Killer in Chief

Photo by Stephanie Megan via Flickr

What would a President Perry do with the Department of Justice?

Gov. Rick Perry is a happy executioner, having presided over 230 executions in Texas. That’s more, reported The Texas Tribune, “than any other modern governor of any state.”

Perry’s energetic support of capital punishment and his blind refusal to consider any mitigating evidence in the cases of death row inmates, no matter how scientific, shows what a danger he would be if placed in charge of the federal government’s huge law enforcement system.

President Perry would have control of the Justice Department, which can reach into almost every aspect of our lives.

He would appoint justices to the Supreme Court and other federal courts. In addition, the federal government has great influence over state courts and law enforcement, both indirectly and through grants and frequent state-federal cooperation in criminal investigations. Federal power reaches down to the cop on the beat.

Perry’s presidential campaign is occurring amid changing attitudes toward the death penalty. These have not influenced him or, apparently, his state.

“Almost all recent executions have been in one region of the country—the south—and most of those in one state—Texas,” the Death Penalty Information Center reported in its 2009 report “Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis.”

The center polled 500 randomly selected police chiefs around the country and found few who believed the death penalty was a deterrent to crime. Instead, they cited a shortage of resources and the effects of drugs and alcohol as factors that made law enforcement harder.

Insufficient use of the death penalty was at the bottom of the list. 

Scientific Argument

Another telling argument against the death penalty is scientific: the number of inmates—alleged murderers and others—who have been exonerated through DNA testing. A 2010 report by the Innocence Project, famed for freeing the falsely accused, said 250 convicts have been exonerated through DNA testing and they “are the tip of the iceberg.”

Perry has been unmoved by the importance of scientific evidence. Rather, he seems to reflect the approach U.S. Supreme Court Justice Antonin Scalia took in a 2005 opinion, that there was not “a single case—not one—in which it is clear that a person was executed for a crime he did not commit.”

Perry has commuted the death sentences of 31 inmates, but 28 of them were juveniles at the time of their crimes, and the U.S. Supreme Court had ruled states could not execute those who were under 18 when the crime occurred.

‘Grudging’ Commutation

The Texas Tribune said Perry lifted the sentences “grudgingly” and quoted him as saying, “While these individuals were convicted by juries of brutal murders and sentenced to die for their heinous crimes, I have no choice but to commute these sentences to life in prison.”

The other two cases involved mentally retarded convicts, also excluded from execution by the Supreme Court.

The case that sheds the most light on Perry’s attitude is that of Cameron Todd Willingham, executed in 2004 after being convicted of setting a house fire that killed his three small daughters.

As reported in extensive detail by the Chicago Tribune in 2004 and The New Yorker in 2009 , arson experts from around the country, plus the newspaper’s reporting, found that the investigation was badly flawed.

Well-respected arson experts said the fire might well have been an accident. The conclusion was backed up by a report from four fire scientists for the Innocence Project. Perry, The Texas Tribune said, dismissed such findings and called Willingham a guilty “monster.”

A state agency, the Texas Forensic Science Commission, began an investigation of the scientific criticisms.

Shortly before a scientist—one of the critics—was about to testify, Perry told three commission members they would not be reappointed and he replaced the chairman with one of his allies, a hard-line pro-death-penalty district attorney.

The commission moved away from an investigation of the Willingham case. This was in 2009, a year before Perry’s re-election campaign when the Willingham case was becoming the subject of greater scrutiny in criminal justice circles in Texas and around the country.

This is just one case, but a revealing one, involving all aspects of the Texas criminal justice system over which Rick Perry presided.

Whether Texas had executed an innocent man seemed to mean little to him.

No part of government is more important to individual rights than the criminal justice system and its components, courts and cops.

Giving Perry control of them would be a real threat to democracy.

Bill Boyarsky, a former City Editor of  The Los Angeles Times and a lecturer at the USC Annenberg School for Communication, is a political correspondent for Truthdig.  He was a 2011 Reporting Fellow at the Center on Media, Crime and Justice/Public Welfare Foundation Symposium on the California Three Strikes Law. Thiscolumn was originally published on Truthdig  (www.truthdig.com)" 

Why won't he grow a pair?!

Obama’s Black Backlash

Aug 19, 2011 9:07 PM EDT

Exasperated with the first African-American president, the Congressional Black Caucus says it’s time to emulate the Tea Party. Patricia Murphy on its vow to adopt get-tough tactics.

With a stinging budget defeat behind them and unemployment in the black community soaring to 16 percent, members of the Congressional Black Caucus say they’re done waiting for Barack Obama to fight their battles for them.

Instead, the 43 African-American lawmakers say they’re taking matters into their own hands and will carry the fight to Tea Party Republicans, whom they blame for Obama’s latest lurch to the right.

“The Tea Party discovered something. That is if they organize,, if they talk loud enough, if they threaten, if they register to vote and elect a few people, they can take over the Congress of the United States,” saidRep. Maxine Waters. “They called our bluff and we blinked. We should have made them walk the plank.”

