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Larry Ray Swearingen

Samson

Penultimate Amazing
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Oct 13, 2013
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blood underneath the victim's fingernails

"In a brief to the court the same year, pathologist Glenn Larkin described how quickly the pancreas and spleen liquefy after death and estimated that Trotter had been dead for three or four days when her body was found." link

Besides Mr. Swearingen's alibi there is the blood. "Blood under Trotter’s fingernails did not match Swearingen’s DNA." There is a decent body of peer-reviewed literature on the forensics of fingernail DNA. Most people do not have DNA from others underneath their fingernails. This is not conjecture; it is fact. Although the association between a body fluid and a DNA sample cannot be assumed automatically, the presence of blood does increase its evidentiary value IMO.

With regards to items from Mr. Swearingen's residence, I also found this passage at the Dublin Review: "[TCCA Judge] Cochran referred to inferences in the prosecution’s case as though they were established facts: the Marlboro Lights and lighter found in Swearingen’s trailer were ‘Melissa’s cigarettes and lighter’, for instance, even though there was no proof that this was so."
 
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DNA from hair also

"Swearingen’s attorney, James Rytting, says the pair of panties were the prosecution’s supposed smoking gun. But the problem with the evidence was that the forensics team searched his trailer—and the trailer park—twice before Trotter’s body was discovered and the investigators found nothing. The dumpster where the panties were eventually found could have been emptied several times in the interim.

“This wasn’t just one cop,” he says. “It was a team of investigators. Then after they find her body they find the [other part of the panties]. It’s a recipe for planting evidence or a bloody invitation for the person who really killed this girl to set Larry up.”
Most compelling of all, DNA testing of pubic hairs found on Trotter’s vagina as well as blood under her fingernails showed that neither belonged to Swearingen. “They took evidence of a friendship and morphed it into murder,” he says." Texas Observer

This prompts me to wonder whether or not the DNA from the fingernails matched the pubic hairs.

From the Dublin Review article: "Forensic scientists testified that fibres from the carpet in his trailer were on her jacket and that hairs recovered from his truck not only ‘contained microscopic similarities to the victim’s head hair’ but also appeared to have been forcibly removed."

Microscopic similarity in hair comparison can be used in a similar manner to presumptive tests, meaning dissimilarity can rule out a match, but similarity is not a strong indicator of a match. Ordinarily mitochondrial testing can be done on hair as a kind of confirmatory test. In this instance autosomal DNA profiling might have been successful, in that forcibly removed hairs might have the roots present.
 
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the tights

"Sandy Musialowski, from the crime lab, testified that she had matched one leg of a pair of tights found in Swearingen’s trailer with another that was tied around Trotter’s neck. ‘I used the foam board and the straight pins, and I just looked to see the pattern and see how it fit together like a jigsaw puzzle to determine it was a unique physical match,’ she told the court. The defence let this pass unchallenged, and made little of the fact that this crucial piece of evidence was discovered by a police officer without a warrant, visiting the trailer on his own, after three prior searches of Swearingen’s trailer by the Sheriff’s Department, the Texas Rangers and the F.B.I. had failed to turn up the leg of the pair of tights." (from the Dublin Review link given in previous comments)

It may well be that the material of the tights (hose?) was the same, either if Mr. Swearingen were guilty or if this evidence were planted. However, my reading of the 2009 forensics report (A Path Forward) and the 2016 PCAST report makes me inclined to be skeptical of the match without more evidence. When one is aware of a preferred answer, one is subject to bias. This is a complex subject that is worthy of more than a casual comment.
 
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to the exclusion of all other pantyhose?

"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.”" link

Did Ms. Musialowski refer to forensic literature on pantyhose matching? Could she cite statistics on the significance of a match based on this literature? Page 6 of the PCAST report states, "The frequency with which a particular pattern or set of features will be observed in different samples, which is an essential element in drawing conclusions, is not a matter of “judgment.” It is an empirical matter for which only empirical evidence is relevant. Similarly, an expert’s expression of confidence based on personal professional experience or expressions of consensus among practitioners about the accuracy of their field is no substitute for error rates estimated from relevant studies. For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it."

More from the link given above: "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.’”"
 
the cigarettes

Bob001,

In another thread you wrote, "Finding the victim's belongings at the defendant's home without explanation is suspicious enough." From what I can gather Mr. Swearingen did not smoke. As far as I am aware, nothing individualized the cigarettes or lighter to the victim (fingerprints or DNA, for example). Were there other items you had in mind?
 
Yes, it comes down to "all the other evidence".
Dismantled brick by brick until Texas looks like a murderer.
 
