2017-08-13 18:53:42 UTC
TEXAS----new execution date
Judge sets death date for Montgomery County killer
Death row inmate Larry Swearingen, a Willis man who raped a 19-year-old coed
before strangling her with panty hose nearly 2 decades ago, is now set to die
on Nov. 16.
After 7 thwarted attempts, Montgomery County has finally succeeded in setting
yet another execution date for its only death row convict, a Willis man who
raped a 19-year-old coed before strangling her with panty hose nearly 2 decades
Larry Swearingen, convicted of killing Montgomery College student Melissa
Trotter in 1998 and dumping her body in the Sam Houston National Forest, is
slated to meet his fate in Huntsville's death chamber on Nov. 16, a judge ruled
"It still won't bring back Melissa," her mother, Sandy Trotter said in July.
"There are no winners in this because we still don't have Melissa."
Victim advocate Andy Kahan said it's been a "painstaking" wait for the Trotter
"Even when you finally believe that you're going to achieve justice, until it
actually happens you're questioning whether the actual execution will take
place or not," he said.
And in Swearingen's case, those questions are particularly well placed.
This is the state's 8th effort to get Swearingen's execution on the calendar.
At least 4 times, similar requests yielded a death date, but every time the
Court of Criminal Appeals stayed the execution.
But it is those repeated bids for testing that have become the hallmark of
Swearingen's legal case. For years, his lawyers have insisted that crime scene
DNA taken from evidence near Trotter's body could hold the keys to prove his
innocence. But prosecutors - and higher courts - have deemed such testing
At least twice, a trial court judge sided with Swearingen's testing requests -
but each time the state slapped down the lower court's grant, ruling that new
DNA wouldn't be enough to counter the "mountain of evidence" pointing to
Swearingen and Trotter were seen in the college's library together on Dec. 8,
1998 - the day of the teen's disappearance. Afterward, a biology teacher
spotted Trotter leaving the school with a man. Hair and fiber evidence later
showed that she'd been in Swearingen's car and home the day she vanished.
The killer's wife testified that she came home that evening to find the place
in disarray - and in the middle of it all were Trotter's lighter and
cigarettes. Swearingen later filed a false burglary report, claiming his home
had been broken into while he was out of town.
That afternoon, Swearingen placed a call routed through a cell tower near FM
1097 in Willis - a spot he would have passed while heading from his house to
the Sam Houston National Forest where Trotter's decomposing body was found 25
"A too trusting 19-year-old in the wrong place at the wrong time," Sandy
Trotter said, recalling her daughter's death. "It's just every parent's
Swearingen was convicted and sentenced to death in 2000. He went on to file
what prosecutors described as "an abundance of habeas corpus applications, pro
se motions, mandamus petitions, civil-right actions, and amended pleadings in
both state and federal courts."
The state's Court of Criminal Appeals rejected all 7 of Swearingen's habeas
appeals, and in July a federal district court slapped down a civil suit seeking
to win the convicted killer more DNA testing.
Through it all, Swearingen maintained his innocence.
"The way I look at it, I'm a POW of Texas," the former electrician has told the
media. "It's my army against their army."
Even though his bids for more testing ultimately didn't pan out, Swearingen's
DNA complaints sparked charges in state law in 2015. That year, lawmakers
expanded access to testing by removing the requirement that the accused prove
biological material - like saliva, sweat or skin cells - exists before testing
evidence for it.
But no amount of DNA evidence would be enough to exonerate the convicted
killer, prosecutors say.
Visiting Judge J.D. Langley greenlit Wednesday's decision in the 9th state
District Court after Judge Phil Grant recused himself from the case in June
2016 given his prior involvement as a prosecutor during his time in the
District Attorney's office.
"It appears there is no necessity for an evidentiary hearing related to any
issue raised in either the motion or the response," Langley wrote.
"The court can find no reason to further delay the imposition of the sentence."
Even at this late date in legal saga, Montgomery County prosecutor Bill Delmore
still anticipates pushback from Swearingen's attorneys.
"I would say I'm cautiously optimistic that if there's an execution date we
might finally see the culmination of this case," he said. "But I fully expect
the attorneys for Swearingen to request another stay and they've been very
tenacious in the past."
Even before the judge's decision, Swearingen's attorney James Rytting said he
planned to file a motion opposing the execution date because DNA from a rape
kit and the murder weapon had not yet been tested.
"How can you not test a rape kit?" he asked.
Just weeks before Langley issued his decision, Texas executed another convicted
killer, Taichin Preyor. The San Antonio man was sentenced to death for killing
a woman who sold him drugs. His attorneys filed a flurry of appeals, arguing
that former lawyers who worked on the case were "utterly unqualified."
Even with the addition of Swearingen's death date to the calendar, the Lone
Star State's use of capital punishment has been in a long-term downward slide.
So far, Huntsville has seen five executions in 2017, with another 6 - including
Swearingen's - on the calendar. Another is already slated for early 2018, just
days after all of the state's current supplies of lethal injection drugs
expire, according to information obtained through a July public records
The last time a Montgomery County killer saw the death chamber was in 2012,
when Jonathan Green was executed for strangling and sexually assaulting a
Afterward, he first buried the body, then dug it up and stashed it inside his
house, behind a chair.
On Thursday morning, Sandy Trotter was overcome with emotion upon hearing word
of Langley's decision.
"I'm so cautious - it's for the 5th time, is it really going to happen?" she
"I know his attorneys are going to be filing appeals. But surely it will happen
this time. It's like a dark cloud hanging over us for all these years."
