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Thread: Larry Ray Swearingen - Texas Execution - August 21, 2019

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    Larry Ray Swearingen - Texas Execution - August 21, 2019


    Melissa Trotter






    Summary of Offense:

    Melissa Trotter disappeared from Montgomery College on December 8, 1998. Her body was found nearly a month later in the Sam Houston National Forest with a piece of pantyhose around her neck. She had been strangled.

    Swearingen was sentenced to death in Montgomery County in July 2000.

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    September 19, 2007

    Swearingen appeal denied

    Convicted murderer Larry Ray Swearingen's appeal has been denied by 9th state District Court Judge Fred Edwards, but Swearingen's attorney said he will continue fighting to prove Swearingen's innocence.

    Last Thursday, Edwards signed the findings of fact and conclusion of law after weighing testimony presented during an evidentiary hearing in his court in July.

    "It is the recommendation of this court that the relief requested by Applicant be denied," the document states.

    Swearingen, 36, who was convicted of kidnapping and strangling 19-year-old Melissa Trotter, was to die by lethal injection in January when the Texas Court of Criminal Appeals granted him a stay to re-examine 6 issues pertaining to his trial. Among the issues was whether the prosecution's experts had incorrectly determined the time of Trotter's death.

    The case now heads back to the Texas Court of Criminal Appeals. A decision is expected in a matter of days or weeks, but no timeline is set.

    If the Court of Criminal Appeals rules in favor of Edwards' decision, the case will return to the 9th state District Court for a reset of the execution date. If so, Rytting plans on appealing the decision to a federal court.

    "There is no way we are going to let Montgomery County kill Larry Swearingen," Rytting said. Trotter was last seen on the Montgomery College campus Dec. 8, 1998. Her body was found in the Sam Houston National Forest 25 days later.

    According to Edwards' conclusion of law, Swearingen's "death sentence was lawfully imposed," but Swearingen's Houston attorney, James Rytting, argues that Edwards and the state are ignoring "powerful" pathological evidence.

    "Someone else killed her," Rytting said. "There isn't even a question about it. The pathological evidence shows that it had to be someone else."

    During the evidentiary hearing, Rytting put Harris County Chief Medical Examiner Dr. Luis Sanchez on the stand, who testified that Trotter's body could not have been in the state forest for more than 10 days, or at most, two weeks. He based his opinion on the condition of the liver and pancreas, which usually deteriorate rapidly after death.

    In addition to Sanchez's testimony, entomologists stated that blow flies had not colonized in Trotter's body before Dec. 18, 1998.

    Rytting believes the evidence supports Swearingen's innocence because Swearingen was in jail for at least a week before Trotter's body was taken to the woods.

    But Edwards' conclusion of law states that the evidence presented during the hearing would not have changed a juror's decision to convict Swearingen.

    "Based on the trial counsel's credible explanation that he had no reason to be looking for any evidence, entomological or otherwise, that would have contradicted the state's theory as to the date of death because the Applicant's own medical expert agreed with the Medical Examiner concerning the date of death, counsel cannot be characterized as deficient in failing to consciously recognize the entomological evidence in this case," the conclusion of law states.

    Montgomery County Assistant District Attorney Marc Brumberger felt that the evidence presented during the hearing supported the state's case against Swearingen.

    "I thought this was a waste of time," Brumberger said. "I don't know what else they could argue." Edward's decision came as a "sigh of relief" to Melissa Trotter's parents, Sandy and Charles Trotter, who are ready to focus on their daughter's life and not her death.

    "We, as Melissa's family, are ready for this to be over with," Sandy Trotter said. "I just pray that God will walk with us these next few months. He's carried us all through this so far."

    (Source: The Courier)

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    March 5, 2008


    EX PARTE LARRY RAY SWEARINGEN

    ON APPLICATION FOR WRIT OF HABEAS CORPUS

    IN CAUSE NO. 99-11-06435-CR FROM THE

    9TH DISTRICT COURT OF MONTGOMERY COUNTY

    ------------------------------------------------------------------------------

    Per Curiam

    ORDER

    This is a second subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5.

    Applicant was convicted of capital murder on June 28, 2000, and sentenced to death. We affirmed the conviction and sentence on direct appeal. Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App. 2003). On March 11, 2002, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Swearingen, No. WR-53,613-01 (Tex. Crim. App. May 21, 2003). On January 22, 2007, applicant filed a subsequent application. Six of his claims were remanded to the convicting court for resolution. We reviewed the findings of the convicting court, adopted them, and denied his application. Ex parte Swearingen, WR-53,613-04 (Tex. Crim. App. January 16, 2008). Applicant has now filed this second subsequent application in which he raises six claims. After reviewing the application we find that claims one through four do not meet the requirements of Article 11.071, Section 5, for consideration of subsequent claims and they are dismissed as an abuse of the writ.

