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.”