Texas to Execute Larry Swearingen Based on Forensic ​“Quackery,” Lawyers Say

With serious doubts swirling as to virtually every piece of forensic evidence in his case, Texas plans to execute Larry Swearingen—who has always maintained his innocence in the murder of Melissa Trotter—on August 21, 2019. His attorneys say his conviction is grounded in junk science that has been repudiated by numerous forensic experts, including false testimony regarding pantyhose used to strangle Trotter, blood found under her fingernails, and the time of her death. Even after the Texas Crime Lab disavowed portions of its forensic technician’s testimony in the case, the U.S. Court of Appeals for the Fifth Circuit rejected Swearingen’s request for a stay.

Prosecutors assert that there is a “mountain of evidence” against Swearingen. His defense counters that that evidence is “false and misleading.” “They are going to execute someone that the legitimate forensic science has proven innocent,” Swearingen’s appeals lawyer, James Rytting, told the Texas Tribune. “And the execution is going through on the basis of other forensic science that is borderline quackery — in fact it is quackery.” [UPDATE: The U.S. Supreme denied Swearingen’s petition for habeas corpus and application for stay of execution around 7:00 P.M. Eastern time on August 21 and he was executed shortly thereafter.]

Swearingen has presented evidence undermining the forensic testimony purporting to implicate him in Trotter’s murder and has presented testimony from multiple forensic experts that it was physically impossible for him to have committed the murder.

Trotter was strangled with one leg of a pair of pantyhose. Sandy Musialowski, a technician from the Texas Department of Public Safety Crime Lab falsely testified at Swearingen’s trial that pantyhose found in his home matched those used to kill the victim “to the exclusion of all other pantyhose.” In closing argument to the jury, the prosecution called this evidence “the smoking gun” of Swearingen’s guilt. However, Musialowski’s notes of her initial examination of the evidence—which were never disclosed to Swearingen’s lawyers at the time of trial—paint a different picture, indicating that Musialowski initially had found “no physical match between ligature & pantyhose.” By the time of Swearingen’s trial the following year, she testified that the two were “a unique physical match.”

Brady W. Mills, director of the Texas crime lab, has conceded that Musialowski’s testimony at trial was overstated. He said that “the terms ‘unique’ and ‘to the exclusion of others’ were common language throughout the forensic community, at the time … Today we would report that the two pieces were once joined, but would not include the statement ‘to the exclusion of all others.’” The defense argues that the routine presentation of false testimony by forensic witnesses illustrates that the evidence was junk science. Other experts who have examined the evidence dispute both Musialowski’s terminology and her basic conclusion. In an affidavit submitted by the defense, Deborah Young, a professor of textile science at Cal Poly Pomona, wrote that “[a]t first glance” the pieces of fabric from the ligature and the pantyhose “appear to connect, but once the deliberate space between them is removed, it becomes quite clear that they do not match … My opinion is that while both pantyhose were cut in the same basic silhouette, they were not cut from the same piece. These are not a match, and certainly not to ‘the exclusion of all other pantyhose.’”

Mills also has conceded that Texas lab serology expert Cassie Carradine—who later was implicated in mismanagement of the Austin police crime lab—provided inaccurate testimony at trial about blood evidence that appeared to exclude Swearingen as the killer. Blood flakes found under Trotter’s fingernails were subjected to DNA testing and revealed a DNA profile of an unidentified male who was not Swearingen. Carradine incorrectly testified that because the flakes were “bright red,” they couldn’t have been under the victim’s fingernails, and must have come from contamination “either at the time the sample was being collected” at autopsy “or after the sample was being collected,” rather than from a physical struggle between Trotter and her killer. Mills said that Carradine “had no direct knowledge about how the evidence in question was collected or stored prior to its submission. …Nonetheless, during testimony, she expressed an opinion that the profile from a particular sample was the product of contamination … The full range of possibilities include contamination or that it was not contamination and the [DNA] profile [excluding Swearingen] did come from the evidence.”

In addition, multiple experts—including four forensic pathologists, three forensic entomologists, and a forensic anthropologist—dispute the Harris County medical examiner Joye Carter’s trial testimony concerning the timing of Trotter’s death, saying she was killed and her body dumped in a national forest at a time in which it was impossible for Swearingen to have killed her. Three days after Trotter went missing, Swearingen was arrested for a traffic violation and was still in jail three weeks later, when Trotter’s body was discovered. Carter testified at trial that Trotter had been dead the entire time she was missing, but later recanted that testimony, writing in an affidavit that Trotter had been dead for two weeks when her body was discovered. The eight other experts all agreed that Trotter was killed no more than two weeks before her body was found, at a time when Swearingen could not have killed her.

Swearingen’s lawyers are convinced of his innocence. Bryce Benjet of the Innocence Project, who is co-counsel for Swearingen, told the Washington Post, “[e]specially where the United States Supreme Court has recognized that invalid forensic testimony contributed to 60 percent of wrongful convictions, we should not execute a man based on science we now know is false.” Rytting added: “They may put Swearingen in the ground, but this case will not die with him. This case has questions that will still be asked.”