Sunday, August 7, 2011
Elementary, My Dear Watson

How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?

Sherlock Holmes, The Sign of the Four

His name is Larry Swearingen, and whatever he did or might have done, he did not murder Melissa Trotter.
Oh, she was murdered. And there's a wealth of circumstantial evidence that led the cops to arrest and the DA to prosecute and the jury to convict Swearingen of Trotter's kidnap, rape, and murder. And the law allowed it and it was Texas so there's no surprise, really, that in the summer of 2000, after the trial, Swearingen was sentenced to be killed.

He appealed, of course. And argued. And made his claims. And there he was, near the end. August 18 is when they planned to kill him. Until someone said to hang on. Because, see, whatever Larry Swearingen did or might have done, he did not murder Melissa Trotter. Really, it's not even a debatable point, though the state of Texas continues to debate it.

Here's the thing. Years after the trial, in 2007 and then in 2009, experts (even the coroner actually looked at evidence from Melissa Trotter's body to figure out when she was killed. Huh? Don't they always do that?
Apparently not.

Here's the thing. Trotter disappeared on December 8, 1998. She and Swearingen, who knew her and had a relationship with her, were seen together that day. She was never seen alive again. He was arrested on traffic warrants three days later and has been in custody ever since. Her body was found in January. And there was all that circumstantial evidence (and there was plenty).

But when the scientists actually looked at the physical evidence of the body, well, ooops. Seems she wasn't killed until after he was in custody. Couldn't have been. So say some 10 separate scientists based on several different sorts of analysis.

Let's be clear. If she wasn't killed until after he was in custody, then he couldn't have done it. Not possible.
But all that circumstantial evidence. My god. Of course he did it.

Except he couldn't have.

Swearingen's been trying to get the courts to look at this, to recognize that if it was impossible for him to have killed her, then he didn't. The courts weren't biting.

Prosecutors in Montgomery County do not buy the setup theory, and the courts have rejected repeated pleas from Mr. Swearingen’s lawyers to review the scientific evidence. Brandi Grissom, for the Texas Tribune explains.

In a November 2009 court ruling, Melinda Harmon, a judge in the United States District Court, wrote that Mr. Swearingen should have discovered and presented the forensic evidence years earlier. But she did not only deny his plea based on procedure; Ms. Harmon wrote that the scientists’ reports were not credible because they each reviewed different kinds of evidence. Some looked at microscopic tissue samples, some examined photos and video, and others looked at bugs. “This is not a case where Mr. Swearingen’s evidence is so compelling that a court cannot have confidence in the outcome of his trial,” she wrote.

OK, what Judge Harmon said was a little more nuanced than Grissom makes it sound, but that's the general point. The experts didn't agree on all the details, and there's still some stuff that's troubling.

So there sat Larry Swearingen. On death row. To be executed August 18. For a crime that, whatever he did or might have done, he did not commit.

And then.

Look, we know Keller's view, that finality is more important that innocence.

We know that Trotter's family wants Swearingen killed.

We know that the courts have never been convinced and the prosecutors aren't even close.

And yet, and over dissents (including by Keller and her opponent in the next election), the Texas Court of Criminal Appeals stayed the killing and sent the case back to the trial court.

[T]o review and resolve the claims raised.

Hard to know exactly what that review will entail. But Swearingen gets to present his evidence. Which is no small thing.

Since whatever Larry Swearingen did or might have done, he did not murder Melissa Trotter.

As Holmes would say, it's elementary.

http://gamso-forthedefense.blogspot.com/2011/08/elementary-my-dear-watson.html