Anne Holsinger 0:01

Hello and welcome to discussions with DPIC. I’m DPIC managing director, Anne Holsinger. In this episode I’ll be speaking with James Rytting, who represented Texas death row prisoner, Larry Swearingen. Mr. Swearingen was executed on August 21, 2019, despite serious problems with virtually every piece of forensic evidence in his case. This case illustrates systemic problems with the reliability of forensic science and the difficulty of presenting new evidence on appeal, even when a prisoner may be innocent. Mr. Rytting, thank you for joining us today.

James Rytting 0:32

Thank you.

Anne Holsinger 0:33

Mr. Swearingen’s case involved a litany of bad forensic science, including misleading testimony about multiple pieces of evidence and a disputed timeline regarding the date of the victim’s death. You’ve described the prosecution’s case against Mr. Swearingen and as forensic quackery. Could you give us a short overview of what was wrong with the prosecution’s evidence?

James Rytting 0:52

The main thing that was wrong with it was that they had what they call the smoking gun. The smoking gun was a pantyhose ligature that was found around the neck of the victim. It was found under very strange circumstances. The body appeared in the woods 22 days after Mr. Swearingen was incarcerated. In between the time he was incarcerated, and the body was found they searched his trailer twice and did not find anything that was connected with a ligature. After the ligature shows up, they then go back to the trailer, and lo and behold, they came up with another piece of pantyhose from which they said the ligature was cut. After that, they take it to DPS lab, and this is where the quackery begins. And the quackery may be too strong a term, well just because it suggests that this is unusual that we have an analyst that is not qualified in the usual sense, but that’s not true. She had the qualifications, such as they were, the person that did the analysis, was not a bufon. She was not trying to fool anybody. But she was following protocols that cannot be used in anything that’s considered a scientific inquiry. What she did was she received the both pieces of the pantyhose. She knew where they came from. She knew what the objective was, which was to match them up. She knew who wanted to, who wanted those pieces of pantyhose matched up and why. There was no distance between her and the and law enforcement, none whatsoever. And she continued in close communications with them, was given their theories of the case throughout. But the very basic scientific flaw in her analysis was that she compared both on the same template she put both the ligature and the pantyhose on a piece of glass, single piece of glass to compare them. Now when she did this, for the first time, she came to the conclusion that there was no physical match. From then on, there was an attempt to match the two without taking any of the basic precautions to make sure that you’re not biased. And these could easily have been conceived and put into place. She could have prepared both pantyhose and the ligature independently on different templates, they could have had different analyst prepare both before they compare them. But instead, they put them on, both pieces on a single template, on a single glass slide and then on a single glass tube and pushed and pulled until they made them match. It was literally manufactured evidence. And this, unfortunately, is not unusual. It is a customary procedure when people are making tear mark comparisons. So, it goes much further than Mr. Swearingen’s case. In fact, all the experts I talked with, when I even made the suggestion, that the analyst who testified at trial should have taken these measures, they had not conceived of them before in their own practice. They had not implemented them before in their own, when dealing with their cases. And they suggested that it that there were other signs, other methods that they had to follow, none of which prevent bias, none of which prevent false matches as in this case.

Anne Holsinger 4:41

Wow! There was also some dispute about the time of the victim’s death. Could you explain some of that, too?

