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Magazine features

Lost on Death Row

Published in The Sun-Herald and The Age, on March 4, 2012.

In his twelve years on death row, Larry Swearingen’s execution date has been set three times. Three times he has known when he will be strapped to a stretcher and put down with drugs: sodium thiobarbital to anaesthetise him, pancurium bromide to paralyse his muscles and potassium chloride to stop his heart.

In January 2009, he had written his goodbyes and was on his way to the chamber when the stay of execution came through. “The way I had to look at it was ‘I’m just gonna lay down and go to sleep,’” he says. “I wasn’t gonna grovel. I wasn’t gonna sit there and cry. I can’t be remorseful for a crime I didn’t commit.”

Swearingen lives at the Allan B. Polunsky unit, an hour or so north of Houston. Together with another 292 men and 10 women awaiting execution for capital crimes committed in Texas, he is kept in solitary confinement. His cell is not quite four metres long and a little over two metres wide, with a slit above head height, more a vent than a window. He has a toilet, a typewriter, a radio and a hotplate. His one hour of daily recreation and exercise is spent alone, although he can talk and play chess, through gaps between the cells. Most of his companions are here because they have committed horrendous acts of violence.

After the security check, a touch more thorough than an airport pat-down, a public relations officer escorts me to the visiting area. A hand-painted notice in the antechamber reads Do The Right Thing.

Swearingen and I have a booth at the near end, equipped with old-fashioned telephone handsets. He is strikingly calm, his voice rarely rising, even as he complains about the injustice of being locked up for a murder that forensic science shows he cannot have committed. “It’s not easy being here,” he says. “There are men who are hanging themselves, men who are cutting themselves, men sitting in their own faeces, men slowly losing their minds. If people think it’s easy they are sadly mistaken.”

Swearingen is a born again Christian. He sometimes lapses into platitudes, about forgiveness and cherishing the simple things. I wonder whether this is an act, or a result of his prolonged isolation, with only his thoughts and prayers for company.

To supporters of the death penalty, the possibility of a fatal miscarriage of justice is negligible. Conservative Supreme Court Justice Antonin Scalia has asserted that there has not been “a single case – not one – in which it is clear that a person was executed for a crime that he did not commit.”

In Texas, doubts have been raised by the case of Todd Willingham, who was executed in 2004 after being found guilty of starting the fire that killed his three young children – a conviction secured with faulty forensic science, unreliable eyewitness reports, the word of a jailhouse informant and testimony from a psychiatrist who pronounced Willingham a “sociopath” without having met him. Several renowned arson investigators have since concluded that the fire almost certainly started accidentally.

Last year, Troy Davis was executed in Georgia, after a federal court upheld his conviction for shooting a police officer, Mark McPhail, even though no forensic evidence was presented at his trial and several of the eyewitnesses who testified against him changed their stories. The case provoked an international outcry, but is no more possible to prove Davis’s innocence than it is to be certain of his guilt.

Swearingen’s case is different, in that forensic science provides him with an alibi. He cannot have raped and murdered his supposed victim, because he was already in prison when she was killed. If his last appeals fail and he is executed, abolitionists will have the unequivocal miscarriage of justice they have been waiting for.

Melissa Trotter disappeared on December 8, 1998. Swearingen was one of the last people to see her alive, at Montgomery College. Three days later police picked him up on outstanding arrest warrants for minor offences, threw him in jail and began to build a case against him. In a missing persons report, distributed a week later, he was named as the only suspect.

Trotter’s body was discovered on January 2, 1999, in the Sam Houston National Forest, by hunters looking for a lost gun. At first glance, they thought it was a mannequin, dumped in the woods. She was wearing jeans, but her torso was naked. She had been strangled with one leg of a pair of tights. A search team, with cadaver dogs, had passed within twenty metres of the spot a fortnight earlier and found nothing.

Although there were signs of decomposition around Trotter’s head, her corpse was in remarkably good condition. At the autopsy, with the District Attorney and two of his Sheriffs in the room, Harris County’s Chief Medical Examiner, Dr Joye Carter, estimated that she had been dead for around 25 days, meaning she had been killed the day she went missing.

