Reprieve for Larry Swearingen

A federal appeals court on Monday stopped this week's scheduled execution of a man condemned for abducting, raping and strangling a 19-year-old suburban Houston woman 10 years ago.

Larry Swearingen, 37, faced lethal injection Tuesday evening for the death of Melissa Trotter, whose body was found Jan. 2, 1999, in the Sam Houston National Forest south of Huntsville. The discovery came 25 days after she was last seen leaving the library at Montgomery College near Conroe.

The 5th U.S. Circuit Court of Appeals reprieve came in response to questions from Swearingen's attorneys about the timing of Trotter's death. Swearingen insisted he couldn't have killed the woman because he was in jail for outstanding traffic warrants when newly evaluated forensic evidence indicates her body was dumped in the woods not far from his home.

Swearingen's lawyer, James Rytting, said he was told of the ruling by the court but hadn't seen it at midday Monday.

"I can't jump up and down yet because I don't know what it says," he said. "I just don't know how long it's going to be before we have to go through this stuff again."

Swearingen would have been the fourth condemned prisoner executed this year. 2 more executions are scheduled later this week in the nation's most active death penalty state.

"This is unique," Swearingen told The Associated Press last week from death row last week. "How many cases happen after a defendant is in jail?"

Prosecutors had opposed efforts by Swearingen's lawyers to the New Orleans-based 5th Circuit and the U.S. Supreme Court.

Rytting contended deterioration of Trotter's body would have been much more severe than it was when found, raising the possibility somebody else dumped it in the woods.

A medical examiner testified at Swearingen's trial in 2000 that she believed Trotter was killed the same day she disappeared. But seven years later, the coroner submitted an affidavit changing her opinion, basing her judgment on temperature data compiled by Swearingen's defense. The new opinion, also supported by other forensic experts, said Trotter's body was in the woods for considerably less than 25 days.

The appeals court said Swearingen's due process rights were violated because prosecutors "sponsored the false or misleading testimony" from the medical examiner and that if she had been provided additional information from them she could have testified more accurately about the timing of the victim's death. The court, in returning the appeal to a federal district judge for review, also said Swearingen's trial lawyers should have better cross-examined the coroner and developed evidence from Trotter's body tissue.

Judge Jacques Wiener Jr. wrote a concurring opinion "to address the elephant that I perceive in the corner of this room: actual innocence."

"I conceive the real possibility that the district court to which we return this case today could view the newly discovered medical expert reports as clear and convincing evidence that the victim in this case could not possibly have been killed by the defendant," Wiener said.

The judge, however, complained that under existing Supreme Court rulings, lower federal courts faced with actual innocence claims may have no choice but to deny relief to someone who is actually innocent. Wiener said the full 5th Circuit or the Supreme Court may want to clarify the issue and use Swearingen's case as the precedent.

"Someone else killed the girl," Rytting said. "It's impossible (Swearingen) threw that body in the woods."

Similar appeals pointing to forensic evidence discrepancies were rejected in state courts.

State lawyers said temperature data cited by the inmate is not accurate for the crime scene because it was taken at airports miles away.

Swearingen was arrested 3 days after Trotter was last seen. At his trial, he said Trotter met him at the college campus the day of her disappearance but they both left separately. Witnesses said she left the library with him. The 2 had met 2 days earlier at a Lake Conroe marina.

Evidence showed Trotter was in Swearingen's trailer in Willis and in his pickup truck, where detectives found hair that had been forcibly pulled from her head. Another section of the pantyhose used to strangle Trotter was found in the trash outside Swearingen's trailer.

Cigarettes found in his home matched the brand the victim smoked. Swearingen said his now ex-wife smoked the same brand.

Cell phone records from the day Trotter vanished showed he was in the area where her body eventually was discovered.

Swearingen had a history of at least 2 accusations of rape plus an allegation of assault on an ex-wife, but charges never were brought against him. He had a previous conviction for burglary when he was 18, for which he spent 3 days in jail and 3 years on probation.

"I'm not a choir boy," he said. "Like everybody, I have skeletons in my closet. But being a knucklehead doesn't equate to being a killer."

2 years ago, a day before he was set to die, the Texas Court of Criminal Appeals halted the punishment after his lawyers said specific insects at the site where the body was found raised questions about the timing of Trotter's death. That appeal ultimately was rejected.

On Wednesday, Virgil Martinez, 40, is set to die for a 1996 shooting rampage that left 4 people dead, including his ex-girlfriend and her 3- and 6-year-old children. On Thursday, Ricardo Ortiz, 46, was scheduled for execution for fatally injecting a fellow inmate with heroin in 1999 at the El Paso County Jail to stop the victim from testifying against him in a robbery case.

Source: Houston Chronicle, January 27, 2009