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.”