Waters was speaking in Atlanta, a stop on the CBC’s five-city job fair and town-hall tour now making its way across the country. On the same day Obama left Washington for a 10-day Martha’s Vineyard vacation, eight caucus members hosted a crowd of nearly 5,000 out-of-work Georgians who had flocked to event for the rare chance to meet recruiters from companies that can actually hire them.

Democratic Rep. Maxine Waters considers the summer of 2011 "a defining moment" and says the Tea Party "called our bluff and we blinked.", Pablo Martinez Monsivais / AP Photo

The scene outside the event told the story of the black community, whose jobless rate is more than 50 percent above the national average and spikes as high as 39.2 percent for young African-Americans.

Dressed in dark suits, knotted ties, and shined leather shoes, men and women stood for up to five hours in a line that stretched four and five people deep as it snaked and switched back across the Atlanta Technical College campus. Some held umbrellas against the Georgia sun, while most fanned themselves with a few fresh resumes. Once inside, they could visit booths set up by prospective employers, smile, shake hands, and hope to make an impression. At least, many said, it was something to do.

“The people want us to fight. They want us to stand up,” Waters said. “We are going to be insistent that what comes out in September is going to reflect the experiences that we have had.”

At the town-hall meeting that followed the fair, Waters and other CBC members told 200 or so attendees that everyone, from members of Congress to folks in the seats, needed to start doing more or suffer the consequences at the hands of Tea Party–aligned Republicans back in Washington.

Waters called the summer of 2011 a “defining moment” for her and the African-American community, especially as Capitol Hill’s new supercommittee gears up to slash federal spending further this fall.

“The people want us to fight. They want us to stand up,” Waters said. “We are going to be insistent that what comes out in September is going to reflect the experiences that we have had.”

Looking back on the summer, several CBC members acknowledged that the freshman class of Tea Party Republicans had out-hustled, out-shouted, and out-organized them as the Aug. 2 default deadline neared. In the end, President Obama chose between allowing the country to go into default and signing onto a deal with deep cuts to domestic spending but no tax increases, despite liberal insistence that more revenues were needed.

“It was the Tea Party and the radical right, the right of the right, that hijacked the Republican Party,” said Rep. John Lewis, a veteran of the civil-rights movement. “They wanted to destroy this president. They made a decision to make him a one-termer, and that’s what it was all about.”

Lewis joined two thirds of the black caucus in voting against the budget deal, warning that the trigger mechanism in the bill will gut Medicare and Medicaid if the evenly divided supercommittee deadlocks and automatic spending cuts kick in.

Rep. Cedric Richmond, one of a handful of freshman Democrats elected in 2010, said he voted for the deal to avoid a national default. “I didn’t want to vote for it, but I didn’t want to take castor oil when I was sick either,” he said.

In an interview with The Daily Beast, Richmond called the House GOP and Tea Party members in particular “sinful” for holding the American economy over a barrel to get the spending cuts they wanted.

“They won because they are organized, they are monolithic, and they are willing, I think, to obstruct the success of the country to win the next election,” he said. “That is what I find to be sinful, with so many people unemployed.”

Although Richmond, Waters, and Rep. Al Green said they want to see Obama reelected, it was impossible not to feel the distance between the legislators, who spent the day among thousands of mostly African-American men and women looking for jobs, and the first black president, who has done little publicly to embrace that role and has failed, so far, to lift their community out of pervasive unemployment and poverty.

That job, the congressmen told the town-hall meeting, would remain theirs alone for now.

“During another period in history, we didn’t wait for the president to act, or wait for members of Congress to act,” Lewis reminded the crowd. “We didn’t have a website. We never heard of the Internet. We didn’t have Facebook. We didn’t have an iPad, we didn’t even have a damn fax machine. But we used what we had and you’ve got to use what you have.”

One by one, caucus members told the audience that they essentially need to start a Tea Party movement of their own. As veterans of marches, sits-in, and jail cells during civil-rights protests a half century ago, they know that in Washington, the people who demand attention usually get it, and in 2011, that wasn’t the black community.

“Our problem is we’re too quiet, too darn quiet,” Lewis said. “We have to find a way to get in the way.”

Waters picked up on the theme: “Do not be afraid to speak up! It is honorable to step up to the plate. It is honorable to do what needs to be done.”

For their part, the members allowed that they might have been able to do more to stand out in the budget debate earlier this year. But their days of silence, they said, are over.

Rev. Albert E. Love, who attended the town hall meeting, sees the same frustration expressed by the visiting lawmakers across the black community.

“That’s sort of a microcosm throughout the country,” Love said. “People are scared. People are frustrated. People don’t know what to do.”

The Science of Injustice

Capital murder case highlights Texas courts' resistance to physical evidence

BY JORDAN SMITH, FRI., AUG. 19, 2011

Larry Swearingen

On Jan. 2, 1999, Daniel Raglind was searching a section of the Sam Houston National Forest with his son Todd and several others when he found the body.

The group had been looking for a pistol and a rifle that Todd had misplaced in this section of the forest, hugging the shore of Lake Conroe outside the East Texas town of Willis. Todd had been hunting several days earlier and had become disoriented; he spent the night in the forest, and when he awoke the next morning, he couldn't find his guns, Raglind told a jury in 2000. It was the second day in a row that Raglind and his son had come to this area to look for the missing weapons.