James Rytting 4:51

This has to do both with flawed forensic evidence and the inability of the courts to recognize legitimate conclusions and the scope of those conclusions when they’re made by actual scientists who’ve looked at a wide variety of evidence. In this case, the victim disappears on December 8. Melissa Trotter was her name. Her body is recovered from the Sam Houston National Forest, where it was found just lying on the ground wasn’t, wasn’t covered with detritus. It wasn’t hidden. It wasn’t buried. It was just on top of the ground. And it was found on January 2, 1999. That’s 25 days after she disappeared. Larry, Larry Swearingen was picked up on suspicion of this murder on December 11 — 22 days before the body is found. And the Joy Carter, the former medical examiner of Harris County, testified at trial that she believes the post mortem interval was 25 days. She, she hedged that just slightly she said 25 days or so. But she put it right on the period of time that Larry Swearingen was out of prison between that, between December 8 and December 11. That was her PMI. And she had no basis for making this presumption or making this conclusion. She testified at an evidentiary hearing that she did not have climate data. She testified at the evidentiary hearing, and this is several years after the trial, that she did not have familiarity with the environment in which the body was found. So, her trial testimony just for those reasons was illegitimate, but was accepted and has been accepted by the court. Meanwhile, I obtained the opinions of no less than five medical examiners, chief medical examiners with international reputations, all of whom worked for nothing. They refused to take money in this case and they came to the conclusion that the body of Melissa Trotter was thrown in the woods, no more than 10 days or so before the body was found, which means Mr. Swearingen was in jail when that body was left in the Sam Houston National Forest.And they looked at a variety of evidence, they looked at the autopsy report. There was photographs of the spleen, of the heart. They, we recovered a slide in the medical examiner’s office, at the Harris County Medical Examiner’s Office, which had tissue preserved, heart tissue, some lung tissue, and then within that, there with venous tissue, nerve tissue, some fatty tissue, all of it looked like it had been biopsied; that is taken from someone that was alive except for the presence of some bacteria that had, that had started to proceed (unclear), but all the subcellular structures were intact. So, that leads to the conclusion that the body had not been exposed to the conditions that were found in the Sam Houston National Forest for as long as the state said, because all those subsets of cellular structures start to decompose, that is decompose. Decomposition is a microscopic phenomenon with macroscopic features. You see it, you see it. They also looked at the gross anatomy and came to the same conclusion.

Everything fit with a (unclear), much shorter than the 25 to 22 days, that was testified to at trial. They were all ignored by the court. And then another aspect of the case was they used cell phone testimony to try to track Mr. Swearingen, they claimed that they could do with cell phone evidence. And they introduced what is called a drive test map, which has splotches on it, very discreet colored splotches on it, all fits together like a puzzle. And they claim that these were the areas that various antennas on the cell towers covered. They look like on the map, probably between oh, maybe 10 square miles or so. Couple miles, maybe 2-3 miles in, with three miles in depth, and no more than that. When a cell phone tower broadcasts a beam, each one of it, the all three of its antennas because they usually have three antennas that covers a radius, an area with a radius of 21 miles that gives you thousands of square miles of coverage. So, you cannot track people using the methods that they, they said they could. But that too was accepted by the courts. Their, I mean their testimony at trial which was: we can show where he was at certain times based on his phone calls and we can track him going to and from distinct geographical locations, none of which is true.

Anne Holsinger 10:25

So, do you think that, that kind of bad analysis is the source of most of the flawed forensics in this case? Or do you think other factors were at play, like poor training of the technicians or intentional misconduct or, or other factors?

James Rytting 10:41

Well when it comes to things like the pantyhose matching, that has to do with, not poor training of the technicians, as a specific example, like I said. But with the standards that are generally used in the forensic professions, they apparently do not or did not at the time, come in with a basic background in scientific method. What you need to do, to blind yourself to make sure that you are not biased, that you are not confirming a foregone conclusion, that you should not have, be considering, when you’re doing the test, and preparing the materials. And that’s the big problem. Then the other problem has to do with, I believe both the training of the attorneys and the judges, which is very much antiquated. The legal professions basic education is not up to par. You can come into law school with a degree in comparative literature, with political science. 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. It’s much more important actually, than knowing 18th century literature, as valuable as that knowledge may be in other circumstances. Lawyers and judges who all, generally all are lawyers, do not have a basic training in the sciences, or in necessary areas of quantitative analysis, you know, statistics, they’re not, they don’t have a basic education in those, in those areas.

Anne Holsinger 12:33

So that kind of flawed methodology that you described, was found in an FBI investigation of hundreds of cases. They discovered that forensic experts had exaggerated the conclusions that could be drawn from the forensic evidence. And there has been widespread criticism of a lot of fields of forensic analysis. And yet, that type of evidence continues to be used and trusted in criminal cases, even in death penalty cases. Do you think that the lack of training is the reason? Or are there other reasons why it persists?