    Applicant's claims five and six allege that the State withheld material, exculpatory evidence and knowingly sponsored false testimony. We find that applicant's claims five and six meet the requirements for consideration of subsequent claims. These claims are remanded to the convicting court for resolution. While resolving the claims, we request that the convicting court specifically inquire into the following: (1) Whether applicant's trial counsel reviewed or had access to the reports that Robbie Grove had been interviewed as a suspect or person with possible information as part of the investigation; (2) whether habeas counsel reviewed or had access to the reports that Robbie Grove was investigated, and (3) whether investigators interviewed Lisa Roberts as part of the investigation. The trial court shall also make findings of fact regarding whether an affidavit from Lisa Roberts could reasonably have been obtained before applicant's first application was filed, and the credibility of the affidavit..

    IT IS SO ORDERED THIS THE 5TH DAY OF MARCH, 2008.

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    Swearingen had a motion to recuse denied in the Texas Court of Criminal Appeals opinions of November 26, 2008.

    Opinion is here:

    http://www.cca.courts.state.tx.us/OP...=AP-75,966.PDF

    The rest of Swearingen's claims were denied in the TCCA orders on December 17, 2008. He had previously had an execution date in January 2007.

    Opinion is here:

    http://www.cca.courts.state.tx.us/OP...-53,613-05.PDF

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    December 27, 2008

    CONROE — After years of legal appeals and a stay of execution, convicted killer Larry Swearingen is set to be put to death Jan. 27 for the sexual assault and strangulation of 19-year-old Melissa Trotter in December 1998.

    The execution date was set this week after Swearingen's third appeal was denied by the Texas Criminal Court of Appeals.

    The appeals court last week rejected Swearingen's claims that prosecutors withheld evidence and presented false testimony during the trial. It also dismissed evidence from Dr. Joye Carter, then the medical examiner of Harris County, who in 2007 changed her opinion on Trotter's date of death, placing Swearingen in jail when Trotter was killed.

    In previous appeals, Swearingen's attorney James Rytting has presented insect and pathology evidence, which he contends proves his client is innocent.

    Trotter disappeared from Montgomery College on Dec. 8, 1998. Her body was found nearly a month later in the Sam Houston National Forest with a piece of pantyhose around her neck.

    Rytting had three experts, including current Harris County Medical Examiner Dr. Luis Sanchez, testify during a July 2007 evidentiary hearing. Based on the presence of the insects on her decomposed body, Swearingen's experts say Trotter died after Dec. 11 and as late as Dec. 18, when they say insect infestation occurred, contradicting state evidence.

    Swearingen was arrested on Dec. 11 on an unrelated charge and remained in jail until his trial.

    Prosecutors contend that Trotter was killed on the same day she was abducted, and their evidence was bolstered by Carter's autopsy report. She had determined that Trotter's body had been in the woods for 25 days, and said the date of death was Dec. 8, 1998.

    In the report, Carter also noted that she had removed and dissected the pancreas and other internal organs. Sanchez, however, testified in July 2007 that if Trotter's body had been exposed to the elements for 25 days, those organs would have liquefied, and an examination and dissection of them would not have been possible.

    Carter later reviewed the case and reversed her opinion.

    Rytting said he will file another appeal in the federal court and petitions for clemency with the Texas Pardons and Parole Board and with Gov. Rick Perry. He accused prosecutors of "hiding behind legal technicalities to kill an innocent man."

    Marc Brumberger, who handles appellate and post-conviction cases for the Montgomery County District Attorney's Office, could not be reached for comment on Friday.

    Trotter's parents said they felt relieved to learn Swearingen's appeal had been denied and an execution date set.

    "On Monday I got the call, and I was very overcome with emotion," said Sandra Trotter, the victim's mother. "It was like I couldn't believe it was set. I can only pray this is the end. It's been 10 years."

    But she said she also is painfully aware that things could change. Last year, Swearingen received a stay on Jan. 24, 2007, the day before he was to die by injection.

    Melissa Trotter would have been 29 this year. Sandra Trotter said she often wonders what would her daughter be doing with her life and what she would have accomplished.

    Trotter said she and her husband will attend Swearingen's execution. She said she wants him to see that she is thriving.

    http://www.chron.com/disp/story.mpl/...n/6182889.html

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    Swearingen was denied a writ of mandamus in a TCCA opinion dated January 6, 2009.