Walking through the woods that Saturday, Raglind made a grisly discovery. In a clearing not far from where a deer had recently been cleaned, there was a human body. "At first, I thought it was a mannequin," Raglind told then-Montgomery County prosecutor Michael Tiffin. "I don't know why that crossed my mind, but I mean ... you're not expecting to see a body," he testified. "I walked up to it ... I touched it. One foot had a shoe off, still it had the sock on. It felt like flesh to me."

It was indeed a body, that of 19-year-old Melissa Trotter, a Montgomery College student who had been missing since Dec. 8, 1998. That day, during finals week, she had been seen around the college by a number of people: She attended a science class review session, went to the cafeteria, and did some studying and other work on a school computer in the college library. Then she was gone. In fact, the section of woods where she was ultimately found had been searched by police several times before Raglind came along.

Although they had not yet found her body, police investigating her disappearance were fairly certain that Trotter was dead, and they believed they knew who was responsible: Larry Swearingen, a 27-year-old local electrician, married with two young children and a history of getting himself in trouble with the law. Swearingen had been seen talking with Trotter at the college the day she disappeared. The state maintains he was the last to see her alive.

Three days after Trotter disappeared, police arrested Swearingen on outstanding warrants. He's been behind bars ever since. After Trot­ter's body was found, he was charged with capital murder. The state charged that Swear­in­gen kidnapped her from the college, raped her, and tied a single panty hose leg around her neck, strangling her before dumping her body in the national forest. There was no direct evidence – no DNA, for example – linking Swear­ingen to the crime, and there was no certain evidence that Trotter had been the victim of sexual assault.

But there was a good deal of circumstantial evidence linking Swearingen to the disappearance and death. He had been seen with her at the school the day she disappeared, several hairs matching Trotter were found in Swear­ingen's pickup truck (although he did not dispute that they were friends), and, most damning, during their third search of Swear­in­gen's home, police said they were given a leg of panty hose that Swearingen's landlord had found while cleaning up Swearingen's rented trailer. A Department of Public Safety analyst later said it was a positive match to the leg found tied around Trotter's neck.

Time of Death

Swearingen maintains his innocence, but he was tried and convicted in the summer of 2000; after less than two hours of jury deliberation, he was sentenced to death. Since 2007, he's been scheduled for execution three times but has avoided lethal injection thanks to court-imposed stays – including one late last month granted by the state's highest criminal court, the Austin-based Court of Criminal Appeals, which sent the case back to district court for further review. At issue is the forensic science of death and decomposition. More than a decade after Trotter's death, a growing number of scientists – including pathologists, forensic anthropologists, and entomologists – agree that Swearingen could not have been responsible for Trotter's death.

Specifically at issue is histological evidence (analysis of cell tissue) that nearly a half-dozen doctors have reviewed and that they say shows conclusively that Trotter had not been dead for 25 days at the time she was found in January 1999. Samples of cardiac, lung, and vascular tissues harvested from Trotter at autopsy, saved in a paraffin block and finally recovered from the Harris County Medical Examiner's Office by Swearingen's attorney in 2009, show tissue that is hardly decomposed at all and is most consistent with a person who has been dead less than a week.

If Trotter was dead less than a week when her body was discovered, Swearingen was in jail when she died and could not have killed her.

Melissa Trotter

"[I]t is categorically impossible, beyond all reasonable doubt, that Ms. Trotter was killed and her body left at that location by ... Swear­ingen, who had been incarcerated ... 23 days before the body was found," Dr. Lloyd White, deputy medical examiner in Tarrant County, wrote in a June 2011 report detailing his most recent examination of the tissue samples.

Yet despite what appears to be clear and convincing medical evidence that Swearingen could not have killed Trotter, neither prosecutors nor the courts have been persuaded that he could be innocent. Swear­ingen's defense has been trying for four years to demonstrate to the courts – the trial court and the CCA as well as federal courts – the import of the new scientific findings. While the CCA has remanded the case to the trial court twice for further hearings, they've ultimately sided with prosecutors, ruling that the forensic evidence isn't convincing enough to outweigh what CCA Judge Cathy Cochran wrote in January 2009 is a "mountain" of circumstantial evidence pointing to Swearingen's guilt.

The case renews questions about the intersection of and tension between science and law – how courts and law enforcement professionals view and understand science, and how decisions are made about what kind of science is "good enough" to be deemed more telling or important than other compelling but decidedly nonscientific evidence. "When you have objective forensic evidence and testimonial evidence – which is subjective – [that testimonial evidence] must be questioned and take a backseat to the objective science," says Dr. Stephen Pustilnik, the chief medical examiner for Galveston County, who after reviewing the Trotter tissue samples also concluded that Trotter was killed within days of being found in the forest, not in early December, and therefore not by Swearingen. "It's not the convenient scenario, not the easy scenario" for the state, he says. "Just because [Swearingen] is the easy and convenient person, all of a sudden, if the science says he didn't do it, doesn't mean that you can ignore the science."