James Rytting 13:07

Well, part of it has to do with the pressures that are on the prosecutors and on the state to get convictions and get the death penalty in these cases. In many ways, it’s the same pressures that are, that people say for example: they have serious health problems and the traditional medicine is not working. Your allopathic medicine going to the doctor, getting the test done, until they turn to something else and they want it to work. They just want it to work. So they ignore, and they ignore evidence to the contrary and they believe that these you know, home cures may be helping. They don’t look at things rigorously. Here, you want to make sure that justice is done, you want to convict, find someone who killed the victim, and punish them severely. That’s the, that is the motivation. And so, that is in conflict with sort of objective, cool analysis of the scientific evidence. It’s quite, quite simple in that regard. But then still, education is a serious problem. I mean, take ballistics. Ballistics, it’s just, it’s almost mind boggling that that is still allowed in the courtroom, ballistic evidence. The theory behind that is that, each gun barrel is distinct, right? And makes distinct marks on bullets and it’s been allowed for years. And this just shows how dismal I think the, either the analytic resources or the education of the bench and bar has been, in that you can go to a drugstore and see thousands of nuts and bolts all milled, exactly alike. Why can’t you do with that with a gun barrel? Well, you can, right? There should be thousands of identical gun barrels, if they’re using the same laid, made to the same specs. But that, even though that basic analogical reasoning has been, was it, has been ignored and was ignored for years and people got convicted on the testimony of basically they were cops, who you took a few extra classes, who said they could tell from the marks on the bullet that it had to come from the gun that the defendant was wielding.

Anne Holsinger 15:26

So you have all of this flawed evidence and yet in the days leading up to Mr. Swearingen’s execution, three courts, including the US Supreme Court, rejected his requests for a stay of execution. How did those courts dismiss such compelling evidence of innocence?

James Rytting 15:42

That has to do with the law. This is, and it has to do with the main law that is, leads to these unjust results. Is a federal law, the Anti Terrorism and Effective Death Penalty Act — which does not allow you to introduce evidence after you file your initial petition and have that rule done, except under the most extreme circumstances. The standards are that you have to show by clear and convincing evidence that your client is innocent. And you have to show that the evidence you’re presenting, demonstrates he is clearly and convincingly innocent, could not have been discovered beforehand. That leads to severe distortions, I believe in the judicial system, in the way that post-conviction proceedings go. Because the whole objective after that is not to get clarity about whether someone’s innocent or not, it’s to muddy up the work. That’s what the prosecution’s job is in post-conviction. To show, to try to raise, you know, some data to show, to show that well, it’s, it’s, it may be, you know, probative evidence, it may be solid evidence. But hey, it’s not clear and convincing. In the end, it turns out to be a very subjective standard that is almost impossible to meet. And it, in the meantime, it looks like oh, we’ve given you all this process, all these chances, it’s been a fair system, when it is absolutely not.

Anne Holsinger 17:27

Your client is one of many people who’ve been executed despite serious doubts about their guilt, because of such a system. We’ve found at least 10 cases in Texas alone. For instance, Cameron Todd Willingham, who was executed based on junk arson science. Carlos DeLuna, whose prosecutors knew that another man, also named Carlos, who looked just like DeLuna, was the real killer. Robert Pruett, who was executed even though forensic testing of the knife used to kill a prison guard found DNA that didn’t belong to either him or the victim. So what is going on in Texas? And how can the judicial process be changed to prevent more executions like these?