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    January 9, 2009

    Three weeks before his execution date, Larry Ray Swearingen is asking for new DNA testing to take place, saying it will show he is not the man who killed 19-year-old Melissa Trotter 10 years ago.

    In addition to the request for testing, Swearingen is asking for a stay of execution until testing is completed and the findings are presented. Swearingen is scheduled to die on Jan. 27, almost exactly two years after a stay of execution was issued for him following the filing of an appeal.

    According to the requests filed Wednesday in the 9th state District Court of Judge Fred Edwards, “despite the state’s efforts, pretrial forensic analysis, including DNA testing, failed to implicate Mr. Swearingen.

    “DNA analysis of the blood in the victim’s fingernail scrapings confirmed that the blood was from a male but it excluded Mr. Swearingen as the donor.”

    The evidence referred to in the requests was presented during Swearingen’s trial in 2000, when he was convicted and sentenced to death, his attorney, James Rytting, said.

    “It’s not a cut-and-dried case,” Rytting said. “There were problems with it from the beginning.”

    Swearingen made requests for DNA retesting in the fall of 2004, which was denied, and in May 2008, which was ignored, according to Rytting.

    “It’s not Larry’s fault for sure (that testing did not happen sooner),” Rytting said. “He was saying, ‘Please test the blood.’”

    The latest requests also specify that testing of scrapings should be taken from both the left and right hands and that scrapings from ripped jeans and a foreign pubic hair should be tested. The order, if signed by Edwards, would also require the testing results to be compared to state and federal DNA databases.

    The prosecution plans to respond to the requests by the end of the week, Montgomery County Assistant District Attorney Marc Brumberger said. He did not want to give any details of what the response will include, but he said he was not surprised by the filing.

    “In capital cases, they try to file any pending ideas before the execution,” Brumberger said. “That is common.”

    Edwards said he will rule on the requests after he receives the state’s response.

    If Edwards denies the request, Rytting plans to appeal the decision to the Texas Court of Appeals. He also plans to take decisions on previous evidentiary hearings to the federal court.

    “He is an innocent man; that’s why I’m doing this,” Rytting said.

    Melissa Trotter’s mother, Sandy, said she doesn’t know what to think, and she is asking her friends and family to write letters to the state Board of Pardon and Parole to express their desire to see Swearingen executed.

    Swearingen needs to die for the justice of her daughter, she said.

    “As Melissa’s mother, I have to do this for her,” Sandy Trotter said. “It’s time for him to have the ultimate punishment. … I’m hoping it’s going to happen this time.”

    People wishing to encourage state officials to not execute Swearingen can also write to the board.

    http://www.hcnonline.com/articles/20...ringen0108.txt

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    January 18, 2009

    Ninth state District Court Judge Fred Edwards denied Larry Swearingen’s requests for a stay of execution and additional DNA testing, but now the judge is considering Swearingen’s request for a hearing as his execution date approaches.

    Swearingen is scheduled to die a week from Tuesday, but his attorney, James Rytting, believes the court system has made a mistake and an innocent man will die if additional testing isn’t allowed.

    “Montgomery County is killing somebody based on a lie,” Rytting said.

    Edwards said he did not grant a delay in the execution or the additional testing because the evidence presented in the request was presented to the court previously.

    Swearingen was convicted of killing 19-year-old Melissa Trotter 10 years ago. She disappeared Dec. 8, 1998, and her body was found in the Sam Houston National Forest Jan. 2, 1999. Trotter had been strangled with one leg of a set of pantyhose.

    Swearinggen, an ex-convict working as an electrician, met Trotter Dec. 6. On Dec. 8, the day she disappeared, the two met at the Montgomery College campus, where Trotter was a student.

    On Dec. 11, Swearingen was arrested for outstanding traffic warrants and remained in jail after becoming a suspect in Trotter’s disappearance. When her body was found, Swearingen had been in jail for three weeks.

    He charged and convicted of her killed and sentenced to death. In January 2007, he was scheduled to be executed, but a stay of execution was implemented when Rytting filed an appeal. Several hearings on the decomposition of Trotter’s body, the availability of witnesses and evidence and other matters were held prior to Edwards setting the new execution date for Jan. 27.

    Following each hearing, Edwards ruled that the evidence presented would not have changed jurors’ minds. The Texas Court of Criminal Appeals, which ordered the hearings, has agreed with Edwards each time.

    The prosecution’s response to Swearingen’s recent filings states that the requested DNA testing was either presented to the jury, which still found Swearingen guilty, or the requested DNA testing is unauthorized because the state was not in possession of it. The prosecution’s argument goes on to state that the DNA evidence which was collected and identified as male, but was not an exact match to Swearingen, was entered into a national database and continues to be searched periodically.