Contradictory Evidence

Swearingen saw Trotter at least twice in the days just before she disappeared. On Dec. 6, 1998, he ran into her outside the North Shore Mari­na, a gas station and store on Lake Con­roe, where they talked while standing by their cars in the parking lot. Two days later, he saw her again, around lunch time, at Montgomery College. Swearingen had gone to the school that day to talk with a friend, a campus cop – he had promised to attach a new set of lights to her truck. He ran into Trotter there, working at a computer in the college library and study area. Swearingen explained these two encounters as innocent – they talked about family members (Swearingen's younger sister had gone to school with Trotter, and Trotter wanted to reconnect with the girl, he said) and other mundane topics, he testified in court.

Yet at trial Swearingen was his own worst enemy. He ignored the strong advice of his attorneys and took the stand in his own defense, delivering a rambling and contradictory narrative to explain his relationship with Trotter, whom he maintains was merely an acquaintance. In so doing, he opened himself up to a lengthy cross-examination, during which prosecutor Tiffin was able to point out that Swearingen had lied to police on numerous occasions about his interactions with Trotter before she went missing.

He also could not explain the panty hose found at his home several weeks after he was arrested, nor could he explain why some of Trotter's school paperwork was found, nine days after her disappearance, ripped into pieces and scattered on the street near his parents' home. While in jail, Swearingen asked a friend to provide him with an alibi, and in another incident he wrote a letter – in Spanish, composed using a dictionary – that he tried to pass off as coming from a mystery woman who could exonerate him. Equally confounding, he testified that on two occasions prior to Trotter's disappearance, he saw her with a mystery man – but could not explain why he had never told police. In short, Swearingen did a host of things that painted him as suspicious.

Prosecutors elicited testimony from friends and acquaintances who said that Swearingen had planned to meet Trotter on Dec. 8, 1998, just before she disappeared. However, witnesses at the college – including one of Trotter's professors and a student working in the cafeteria – ultimately put Trotter at the school either after Swearingen left or with someone who did not look like Swearingen. In other words, the witness testimony putting Swearingen and Trot­ter together at the college was tenuous and contradictory. But to the prosecution, it still seemed far more cohesive than did Swearingen's muddled testimony. "As a matter of fact, when you stop and you look at all the evidence here ... you're going to see one thing. All roads lead to Larry Swearingen," Tiffin said during closing arguments.

Significantly, also supporting the state's case was the opinion and testimony of then-chief medical examiner for Harris County Joye Carter, who performed Trotter's autopsy on Jan. 3, 1999, the day after the body was discovered. According to Carter, "based on the appearance" of Trotter's body, she "arrived at the opinion of the body being dead for approximately 25 days or so," which dovetailed perfectly with the state's theory of the case. Partially, she arrived at that conclusion after finding "fungal organisms" that she said were growing on the body. These types of organisms are often found on bodies that have been out in an "environment where it's dark and dank and wet, and usually [when] several weeks' time have elapsed," she testified.

"Does that allow you to determine a time of death or assist you in determining a time of death?" the prosecutor asked.

"It does assist us in engaging a time of death."

Incontrovertible Evidence

Although there was other unexplained evidence found on the body – importantly, male DNA found in fingernail scrapings that does not match Swearingen and has never been identified – the Montgomery County District Attorney's Office is still convinced that its handling of the case, and the science involved, remains solid. It's "one of the strongest cases I've seen," says veteran prosecutor William Delmore III. He's not convinced that the original prosecution of Swearingen is in any way flawed. The unexplained DNA evidence is "a little weird," he admits, but the evidence pointing to Swear­in­gen's guilt, he says emphatically, "is just overwhelming."

Melissa Trotter's body was found in a section of Sam Houston National Forest near Lake Conroe.

Many scientists, however, now say that conclusion is simply inaccurate.

The tide of medical opinion began to change in 2007, after Swearingen's January execution was stayed in order to consider whether evidence of bug activity found on Trotter's body that did not begin until mid-December meant that she had not been left in the forest on Dec. 8, 1998, as the state contended. After reviewing the basic pathology work done by Carter, Tarrant County's White and North Carolina pathologist G.M. Larkin concluded that Carter's autopsy results were actually inconsistent with Trotter having been dead for more than about 10 days before she was found – more than two weeks after Swearingen was arrested. Along with Carter's work, the doctors reviewed crime scene photos and temperature data from the National Oceanic and Atmospheric Administration for December 1998. "All pathological diagnoses are based on the fact that changes in death are predictable, cumulative and irreversible," Larkin wrote in his 2007 findings. "[U]ndisputed forensic evidence, namely, the external appearances and the description of the internal organs and tissues, and photographs of resected organs strongly support a date as late as December 30, 1998," for Trotter to have been deposited in the forest. Importantly, in her original autopsy report, Carter noted that Trotter's internal organs were fairly well intact: Carter was able to remove, section, and weigh each of them, including the brain.

Simply put, doctors who have reviewed the case say that had Trotter's body been left outside in the forest for some three weeks before being found, there would be little, if anything, left of her internal organs. "It is plain and simple and should be obvious to anybody," White told the Chronicle last month. "The body [could not have] been lying out there exposed on the ground for that period of time with the temperatures recorded by NOAA. [Her organs] would have liquefied to the point that the structures were not even visible. Or [the body] would have dried up and appeared [as] unrecognizable mummified material."