When Carter repeated this at the trial, the defence team let it pass unchallenged. Jurors heard that Swearingen had a history of violence towards women, that he had repeatedly lied to police, that he had fabricated a letter, from jail, full of details only the killer could know, in an attempt to confuse investigators. They heard that hairs forcibly removed from Trotter’s head were recovered from his truck and that the other leg of the pair of tights used to kill her was found in his house.

They were not told that the tights appeared during a fourth police visit to the property, after three prior searches had turned up no compelling evidence. Carter did not disclose that she had taken tissue samples from Trotter’s internal organs, which were intact. The DNA under her fingernails, belonging to somebody other than Swearingen, was dismissed as a contaminant – perhaps a drop of blood from a cut in a forensic technician’s hand. The jury took less than two hours to find Swearingen guilty.

The Chief Medical Examiner for Galveston County, Dr Stephen Pustilnik, has a Latin inscription taped over the door to his autopsy room: “Taceat colloquia, effugiat risus, hic locus est ubi mors gaudet succurrere vitae” – Let speaking cease, let laughter flee, at this place, death delights to comfort the living. Eleven years as a forensic pathologist in Texas have made him cynical about pressure from law enforcement to provide convenient autopsy results. “I’m the sort of person that loves to tell police and DAs that they’re wrong,” he says.

“For many days, where she was found, it was twenty degrees Celsius. If you’re at that temperature for three days, you’re green, bloated and stinky. Inside the body where the heat is held, the organs will decompose at a faster rate than the skin surface will. Her internal organs look beautiful.” At the morgue, Trotter’s body weighed 47.7kg. Alive, she had weighed less than two kilos more.

Judge Fred Edwards of the Ninth District Court of Montgomery County is conducting an evidentiary hearing, to determine whether Swearingen merits a retrial. Edwards, the original trial judge, has denied his appeal twice already. He is up for re-election later this year and boasts that he has never had a capital case overturned in his campaign flyers.

Last week, several of the most respected forensic pathologists in Texas testified for the defence. Joye Carter has been called by the prosecution, even though she signed an affidavit in 2007 revising the estimated time of death to two weeks before Trotter’s body was found, when confronted with evidence she collected herself, at autopsy.

The problem for Swearingen is that most of their conclusions have been heard and dismissed before. After a previous appeal, the findings of fact and law, signed by the Judge but written by the District Attorney, concluded that “inconsistencies” between the entomology (estimating time of death by studying insect larvae) and histology (a more accurate method, using tissue samples) meant that none of the science could be relied upon.

“The sum total of their case was that scientists disagree and the jury would have known by their own plain common sense that he was guilty,” says Lloyd White, Deputy Medical Examiner of Tarrant County, whose microscopic examination of tissue from Trotter’s heart and lungs concluded she had been dead for no more three days. “I can’t believe the Texas Attorney General’s office would put that in a document. A person walks in and the jury knows he’s guilty as hell, regardless of the evidence.”

During the appeals process, the burden of proof shifts to the defence. To win a retrial, Swearingen’s lawyer, James Rytting, must show that no reasonable jury would convict, based on clear and convincing evidence of his client’s innocence. “That is a system that is designed to fail,” he says. “It’s also designed to look as if it works because it supposedly gives you all these chances, but you do not have a chance in hell when you get down to the standards that you have to meet.”

Whatever Edwards rules, the Texas Court of Criminal Appeals will have the final say. The court, composed of nine elected judges, has only ordered three retrials of capital cases in the last decade – although it has commuted many sentences to life without parole. The Presiding Judge, Sharon Keller, is best known outside of Texas for denying a twenty minute extension to a defence lawyer whose computer malfunctioned as he filed an appeal. His client was executed that night.

Anthony Graves knows how hard it can be to have a wrongful conviction overturned. He spent eighteen years in prison, fourteen of them on death row, after being found guilty of murdering a grandmother, her daughter and four of her grandchildren. His execution date was set twice, but he never stopped protesting his innocence. “When you lose hope, you lose your mind,” he says, “because the reality sink in that you’re just gonna be here like an animal until you’re murdered.”