Chris_Halkides said:
"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.”" link

Did Ms. Musialowski refer to forensic literature on pantyhose matching? Could she cite statistics on the significance of a match based on this literature? Page 6 of the PCAST report states, "The frequency with which a particular pattern or set of features will be observed in different samples, which is an essential element in drawing conclusions, is not a matter of “judgment.” It is an empirical matter for which only empirical evidence is relevant. Similarly, an expert’s expression of confidence based on personal professional experience or expressions of consensus among practitioners about the accuracy of their field is no substitute for error rates estimated from relevant studies. For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it."

More from the link given above: "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.’”"
Click to expand...

This is a common problem in forensic 'science'. Things happen that would not be acceptable in other areas of science. Lack of blinding or controls or standards. The 'scientist' knows the provenance of the material, they are employed by or paid by the police to find evidence to prove someone is a murderer. They are asked to match A to B. There is no objective score just a "professional' opinion, but the person is unlikely to be a professional pantyhose matcher. Ideally there would have been several other sets of pantyhose split apart in a similar manner and the scientist should have had to match blind. Clearly there are features like dernier, colour, style, material that can be definitely matched. Objectively thread counts from seams can map the separation point, even using very basic equipment you can pin the pantyhose legs to graph paper under standard tension and map the edge of the tear, and the location of seams, cut out the paper and see if they match up. There is a danger of measuring to match, this was seen in another case where the footprint of Sollecito was matched to less than 1mm with a standard footprint prepared in a different situation. Prior knowledge shows that variation in footprints under the same circumstance at the same time is 2 mm and at different times may be 5mm. The desire to 'get a result' to 'nail the suspect', overcomes objectivity. In science you would seek to disprove your hypothesis, and only accept it if you failed to disprove it.
 
Chris_Halkides said:
Bob001,

In another thread you wrote, "Finding the victim's belongings at the defendant's home without explanation is suspicious enough." From what I can gather Mr. Swearingen did not smoke. As far as I am aware, nothing individualized the cigarettes or lighter to the victim (fingerprints or DNA, for example). Were there other items you had in mind?
Click to expand...

Her brand of cigarettes was what I was thinking about. His defenders seem to think it could have been planted.
 
Planigale said:
This is a common problem in forensic 'science'. Things happen that would not be acceptable in other areas of science. Lack of blinding or controls or standards. The 'scientist' knows the provenance of the material, they are employed by or paid by the police to find evidence to prove someone is a murderer.
.....
Click to expand...

I just note that the people testifying in these matters usually are not actually scientists. They are state lab employees paid to support convictions. In the case you cite, it was a technician who claimed that the scraps matched, and an actual scientist who said they didn't. In the Willingham case, local fire dept. investigators sent him to his death, and it was actual university scientists who cast doubt on their claims. There was a scandal a few years ago when an FBI lab claimed to be identifying hair "matches" that were actually unproven. More science would probably be better. The real problem is that defense attorneys are not using scientific standards to challenge "expert" testimony as aggressively as they could or should, and allowing it to be presented to juries as settled "scence" when it isn't.
 
DNA from a cigarette butt

"DNA collected from a cigarette butt found in Swearingen’s trailer that prosecutors claimed belonged to Trotter excluded her as the donor." The Intercept.

I am not sure, but I think that the brand was Marlboro lights.
 
Maybe someone else smoked the same brand of cigarette

For argument's sake, let us assume for a moment that Mr. Swearingen were innocent. Either the actual murderer or the police might have planted evidence against him. But another possibility is that the cigarettes are a red herring, not smoked by either the victim Ms. Trotter or Mr. Swearingen. The DNA is suggestive of this possibility.

In addition to the problems with the inculpatory evidence noted above and elsewhere in the thread, is the existence of exculpatory evidence. One, the blood beneath the victim's fingernails is not Mr. Swearingen. Two, the DNA from a pubic hair did not match, either. Three, Mr. Swearingen was probably in jail at the time of Ms. Trotter's death. Estimating the length of time since death is not an area in which I have a specialist's knowledge. However, I find the arguments concerning the liquification of internal organs (see a previous comment) and animal predation to be persuasive.

"The defence has questioned how Trotter’s corpse can have been left so intact after almost four weeks of exposure in the forest, during a mild winter, in an area where there are carnivorous feral hogs, coyotes, vultures and eagles, in addition to rodents and insects. Dawn Carrie, a ranger at the forest, told me that the wild pigs ‘eat pretty much anything that’s not nailed down’." link
 
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Who made the calls?

"Hilder and Rytting also developed evidence that Trotter had received life-threatening telephone calls that caused her to break down in tears. Her co-workers—she had a telemarketing job in addition to college—reported the threats to police, who determined that the threats could not have come from Swearingen. That information was not disclosed to Swearingen’s trial counsel." Injustice Watch.
 