In fact, Carter has since retracted her trial testimony, signing an affidavit to that effect in October 2007. Carter wrote at that time that she was never asked at trial to "address the significance of my internal examination of Ms. Trotter's body," and that as Larkin and White initially noted, her descriptions of the internal state of Trotter's body "support a forensic opinion that the body had not been exposed more than two weeks in the forest environment." Moreover, she wrote that the fact that Trotter's body weighed on the autopsy table just four pounds less than she had weighed at a doctor's appointment two weeks before she disappeared would be inconsistent with her being left outside to decompose for nearly three weeks. (Why Carter did not make this connection at the time she performed the autopsy remains unclear; Carter did not return repeated phone calls from the Chronicle seeking clarification.)

The court remained unimpressed. In the end, trial Judge Fred Edwards concluded after a summer 2007 hearing (before receiving Carter's affidavit) that the science offered by Swearingen's defense was not compelling enough to outweigh the other circumstantial evidence. The CCA agreed, and Swear­in­gen was set back on track toward execution.

But in the subsequent years, questions about the scientific evidence have only grown stronger. In 2009, Swearingen's appellate attorney James Rytting was able to access, for the first time, tissue samples that were taken from Trotter's body at autopsy but never previously examined – a circumstance White says he finds strange at best. Those tissues, doctors now say, not only confirm their initial questioning of Carter's autopsy, but have actually prompted them to further shorten their estimate of the time that Trotter was dead. Microscopic examinations of body tissues done in 2009 and then again in June this year show that she was likely dead just two or three days before her body was found. Put bluntly, "the way biological tissue reacts [during decomposition], there's no doubt about it. Period. End of story," says Gal­ves­ton County Chief Medical Examiner Stephen Pustilnik, one of the doctors who has reviewed the work done by the state in the Trotter case and who has viewed the microscopic tissue evidence that wasn't turned over to the defense until 2009. With her tissues "looking as good as they do," Pustilnik concluded, "it's incontrovertible."

Indeed, after observing the tissue samples with a high-powered microscope this summer at the University of North Texas, White and his Tarrant County colleague Dr. Gary Sisler wrote in a report that they were able to see clearly the intact cellular structures of Trotter's body – including in her lungs and heart, basic structures that degrade quickly after death. The environment in the forest in December 1998 fluctuated widely in temperature, the doctors noted, so that it would be impossible to find a body left outside for nearly a month to be preserved as well as was Trotter's.

"Even when stored at the routine morgue cooler temperature of 40 degrees, bodies will decompose after only a few days to a degree much greater than that seen in these specimens," White and Sisler wrote in a June 20 report. "Any reasonable person can easily compre­hend what would happen to a piece of meat if it were periodically removed from an ordinary kitchen refrigerator, usually kept at 40 degrees, and left outside on the ground in 70 degree weather for three weeks. In decomposing tissue ... nuclei themselves disappear entirely, along with all other details, leaving only ghosted outlines of normal architecture," they continued. "No decompositional changes of this sort are present in the autopsy slides from Melissa Trotter," they wrote. "It isn't possible that ... Trotter was killed and her body left at that location by ... Swearingen, who had been in jail for 23 days when the body was found."

That, they wrote, was certain "beyond a reasonable doubt."

Pustilnik makes the same argument, saying that it is simply impossible that Trotter was dead for as long as the state has claimed. "The way the heart looks microscopically, she was either dead a couple of days or someone left her in the refrigerator for 25 days" at a temperature much lower than the standard 40 degrees, a freezing that somehow left no visible signs on her tissue, "and [if that's the case] you're looking at a monumental conspiracy."

Comically Flawed

Frankly, says Montgomery County Assistant D.A. Delmore, "I don't know anything about the science" at play in the Swearingen case. "The science is mystifying to me," he says, but he's "concerned that perhaps there is more being made of it than we should actually give it credit for." Delmore and elected District Attorney Brett Ligon inherited the Swearingen case in 2009, and so they had no "particular stake in it, and we tried to keep an open mind about it" while reviewing the case history and recent appeals filed by Rytting. As part of that review, Delmore said, he called a forensic anthropologist who told him that a pathologist – like Carter, Pustilnik, White, Sisler, and Larkin – would not be the best person to weigh in on time of death; that would be better determined, he said the office was told, by a forensic entomologist.

That's the route the office used during the 2007 evidentiary hearing, hiring Neal Haskell, a forensic entomologist and professor at Saint Joseph's College in Indiana, who has also become something of a celebrity bug man – he's one of the inspirations for the television show CSI, a biography posted to Saint Joseph's website notes, and he most recently caught national attention as a prosecution witness in the Casey Anthony trial. "I'm more inclined to believe that the one person looking at" bug evidence is correct about the "postmortem interval," Delmore concluded.