    Toward the end of the District Attorney’s Office’s argument, the DA states that Swearingen is “throwing everything he can at the walls of this court in the hope that something sticks, without bothering to thoroughly review the record in this case.”

    But Rytting calls the prosecution’s arguments over the years a “theory case.”

    He added that the Innocence Project, a New York-based organization that works to exonerate innocent people across the nation, has become involved in Swearingen’s case.

    Swearingen also has received support from “a concerned citizen,” who sent a letter to the Parole Board in Austin. In the letter, which also was sent to The Courier, the citizen asks that the male DNA found in blood underneath Trotter’s fingernails be tested against the man who was convicted of murdering Wanda Pitts the same year Trotter went missing. William Mathews, who had been hospitalized previously for mental difficulties, was convicted of kidnapping and strangling Pitts.

    The letter points out many similarities in the murder, which were brought up before Swearingen’s trial.

    Trotter’s mother, Sandy Trotter, has encouraged people who believe Swearingen is guilty and should die to write the parole board.

    (Source: The Associated Press)

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    January 21, 2009

    AUSTIN – Texas Attorney General Greg Abbott offers the following information about Larry Ray Swearingen, who is scheduled to be executed after 6 p.m. on Tuesday, January 27, 2009.

    On July 11, 2000, Swearingen was sentenced to die for the kidnaping, rape and strangulation of Melissa Trotter. A summary of the evidence presented at trial follows.

    FACTS OF THE CRIME

    After meeting Trotter, a nineteen-year-old college student, in December 1998, Larry Swearingen told his co-workers and friends that he had met an attractive college girl and hinted that he wanted to have sex with her. In the early afternoon of December 8, Swearingen and Trotter were seen departing together from Montgomery College in Conroe after talking to each other in the school library.

    Trotter’s friends and family never again saw the college student alive. Swearingen became the focus of an investigation into the woman’s disappearance, because he was the last person seen with her. On December 11, Swearingen was arrested on unrelated outstanding warrants.

    On January 2, 1999, Trotter’s partially nude body was discovered in Sam Houston National Forest. She had been strangled with a piece of torn hosiery found around her neck. Evidence showed she had been raped.

    Fiber evidence showed that Trotter had been in Swearingen’s trailer, on the floor and perhaps on the bed, and in the cab of his pickup truck. And evidence in the truck cab showed that some of her hair had been pulled from her head. Although neither Swearingen nor his wife smoked, a pack of cigarettes, Trotter’s brand, was found in Swearingen’s trailer. A piece of hosiery, the companion to the piece used to strangle Trotter, was found in a trash heap beside Swearingen’s trailer. Hair evidence linked the hosiery to Swearingen’s wife. Cell phone records showed that on the day that Trotter disappeared, Swearingen traveled from his trailer to the area where the body was found. After Trotter disappeared, Swearingen told friends that he was in trouble and that the police would be after him.

    While in jail awaiting trial, Swearingen, using a Spanish-English dictionary, composed a letter in crude Spanish, purportedly written by an individual named “Robin.” In the letter “Robin” identified Trotter’s killer as an individual named “R.D.” The prosecution alleged that Swearingen composed the letter, arranged for it to be hand-copied by a cellmate, and had the letter delivered to authorities, to deflect blame from himself.