James Rytting 18:09

Well, let me start with making a plug for Texas, in that the legislature has passed several laws that are cutting edge leading the nation in the protections that they provide for death-sentenced clients. You there is a junk science writ, if you come up with new scientific evidence or even if an expert changes their opinion, you can get back into state court and that’s not much better than the federal system. In that regard, the federal system could take a lesson from the Texas Legislature. You can in Texas, due to a case called Ex Parte Chabot, raise a claim, a due process claim, because you were convicted by false testimony, even if the prosecutor didn’t know it was false. That’s not the case in the federal system, the federal system again, could take a chain, a lesson from the Texas courts in the situation. But the larger question of why there’s so many death penalties in Texas and why there’s so much resistance by the prosecution to admitting that, oh, at least we need a new trial. We know and people should know that ,we’re not, the the big reward is not freedom and meals in the public square for the rest of your life. No, it’s just a new trial. But they resist that mightily despite this type of evidence. And I just think it’s misguided. I think it’s a violation of their ethical duty, how to change that, that’s going to take a change sort of in the culture of Texas, which, in which the death penalty is used to, used as a means to get elected. In which harsh punishments are valued highly and they become a political plus for you, if you go, you know, the more cruel you’re going to be, the better. And I think that is changing. A lot of it’s changing because the big counties that used to fill up the death rows like Harris County, Dallas County, Bear County and some of the other large counties with major urban areas are now democratic, not just the city itself, but the counties.

Anne Holsinger 20:36

So you think that the election of reform prosecutors will help this kind of problem?

James Rytting 20:41

Well it already has I mean, already has in Dallas County when I believe Mr. Washington was elected, he’s no longer with the DA there. And it has in Harris County with the election Kim Ogg. So these, this is the demonstrable face of new convictions for capital crimes slowed down dramatically in Texas. And I should say, Texas get in the hot seat now because of the sheer volume. But when you look at other states, there’s a serious problem to Nevada, Florida, Virginia. And in fact, in some of these cases give relative the population, the death, the numbers of death penalties, the number of executions are right up there with the state of Texas. So it shouldn’t be considered an outlier, so much. I mean, it is a big problem, is it’s a huge state with nearly 30 million people and a huge death row.

Anne Holsinger 21:39

Part of how these wrongful convictions occur, is that juries may not understand the kinds of evidence that are presented to them. So if you could speak frankly, with someone who was about to serve on a Capitol jury, what would you tell them about how to approach forensic evidence?

James Rytting 21:56

Well if I, if I were making a closing argument, that’s what attorneys do, this is what you’re asking. What would your closing argument be? Well, first, you have to have something to bring to the table, you need to have your own expert, who has carefully looked at the evidence and come to their conclusion. And the other thing is, before it gets to the jury, you should have done whatever you could to make sure that at least it satisfies what are called Daubert criteria. That is reliable, relevant evidence that it is, it does pass scientific muster. That it’s, you know, it’s that it’s testable, that the conclusions aren’t overstated and so forth. That work really needs to be done before you get to the jury. Because once you get there with the state expert, already having testified the jury is not going to think that Mr. Attorney knows more than the person with the credentials that has been put on the stand. So, you know, it is, it is a situation where talking to the jury is about junk science. Is a step to late. It’d be great if we had a ,if you know scientific literacy increases with increased education , you know in this country. Let’s, but something needs to be done before that corner’s turned.

Anne Holsinger 23:26

Is there anything else that you would like to tell our listeners about this case or about the problem of innocence and death penalty cases in general?

James Rytting 23:35

Well, I would like to say something to the listeners, not about death penalty cases, but about all the cases in which people are serving life sentences and sentences of, you know, 40 years 50 years, which is tantamount to a life sentence. There are thousands and thousands of those people and their cases aren’t reviewed. They are convicted by junk science. They are convicted by no fault scientific testimony, exaggerated scientific testimony. But they don’t, their cases aren’t reviewed, except in the rarest of circumstances, because only death sentenced clients are allowed an attorney, allowed resources in habeas corpus. So that should be kept in mind, that this isn’t a discrete problem having to do with people who are on death row. This is a huge problem having to do with people that are wasting away in our prison system.

Anne Holsinger 24:37

Thank you. That’s absolutely an excellent point. You know, here at DPIC, we’re so focused on death penalty cases that I think sometimes we can overlook how little review other cases get relative to capital cases.

James Rytting 24:50

Well, you’re welcome. And thank you for having me on.

Anne Holsinger 24:54

We’re glad to have you. We appreciate you joining us today. For our listeners, to learn more about the death penalty, please visit the DPIC website at We’ll include a link to more information about Larry Swearingen in this episode’s description. And to make sure you never miss an episode of discussions with DPIC, please subscribe on your podcast app of choice.