That, says Pustilnik, is preposterous, most particularly in this case, because the bug evidence was improperly collected and preserved. For example, there were deer carcasses found near the body, which could have contaminated the bug evidence found in or on Trotter's body and limited the usefulness of that evidence. (Indeed, although the state says Trotter's body was there since Dec. 8, 1998, no one noticed it until Raglind came along – even though there was evidence that others, including hunters, had been nearby.) The bug evidence, concludes Pustilnik, is "so flawed as to be comical." Among the evidence collected were "antagonist" species, including wasps, but none indicative of the "fauna that eats tissue." Moreover, Pustilnik points out that although the body was found in December, allegedly undisturbed for nearly a month, there was no leaf detritus found on top of it but "four inches of leaves under the body," he says. "That's not reasonable; that's ridiculous."

Delmore says his office remains confident in the expert opinions it has received, which confirm to him that Trotter died and had been in the woods since her disappearance in early December. Delmore maintains that the bulk of the evidence – the witness sightings of Swearingen and Trotter together at the college, the discovery of the panty hose leg at Swearingen's trailer, Trotter's school paperwork "floating on the breeze" near Swearingen's parents' house, and the various lies that Swearingen offered after Trotter's disappearance – are simply too compelling to disregard in favor of histological evidence.

The Evidence Speaks?

Delmore and the Montgomery County D.A.'s Office appear to stand firmly with the Court of Criminal Appeals, or at least with Judge Cathy Cochran, who in a 2009 opinion wrote that the science could not explain the circumstances lending weight to Swearingen's guilt. "The hallmark of a scientifically sound hypothesis is that it is consistent with, and accounts for, the totality of the known facts," Cochran wrote. "If Melissa did not die until December 29th, where was she and what was she doing from her disappearance ... until 21 days later?" she continued. "When all of the other known facts and evidence are wholly inconsistent with a particular scientific hypothesis, the reasonably objective scientist revisits that original hypothesis, looking for a flaw. Although one does not doubt the honesty and sincerity of these medical examiners, their theory that Melissa did not die until December 29th or 30th because of the relatively intact state of some of her internal organs is flatly contradicted by an incredible wealth of other evidence. They have made no attempt to account for or explain this other evidence or provide an alternate hypothesis."

Cochran's opinion was delivered in January 2009, long before the pathologists had the opportunity to observe Trotter's preserved tissues. Nonetheless, Cochran's incredulity at the notion that the science of the small could replace the mass of the circumstantial isn't completely surprising, and it highlights a growing tension between science and the law. The problem in the Swearingen case, suggests Jordan Steiker, law professor and co-director of the University of Texas School of Law's Capital Punishment Center, is that "it's the science in tension with any plausible story." The problem, he says, "is dissonance between the science and any plausible conjecture about where [Trotter] was for three weeks." Ultimately, in criminal law, science often has to overcome deep-seated intuitions about how things happen: "It seems much more plausible, intuitively, that he was one of the last people seen with her" and that when she disappears that she is killed and that he is a good suspect for that killing – rather than that she simply disappears, no one hears from her, then she is killed and dumped some time later. "There's this deep intuition that when someone disappears and they're not heard from, that they're not out there," he says. "That's the hard thing that the science is running up against."

That does not mean that the science is not sound or that its story of Trotter's death is not correct, Steiker notes – only that the courts have not yet accepted this type of science as among those disciplines that become the "gold standard," such as DNA. In DNA cases, the science is so well accepted that it now overtakes all other evidence – including circumstantial and eyewitness testimony – requiring the narrative of guilt to be built around its results. "Revolution in science [in DNA knowledge] called into question convictions," says Steiker. "What other science has achieved that gold standard? With how much certainty can we tell how long a body has been decomposing? That's the issue."

The question of scientific certainty, of course, is an issue raised in more than DNA cases. In the capital case of Cameron Todd Will­ingham (executed in 2004), the courts, Gov. Rick Perry, and the Texas Forensic Science Com­mission have been asked to consider whether the state relied on outdated fire science to conclude that a fire at Willingham's home was intentionally set, killing his three young children. The circumstantial evidence reflects that Willingham was certainly no saint and may have behaved strangely during the fire – yet a dozen fire scientists have concluded that the Texas State Fire Marshal's Office relied on outdated and disproven science when it determined that the fire was intentional.

Yet prosecutors and courts are unmoved, and Perry, who has described Willingham as a "monster," has gone out of his way to thwart a Forensic Science Commission postmortem investigation into the integrity of the science used to convict and send Willingham to death. Consequently, if the Texas courts insist that the science in Swearingen's case is not more compelling than the circumstantial evidence, it is Perry and his Board of Pardons and Paroles – unless the U.S. Supreme Court steps in – who will have the final say on whether Larry Swearingen lives or dies.

The scientists involved in reviewing the evidence in the Trotter murder are confounded that the courts don't understand that the science involved in this case is basic stuff upon which the bulk of medicine relies. Indeed, notes Swearingen's attorney Rytting, histology and gross anatomy – the two basic areas implicated in the Swearingen case – underpin all the work done by the state's medical examiners in their work to determine cause and manner of death in thousands of cases. "This is hardcore, basic science," he says. "The thing that gets me is that no one has said ... your description of the tissues is wrong ... the authorities you cite [for your conclusions] are wrong ... [or] your conclusions are wrong," he notes, only that the science doesn't move the courts or prosecution to reconsider the case. "They haven't taken any of the experts to task; they haven't taken exception to any [of the] conclusions."