Chris_Halkides said:
"Hilder and Rytting also developed evidence that Trotter had received life-threatening telephone calls that caused her to break down in tears. Her co-workers—she had a telemarketing job in addition to college—reported the threats to police, who determined that the threats could not have come from Swearingen. That information was not disclosed to Swearingen’s trial counsel." Injustice Watch.
Click to expand...



I want to post, even though I haven't researched this case at all. But my point - I think - is still valid even despite that. And my point is:

Were some/all of these issues raised during Swearingen's appeal(s)? And if so, what were the reasonings for the courts to - it would appear - brush them aside in favour of affirming the conviction and sentence?
 
TCCA and AEDPA

London John,

I don't know all of the details, but some of the issues were raised. However, the Texas Court of Criminal Appeals (TCCA) has a longstanding reputation for being particularly unfriendly to criminal defendants. I put a link for a 2004 article in another thread about this court. In addition the AEDPA (mid 1990s legislation) has made it more difficult to obtain relief at the federal level, to the best of my understanding. In 2015 the New Yorker magazine had a long story on AEDPA.
 
Chris_Halkides said:
For argument's sake, let us assume for a moment that Mr. Swearingen were innocent. Either the actual murderer or the police might have planted evidence against him. But another possibility is that the cigarettes are a red herring, not smoked by either the victim Ms. Trotter or Mr. Swearingen. The DNA is suggestive of this possibility.

In addition to the problems with the inculpatory evidence noted above and elsewhere in the thread, is the existence of exculpatory evidence. One, the blood beneath the victim's fingernails is not Mr. Swearingen. Two, the DNA from a pubic hair did not match, either. Three, Mr. Swearingen was probably in jail at the time of Ms. Trotter's death. Estimating the length of time since death is not an area in which I have a specialist's knowledge. However, I find the arguments concerning the liquification of internal organs (see a previous comment) and animal predation to be persuasive.

"The defence has questioned how Trotter’s corpse can have been left so intact after almost four weeks of exposure in the forest, during a mild winter, in an area where there are carnivorous feral hogs, coyotes, vultures and eagles, in addition to rodents and insects. Dawn Carrie, a ranger at the forest, told me that the wild pigs ‘eat pretty much anything that’s not nailed down’." link
Click to expand...


I saw a reference somewhere to a technician testifying that because the blood under the fingernails was bright red, it must be the result of contamination after the murder. I assume that this is based on the prosecution theory of when the murder took place. But could the condition of the blood actually be further evidence that the murder occurred more recently than the prosecution claimed (supporting Swearingen's alibi)?

I'm not familiar with the case. If the blood was argued to be the result of contamination, surely it would have been checked against anyone the prosecution suggested as a potential source?
 
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bright red flakes

"Rytting said the pantyhose matching is an example of “quackery,” and said the pieces did not match at first but were “pushed and pulled” until they did. Blackburn emphasized though that Mills’ letter didn’t contradict the original testimony, and said the two pieces of fabric were an easy match." Texas Tribune.

"A second letter from Mills, however, stated a DPS witness should have given a “more appropriate answer” regarding blood flecks found on Trotter’s fingernails after they were submitted to the agency. The lab analyst at trial [Cassie Carridine?] said the blood, which Blackburn said amounted to a the size of a pinpoint, possibly came from contamination in the lab — not the crime scene. She said this was because the brighter color and composition of the blood indicated it was from after her death." Texas Tribune

"[Lab Director Brady] 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." Death Penalty Info

"Blood flakes were found under Trotter’s fingernails, enough to develop a full DNA profile, which was determined to be from a man — but not Swearingen. But a Texas lab technician testified at trial that the blood came from contamination in the lab, not a possible killer. Earlier this month, the Texas Department of Public Safety issued a second letter saying the technician had no evidence of contamination or knowledge of how that would have happened." WaPo

Pathologist Joy E. Carter, M.D., apparently supported Ms. Carradine. See pp. 20-23 of this link, which is from the respondent (The State of Texas IIUC).

It has been said that dried flakes are a greater contamination hazard than wet blood. Yet wouldn't a laboratory have air handling designed to minimize this possibility? I don't know of any good citations on the idea of dating the blood from the color, but I am highly skeptical (it is subjective at best, and it has no support from the forensic literature of which I am aware). A good DNA lab has a staff elimination file to check for laboratory personnel.

EDT
I have long been troubled by this case. Yet until having examined it a little more carefully as part of this thread, I did not realize how slipshod the forensic analyses were.
 
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