The TCCA repeatedly upheld his conviction, but after a federal court granted a retrial, new prosecutors admitted there was no evidence linking him to crime and set him free. Graves has been out for two years. He is trying to build a relationship with his three sons, who are now grown men. He cries when he thinks about calling his mother, the day he was released, but he has a broad grin and a determinedly upbeat manner. “I don’t have time for being angry and bitter,” he says.

His case illustrates how easily an innocent man can become trapped in a system that provides a political incentive for prosecutors to seek and judges to uphold death sentences. His conviction was based almost entirely on the word of the actual killer, Robert Carter, propped up by the lies of jailhouse informants and forensic guesswork, presented as fact, but because his original defence and first appeal were poorly handled, his appellate lawyers were severely constrained in the evidence that they could present.

Carter retracted his testimony to whoever would listen, in letters from jail and on his death bed – his last words before he was executed were: “It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court” – but the District Attorney successfully fought to have this ruled inadmissible. Only a prosecutorial slip, admitting that Carter had changed his story in a television news story about the case, saved Graves from being sent to his death.

“Innocent until proven guilty are words written on a piece of paper,” Graves says. “That’s not how our system functions. A prosecutor can attempt murder on a man’s life and get away with it.” Lloyd White offers an even more blunt assessment. “Constitutionally, you’re supposed to be innocent until proven guilty. In Texas, it’s the other way around. If you’re charged with something and you’re sitting there as an accused person, you’re guilty. If the defence isn’t all that sharp, you haven’t got a chance.”

Indigent defendants in Texas generally get a court-appointed lawyer for their trial and initial appeal. An investigation found that of the 131 people executed under former Governor George W. Bush, 43 were represented by attorneys who had been disbarred or suspended for unprofessional conduct. Texas has since passed the Fair Defence Act, in response to the notorious case of a lawyer who went to sleep at his client’s trial, but defence teams still often lack the experience and resources that they need.

Only certain types of murder qualify as capital crimes: when the victim is a child or a police officer, for instance, or when the killing is combined with another felony, such as rape or armed robbery. Hundreds of people are on death row for stick-ups gone wrong – crimes of poverty, addiction or desperation – one more reason that capital punishment disproportionately affects the poor. African-American and Hispanic defendants are also much more likely to receive a death sentence, particularly if their victim is white.

Since the turn of the millennium, more than fifty men have been freed from death row after having their convictions overturned. There are signs that this steady drip of exonerations is beginning to erode faith in the death penalty. Illinois abolished capital punishment last year. The Governor of Oregon, John Kitzhaber, halted a pending execution and declared that no more would occur during his tenure. Only eight people were sentenced to death last year in Texas, compared with 48 in 1999.

In the most recent Gallup poll about attitudes to the death penalty, 61% of respondents said they support capital punishment. When offered the alternative of sentencing criminals to life without parole, in a CNN survey, there was a more even split, 50% to 48% in favour of incarceration.

Graves argues that the death penalty with its drawn out appeals process constitutes “cruel and unusual punishment,” and thus violates the Eighth Amendment to the US Constitution. “From the seats that I sat in for eighteen years, seeing men going crazy, losing their minds, because they’re sitting in a cell with no windows, no television, no telephone, waiting to be executed. That’s torture. I’d rather you put your hands on me, because those wounds will heal,” he says.

Under the current Supreme Court, among the most conservative ever, a national moratorium remains a remote prospect. “I’m not an abolitionist, I’m a realist. And the reality is that we make mistakes,” says Graves. “And the cost is gonna be too high, because it’s gonna be a life.”

Swearingen is optimistic that he will be granted a reversal. But he also knows that there is a chance he will be executed and become a martyr to a cause that is not of his choosing. “I hope it saves people lives,” he says. “The more and more people that are released from prison, over DNA, people are starting to look at it now – would you want to sit on a jury and sentence a person to death, not knowing what evidence is being kept from you?”