The Texas courts – in Montgomery County and here at the CCA – will have another chance to consider the science involved in determining when, and perhaps by whom, Trotter was killed. On July 28, 2011, the CCA again stayed Swear­in­gen's execution and returned it to the trial court to consider the import of the histological evidence detected under a high-powered marine biology scope, as well as related evidence.

"Who picked the time to die? Did Melissa Trotter pick the time for her death? Did she pick the circumstances for her death, or did he? She's talking to you the only way she can. She is talking to you through fibers and evidence," prosecutor Judith Shields said during closing arguments in 2000. "That's the only way she can talk to you now, and please, don't refuse to hear her voice."

The prosecutor was undoubtedly correct in her assertion that the physical evidence – as the victim's only available communication – should be carefully considered. And if it happens that certain, uncontradicted elements of that evidence point away from the prosecution's designated suspect and toward some other, unknown assailant, who will speak for Melissa Trotter?

FLASH: West Memphis 3 freed in plea bargain

Posted by Mara Leveritt on Fri, Aug 19, 2011 at 11:55 AM

• FREE MEN: Damien Echols, Jessie Misskelley and Jason Baldwin (L to R) meet press following their release. Brian Chilson photo

UPDATE: CNN has posted video of the hearing this morning.

By Mara Leveritt

After the bang of a judge's gavel, Damien Echols, Jason Baldwin and Jessie Misskelley Jr., walked out of a Jonesboro courtroom as free men, shortly before noon. They remain convicted felons, but they are not even on parole.

Circuit Judge David Laser accepted a plea agreement worked out between the state attorney general's office, the local prosecutor and attorneys representing the men, who have spent nearly 18 years in prison. Under the agreement, called an Alford plea, Echols, Baldwin and Misskelley told the court they would plead guilty to reduced charges of first-degree, rather than capital murder, while continuing to maintain that they are innocent. An Alford plea allows defendants to assert their innocence, while conceding that the state has enough evidence to convict them.

Echols, 36, and Baldwin, 34, pleaded to three first-degree murder counts and Misskelley to one first-degree and two second-degree murder counts. They then filled out paperwork for their release. The judge had the men testify about their education and whether they were under the influence of drugs. The judge made them understand they did not have to plead guilty but to continue to seek a new trial. They asserted their innocence but said they were entering the plea on advice of counsel as being in their best interest.

They were sentenced to time served — more than 216 months — with 120 months suspended. If they commit law violations, they'll have to serve that time. The biological father of a victim, Steven Branch, rose to object to the sentence. He said the plea deal would open a Pandora's box as he had in angry TV interviews yesterday. He was led from the courtroom by officers.

The judge commended the outside effort that had been made to win the defendants' release. He said it was the first Alford plea he'd handled, but thought it was in the best interest of all involved. Judge Laser said: "I believe this ruling will give rise to discussions for a long time to come. I don't think it will make the pain go away for the familides of the victims. I don't think it will make the pain go away for the families of defendants. It won't take away a minute of the time these men have served in prison. This is a tragedy on all sides." The judge said he held a private session with parties before the public hearing to make sure all understood the unusual agreement and all questions were answered.

A news conference by parties in the case followed. Prosecutor Scott Ellington defended the decision, though he held firmly to the state's belief that the defendants were the only ones responsible for the three deaths. He made clear further investigation of others was NOT planned. He released a statementwe've printed in full on another post He said he believed there was a strong chance a new trial would have been ordered because of jury misconduct, a fact along with new DNA evidence that complicated the case for the state. At this point, it would have been "practically impossible to put on a proper case against defendants," he said.

At the news conference, the defendants said the outcome was "imperfect" (Echols) and Baldwin said he opposed it initially because it "wasn't justice." Misskelley, asked about fear of threats on his life by those who might disagree with the outcome, said he was accustomed to threats from 18 years in prison. Baldwin said he ultimately joined the decision to save Echols' life, his attorney said. The men's attorney,Dennis Riordan, said the state's acceptance of the plea deal was a "recognition of their innocence," despite Ellington's assertion to the contrary.

• THE VICTIMS: From left, Chris Byers, Michael Moore and Stevie Branch.

The state's ability to convict the men was established in 1994, when two juries found the men, who were teenagers at the time, guilty of murdering three eight-year-old boys — Stevie Branch, Chris Byers and Michael Moore — the year before. Echols was sentenced to death, Baldwin and Misskelley to life without parole. They have since become known as the West Memphis Three.

The plea agreement means that attorneys for the state will not have to test whether they could win a conviction again, if new trials were ordered. Until today, a hearing to determine whether the men deserved new trials was scheduled for Laser's court in December.

With this agreement, Echols, Baldwin and Misskelley leave court as convicted murderers who have served an amount of time in prison that state officials accept as sufficient. However, all three preserve the right to attempt to clear their names in the future by bringing new evidence to court.

Like much of this case, today's agreement surpasses extraordinary. This may be the first time in this country that inmates sentenced to life — much less one sentenced to death — have been removed from their prisons in shackles and handcuffs and freed within 24 hours based on a plea agreement.