(source: Houston Chronicle)
Executions under Greg Abbott, Jan. 21, 2015-present----25
Executions in Texas: Dec. 7, 1982----present-----543
Abbott#--------scheduled execution date-----name------------Tx. #
26---------Aug. 30-----------------Steven Long------------544
28---------Oct. 12-----------------Robert Pruett----------546
29---------Oct. 18-----------------Anthony Shore----------547
30---------Oct. 26-----------------Clinton Young----------548
31---------Nov. 16----------------Larry Swearingen--------549
32---------Jan. 30-----------------William Rayford--------550
(sources: TDCJ & Rick Halperin)
Brain-injury scientists play big role in death penalty cases
Courtrooms still have the traditional players - defense attorneys, prosecutor,
defendant and judge - but brain-injury scientists have muscled their way onto
witness stands in death penalty cases in a big way.
"It's not an excuse for the crime but rather an explanation for how that person
got into the position that he did," said John Spivey, Executive Assistant
Florida doesn't have a diminished capacity defense for the guilt phase. It's
part of the all-important penalty phase.
The Florida Supreme Court is demanding more scientific inquiry or else the case
may be overturned. But it is running up the costs of the already expensive
death penalty cases and causing a backup on dockets - sometimes for years.
The case of Krystopher Laws, for example, who along with Joshua McClellan
allegedly killed 92-year-old Rubye James of Leesburg and buried her in a
shallow grave, is not expected to go to trial until 2019.
Lake County does a better job of scheduling than other counties. Marion is the
busiest. Some cases may not go to trial for 6 years, prosecutors say.
The 1st thing defense attorneys do is to hire a mitigation specialist, who
interviews family members, and examines school and military records.
Investigators wonder, did he suffer any head injuries while playing football?
A neuropsychologist then administers a battery of tests to determine such
things as reasoning skills and impulse control. That person might recommend a
"If you get a neuropsychologist who recommends a pet scan and if you don't do
it, number 1 you're a boob," Spivey said. "Number 2, you're going to be
reversed [on appeal]."
"I'm investigating people like a cop," Spivey said.
If the neuropsychologist recommends a pet scan, Spivey hires a doctor to write
A pet scan shows how a brain is working. It uses radioactive materials to
present color pictures.
Prisoners have to be transported to Tampa for the exam.
An MRI scan, which has images in black and white, is also ordered.
A radiologist physician must examine the scans to see if part of the brain has
shrunk or shows evidence of injury.
A psychiatrist, who is also a medical doctor, must now be brought in to decide
if the scans indicate why the person acted the way he did.
Then, a child abuse expert is brought in to see if the defendant was abused,
lived in abject poverty, if the mother was drinking during pregnancy and a
whole host of other issues.
"Now, I've got 2 psychologists, a psychiatrist, a neurologist and a
radiologist. I've just spent $150,000," Spivey said.
It seems redundant, Spivey explained but there is a reason. "The jury presumes
One of the keys is quantifying the data. How bad are the injuries and the
Spivey relies heavily on Dr. Joseph Wu, director of Neuro Cognitive Imaging at
the University of California Irvine.
Wu gives Public Defender Mike Graves' office a break on price, "but these guys
aren't cheap," Spivey said.
Spivey said he has less than $900,000 in his yearly budget for things like
depositions and expert witnesses. However, Spivey is the lead counsel on 5
death cases in the 5-county circuit that includes Lake. He is short-handed on
death-qualified lawyers, which also backs up the cases.
Another cog is the number of defendants whose juries were not unanimous in
death recommendations. They are due resentencing hearings. Lake County has 2 of
those coming up: Allen Cox, who killed another prisoner at Lake Correctional,
and Jason Wheeler, who killed Sheriff's Deputy Wayne Koester and wounded 2
Civil trial lawyers started the demand for expert witnesses in their lawsuits,
"It's been around for awhile," said Chief Assistant State Attorney Ric Ridgway.
"It's become a cottage industry of doctors testifying in trials."
Spivey says the bulk of the costs fall on the defense. The state doesn't have
to hire its own brain scan experts.
"It depends on the evidence." Ridgway said. Sometimes there is a battle of
Ridgway was the prosecutor in the case of convicted sex offender John Couey,
who kidnapped and murdered 9-year-old Jessica Lunsford in Homosassa in 2005.
Dr. Wu was a defense expert in that case. So was a psychologist who testified
that Couey had a "broken brain" from head trauma and heavy drug use.
Ridgway said he hired a radiologist who testified that the brain scan looked
fine. Couey was convicted but died of cancer before he met the state's
Ridgway said his boss, State Attorney Brad King, would have to talk about cost.
"There's always a big pot of money up in Tallahassee that gets drained every
Some lawyers like to run up the costs, he said. "Some do it so it gets so
expensive you don't want to litigate. They admit it," Ridgway said.
"I'm not saying Spivey and those guys in Lake do it. They work to keep their
For Graves and Spivey, there is no letup in sight. 2 veteran assistant public
defenders have retired and Spivey is training others to become death-penalty
"There's only one of me," he said.
In the meantime, the courts keep changing the rules and scientists are taking
over the courtroom.
Couple charged with killing 5, including children, fetus and mans 2 wife
A husband and wife from Alabama could face the death penalty after they were
charged in the killings of 5 family members, including an unborn child,
multiple children and the man's 2nd wife, WHNT-TV reports.
Christopher Henderson, 42, and Rhonda Carlson, 44, have been indicted for the
murders that occurred 2 years ago in Huntsville.
Among the evidence authorities have against the pair: home security video that
shows the suspects entering the home with a gas can and then exiting just
before the house became engulfed in flames.
Police also found a gun in Carlson's truck.
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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