    PROCEDURAL HISTORY

    Jan. 26, 1999 – A Montgomery County grand jury indicted Swearingen for kidnapping-related capital murder.
    Nov. 2, 1999 – He was reindicted, with rape-related capital murder added.
    June 28, 2000 – A jury found him guilty of capital murder.
    July 11, 2000 – After a separate punishment hearing, the court sentenced him to death.
    Mar. 11, 2002 – Swearingen filed his initial state application for habeas corpus relief.
    Mar. 26, 2003 – The Texas Court of Criminal Appeals affirmed his conviction and sentence.
    May 21, 2003 – The Texas Court of Criminal Appeals denied Swearingen’s initial application for habeas corpus relief. He filed his petition for habeas corpus relief in the federal court, Southern District, Houston Division.
    Oct. 19, 2004 – In the trial court, Swearingen, acting without a lawyer, sought additional DNA testing.
    May 21, 2004 – Swearingen filed a petition for writ of habeas corpus in a Houston U.S. district Court.
    April 7, 2005 – The trial court denied his request for additional testing.
    April 8, 2005 – Still acting without counsel, in connection with this testing request, Swearingen sought mandamus review with the Texas Court of Criminal Appeals.
    May 20, 2005 – Again acting without counsel, Swearingen filed a second application for mandamus review with the Texas Court of Criminal Appeals.
    June 8, 2005 – The Court of Criminal Appeals denied both requests for mandamus review.
    Sept. 1, 2005 – Swearingen filed petition for writ of certiorari with the U.S. Supreme Court asking that Court to review the state court’s denial of his second mandamus request.
    Sept. 8, 2005 – In federal habeas corpus proceedings, the district court denied relief but allowed Swearingen to appeal.
    Sept. 9, 2005 – Swearingen filed a notice of appeal with the Fifth U.S. Circuit Court of Appeals.
    Feb. 1, 2006 – The Texas Court of Criminal Appeals dismissed Swearingen’s appeal in connection with his request for DNA testing.
    Feb. 21, 2006 – Swearingen sought rehearing from the Court of Criminal Appeals in connection with his DNA testing request.
    Mar. 27, 2006 – The U.S. Supreme Court denied certiorari review of state court’s denial of mandamus review.
    May 10, 2006 – The Texas Court of Criminal Appeals denied his request for rehearing on his DNA appeal.
    July 31, 2006 – The Fifth U.S. Circuit Court of Appeals affirmed the federal district court’s denial of habeas corpus relief.
    Nov. 22, 2006 – Swearingen filed a petition for writ of certiorari with the U.S. Supreme Court.
    Jan. 22, 2007 – Swearingen filed a second application for state habeas corpus relief.
    Jan. 23, 2007 – The Texas Court of Criminal Appeals remanded the application for a hearing.
    Feb. 20, 2007 – In federal court, after the Fifth Circuit Court affirmed the district court’s denial of habeas corpus relief, the U.S. Supreme Court denied certiorari review.
    Jan. 16, 2008 – As for Swearingen’s second state habeas corpus application, when the case returned after remand, the Texas Court of Criminal Appeals denied relief.
    Jan. 22, 2008 – Swearingen filed a third state application for habeas corpus relief.
    Mar. 5, 2008 – The Texas Court of Criminal Appeals remanded the third application for a hearing.
    July 31, 2008 – Swearingen, without an attorney, filed a third application for mandamus review with the Texas Court of Criminal Appeals.
    Nov. 26, 2008 – In a separate action, the Texas Court of Criminal Appeals dismissed Swearingen’s motion to recuse, filed without an attorney.
    Dec. 4, 2008 – Swearingen, without an attorney, for the fourth time sought mandamus review with the Court of Criminal Appeals.
    Dec. 17, 2008 – As for his third state habeas corpus application, upon return after remand, the Texas Court of Criminal Appeals denied relief. The court also rejected Swearingen’s third request for mandamus review. The convicting court set the execution date for January 27, 2009.
    Jan. 6, 2009 – The Texas Court of Criminal Appeals rejected his fourth request for mandamus review.

    EVIDENCE RELATED TO PUNISHMENT

    In the punishment phase of his trial, evidence was introduced that Swearingen had committed two unadjudicated rapes, one unadjudicated assault on his ex-wife, and that while awaiting trial, he had tried to escape.

    (Source: The Texas Attorney General's Office)

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    January 26, 2009

    Four pathologists back death row inmate's innocence claim

    Swearingen, slated to die Tuesday in college student's 1998 murder, was in jail at time, 4 now say

    Four forensic pathologists agree that Larry Swearingen, set to be executed Tuesday, could not have committed the 1998 murder that sent him to death row.

    The four include the medical examiner whose testimony helped secure Swearingen's guilty verdict. That medical examiner now says college student Melissa Trotter's curiously preserved body could not have lain in the East Texas woods for more than 14 days — and probably was there for a much shorter time.

    The results mean Swearingen was in jail when the 19-year-old's body was left behind, the pathologists say.

    "It's just scientifically impossible for him to have killed the girl and thrown her into the woods," said James Rytting, Swearingen's appellate lawyer. "It's guilt by imagination."

    Prosecutors disagree, saying compelling evidence ties Swearingen to the crime, including a match between the panty hose leg found around Trotter's neck and the stocking remnant found in a trash dump next to Swearingen's mobile home. Also, hair and fibers show Trotter had been in Swearingen's truck and mobile home in Willis, about 40 miles north of Houston.

    But in court briefs seeking to keep Swearingen's execution on track, prosecutors do not attack the conclusions by the four pathologists beyond labeling them "opinion evidence based on experts' second-hand review of others' work and photographs."

    One of those pathologists, however, did Trotter's autopsy.

    http://www.statesman.com/news/conten...lid=inform_sr]

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