­cal­ly false tes­ti­mo­ny regard­ing the date of Trotter’s death. Swearingen was arrest­ed three days after Trotter’s dis­ap­pear­ance. Her body was dis­cov­ered in the Sam Houston National Forest three weeks lat­er, while Swearingen was still in jail. The state’s expert tes­ti­fied that Trotter had been killed before Swearingen was arrest­ed. Later, ​“no less than five chief med­ical exam­in­ers with inter­na­tion­al rep­u­ta­tions … came to the con­clu­sion that the body of Melissa Trotter was thrown in the woods no more than ten days or so before the body was found,” a time dur­ing which Swearingen was in jail and could not have com­mit­ted the killing. 

The pros­e­cu­tion also pre­sent­ed expert tes­ti­mo­ny that pur­port­ed to track, through cell tow­er records, Swearingen’s loca­tion at the time the pros­e­cu­tion the­o­rized the mur­der had occurred. Swearingen lat­er showed that the tes­ti­mo­ny that had pur­port­ed­ly pin­point­ed Swearingen’s where­abouts was bad­ly flawed and had report­ed his loca­tion and move­ments to the jury with much greater cer­tain­ty than was actually possible. 

Rytting says that a lack of sci­en­tif­ic train­ing, both of the foren­sic ana­lysts who exam­ine evi­dence and the lawyers and judges who must present and con­sid­er it, con­tributes to the ongo­ing mis­use of junk sci­ence in crim­i­nal tri­als. On foren­sic ana­lysts, he said, ​“They appar­ent­ly do not, or did not at the time, come in with a basic back­ground in sci­en­tif­ic meth­ods – what you need to do to blind your­self to make sure that you’re not biased, that you are not con­firm­ing a fore­gone con­clu­sion that you should not be con­sid­er­ing when you’re doing the test and prepar­ing the mate­ri­als.” He called the train­ing of attor­neys and judges ​“anti­quat­ed” and said, ​“You don’t get any sci­en­tif­ic train­ing while you are in law school, and yet this is a major part of life that you have to have some flu­en­cy with if you’re going to be on the bench mak­ing deci­sions nowa­days. You have to know some­thing about science.” 

The insuf­fi­cient judi­cial review in Swearingen’s case was a result of the 1990’s amend­ments to the fed­er­al habeas cor­pus statute that were includ­ed in the Anti-Terrorism and Effective Death Penalty Act. That act, Rytting said, sets a stan­dard that is ​“almost impos­si­ble to meet” for pris­on­ers who want to present new evi­dence. “[T]he fed­er­al sys­tem,” Rytting said, ​“could take a les­son from Texas,” whose leg­is­la­ture has passed ​“cut­ting-edge” leg­is­la­tion to try to address wrong­ful con­vic­tions and junk science. 

Rytting also not­ed that, while junk sci­ence and wrong­ful con­vic­tions get the most atten­tion in death-penal­ty cas­es, they affect peo­ple through­out the legal sys­tem. ​“All the cas­es in which peo­ple are serv­ing life sen­tences[,] … there are thou­sands and thou­sands of those peo­ple, and their cas­es aren’t reviewed. They are con­vict­ed by junk sci­ence. They are con­vict­ed by false sci­en­tif­ic tes­ti­mo­ny, exag­ger­at­ed sci­en­tif­ic tes­ti­mo­ny. Their cas­es aren’t reviewed, except in the rarest of cir­cum­stances, because only death-sen­tenced clients are allowed an attor­ney, are allowed resources in habeas cor­pus. So, that should be kept in mind, that this isn’t a dis­crete prob­lem hav­ing to do with peo­ple on death row. This is a huge prob­lem hav­ing to do with peo­ple that are wast­ing away in the prison system.”