Usually, plea agreements are reached before — and in lieu of — a trial. It is extremely rare, if not unheard of, for state prosecutors to even consider revisiting murder convictions, much less after almost two decades. While hundreds of inmates have now been exonerated based on new DNA evidence, the agreement reached in this case is not an exoneration.

In general, the purpose of plea agreements, including Alford pleas, is to avoid the uncertainty and expense of a trial by agreeing to a lesser charge and accepting a commensurate sentence. In this case, the state had long ago won the convictions and the sentences were being served. Why prosecutors, including Arkansas Attorney General Dustin McDaniel and Scott Ellington of northeast Arkansas's Second Judicial District, chose to release the men at this point was not immediately clear.

However, several remarkable circumstances converged in this case to make a plea deal possible. A few were that: Judge David Burnett, who officiated at the 1994 trials, allowed HBO to film them; the resulting documentary and two books about the case created widespread public interest, along with some belief that Echols, Baldwin and Misskelley were convicted on what many considered scant evidence; financialhelp for the three men followed, gaining them high-powered legal representation; and that resulted in an Arkansas Supreme Court order last November for a hearing to review their cases. Study of DNA evidence, not possible in 1994, has yet to turn up DNA in the evidence that matches the defendants.

Laser's announcement yesterday that he would hold a hearing today took most in the state by surprise. He had set aside three weeks this December to hear all evidence from all sides in the case, after which he was expected to rule on whether the men would be granted new trials. If he ruled that they should be retried, some court observers considered it possible that a plea might be discussed at that time. To have it, in effect, preempt a hearing ordered by the Supreme Court is but one more startling aspect of today's developments.

Misskelley was the first of the three to be tried in 1994. He was 17 at the time. He was tried separately from the other two because he had confessed—and implicated Echols and Baldwin — in a statement tape-recorded by police. Misskelley retracted the statement but was convicted after prosecutors played it at his trial. Though prosecutors had asked for the death penalty, jurors sentenced Misskelley to life in prison.

Echols and Baldwin were tried immediately after Misskelley. Prosecutors wanted Misskelley to testify at their trial, but he refused, despite offers of a reduced sentence if he would say again that he'd seen them kill the children. Echols and Baldwin have always said they are innocent.

The case gained national attention soon after the teenagers' arrests, when word was leaked that the murders were committed as part of a satanic ritual. A key prosecution witness in the second trial was a self-proclaimed cult expert, who stated that the murders bore "trappings" of the occult. This testimony, combined with testimony about books Echols read and some of his writings, plus evidence that he and Baldwin liked heavy-metal music, and that a number of black t-shirts were found in Baldwin's closet, helped to convict the two.

Prosecutors asked jurors to sentence both to death. Jurors complied with regard to Echols, who was the oldest of the three, at 18, and the accused ringleader. Baldwin, 16, was sentenced to life in prison. Shortly before the trial, prosecutors had offered not to seek the death penalty against Baldwin, if he would say he'd seen Echols kill the boys. Baldwin refused.

In 1996, the Arkansas Supreme Court unanimously affirmed all three convictions. Years of appeals followed, and evidence from the crime was subjected to scientific testing not available in the early '90s. No physical evidence — at the trials or discovered since — has been linked to any of the three convicted. Recent tests, however, did establish that a hair found inside a knot used to bind one of the boys may have come from the stepfather of another of the victims. Additionally, a hair found in the bark of a tree near where the bodies were found was identified as probably belonging to a friend of that stepfather.

Attorney General McDaniel publicly dismissed the importance of those findings, saying that they did not prove that Echols, Baldwin and Misskelley were innocent. He has repeatedly pointed out that all three defendants confessed to the killings: Misskelley in his statement to police, Echols in a statement overheard by girls at a softball field, and Baldwin to a prisoner who was jailed with him before trial. Though hearsay, the testimony of the "softball girls" and the "jailhouse snitch" was allowed at the men's trials because the law permits statements relating to the admission of a crime.

McDaniel's office strenuously resisted defense attempts to gain new trials and to allow the new DNA evidence into court. But it was primarily because of the new DNA evidence that, nine months ago, the state Supreme Court ordered the evidentiary hearing that was to have been held in December.

Now, all of that is moot. Echols, Baldwin and Misskelley suddenly are free, never to be tried again for the murders for which they have now spent more than half their lives in prison. As convicts, they are unable to seek restitution for their time in prison or to profit from works about the case.

Political fallout is expected. McDaniel is expected to run for governor in 2014. Ellington has been considering a race for Congress. Though the West Memphis Three enjoyed a broad support group, many people remain convinced of their guilt. And some supporters resent that the Three were forced to admit to a crime they say they did not commit.

The decision is a repudiation, too, of two jury verdicts and the work of a prosecutor and law officers in the home territory of McDaniel, who's from Jonesboro.

Circuit Judge John Fogleman, who prosecuted the case, was defeated in a race for Supreme Court last year in a race in which the case was raised. He defended his work, pointing to jury verdicts and affirmations by appeals courts. He told the Arkansas Times, in response to the day's developments, "I respect the system of justice and as a sitting judge I do not think it would be appropriate for me to comment on a case that I’ve not been involved in for 17 years."