Though Montgomery County, Tex., sheriff’s deputies searched Swearingen’s trailer twice, it wasn’t until after Trotter’s body was found that a landlord discovered another leg of pantyhose in Swearingen’s residence. A lab technician from the Texas Department of Public Safety testified that it was “a unique physical match” to the hose wrapped around Trotter’s neck, “to the exclusion of all other pantyhose.” At trial, the Montgomery prosecutor told the jury that the hose was “really, the smoking gun, if you would, the irrefutable evidence … The smoking gun, folks.”
Except, perhaps, it wasn’t.
Two experts in fiber analysis who compared the pieces of hose have since concluded they don’t match when lined up next to each other, and a third said the state technician’s testimony was overstated. And last month, the Texas Department of Public Safety said the technician should not have testified the pieces matched “to the exclusion of all others.”
Swearingen, who has maintained his innocence, is set to be executed Wednesday. His lawyers, citing the pantyhose testimony and other evidence they contend is flawed, are trying to halt it.
Swearingen testified at his capital murder trial that “I did not put no pantyhose around her neck … To take your hands and strangle somebody, that’s not me.” Trotter was his friend, he has said. The two were seen having a friendly conversation in the college student center on Dec. 8, 1998, the day Trotter was last seen. No one witnessed Trotter being abducted, sexually assaulted or murdered. A jury found Swearingen guilty of capital murder in June 2000 and sentenced him to death.
On Friday night, both the Texas Court of Criminal Appeals and the U.S. Court of Appeals for the 5th Circuit rejected Swearingen’s motion for a stay of execution. “Swearingen’s ‘new’ claims in this latest phase could not possibly have made any difference to the outcome of his trial,” Circuit Judge Stuart Kyle Duncan wrote. Swearingen’s lawyers said Saturday they would now appeal to the U.S. Supreme Court.
Texas prosecutors are convinced that Swearingen is a murderer who became angry when Trotter stood him up for a lunch date, and they have successfully defeated his appeals at the state and federal levels. The U.S. Supreme Court has twice declined to hear his case. Montgomery County District Attorney Brett Ligon declined to comment on the new filings, but in 2017, he wrote, “We remain absolutely certain of Swearingen’s guilt of Melissa Trotter’s murder.”
Trotter’s parents, Charles and Sandy Trotter, also are confident that Swearingen killed their daughter. For them, the appeals and dates of executions and stays have seemed endless. “It’s like a dark cloud hanging over us for all these years,” Sandy Trotter told the Houston Chronicle in 2017, before another stay of execution was issued.
Swearingen’s lawyers, James Rytting of Houston and Bryce Benjet of the Innocence Project in New York, contend that a combination of flawed science and overblown testimony has condemned an innocent man. Among their key arguments, in addition to the pantyhose analysis:
⋅ 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.
⋅ Though Trotter had been gone for 25 days, her body was not heavily decomposed. The county medical examiner testified at trial that Trotter probably had been dead for 25 days. But she later changed her mind to 14 days. Seven other forensic pathology experts have said Trotter’s death couldn’t have occurred more than two weeks before her body was found, and Swearingen had been in jail for 22 days before the discovery.
Read the Motion to Stay Swearingen's execution
⋅ Because eyewitnesses placed Trotter and Swearingen in different places around the time she went missing, sheriff’s deputies used cell tower records to show that Swearingen could have taken Trotter to his home and then to the forest soon after leaving the college. Experts for the defense contend police improperly inferred Swearingen’s locations from the towers his phone used, wrongly contradicting his alibi and witnesses.
⋅ The prosecutors used the same state lab technician who matched the pantyhose to say that hair found in Swearingen’s truck came from Trotter, and that polyester fibers from the truck were found on Trotter’s coat. But the fibers were from a mass-produced product, and hair comparison evidence has been widely discredited since 2000.
In his 19 years on death row, Swearingen has had five scheduled execution dates, followed by five stays of execution. Rytting, who has represented Swearingen for more than 15 years, has long challenged the science behind the evidence, particularly the conclusions about the decomposition of Trotter’s body, but has never fully convinced the courts of his view that there are “very deep problems with the forensics in this case.”
Now, time is running short. “They may put Swearingen in the ground,” Rytting said, “but this case will not die with him. This case has questions that will still be asked.”
FBI overstated forensic hair matches in nearly all criminal trials for decades
Though Texas is notorious for its rate of executions — it has 10 scheduled in the next three months — it also has one of the most progressive laws in the country to enable defendants to challenge convictions on the basis of newly discovered scientific evidence. Spurred in part by “junk science” testimony that led to wrongful convictions, Texas law allows testing of DNA and other materials even if they weren’t issues in the original trial.
When Rytting and Benjet were looking to challenge the cellphone evidence against Swearingen, they consulted Mike Cherry, a forensics consultant from Falls Church, Va., who had previously helped exonerate an Oregon woman convicted of manslaughter. Cherry’s team dissected the use of cellphone records by the Montgomery County authorities, disputing their conclusions, and then turned to the pantyhose evidence.
First they reviewed notes of Texas crime lab technician Sandy Musialowski, who had been provided the hose found around Trotter’s neck and the hose found in Swearingen’s trailer. Musialowski initially wrote that she found “no physical match between ligature & pantyhose.” Her notes, not provided to the original defense team, show that over the next several days, “she was working to make one piece fit the other,” Cherry said. The following year, she testified that the two pieces were a unique match.
Cherry provided photos of the evidence to Deborah Young, a professor of textile science at Cal Poly Pomona. “At first glance, the two pieces appear to connect,” Young said in an affidavit filed earlier this month, “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’”
Affidavits were provided by two other experts, including Max Houck, a former head of the D.C. crime lab, who said Musialowski’s testimony was “unwarranted given a deficit of scientific and statistical support for this type of comparison. It is not possible to check these exhibits against all other possible targets.”
Last month, Brady W. Mills, the director of the Texas crime lab, issued a letter saying Musialowski’s testimony went too far. He said “the terms ‘unique’ and ‘to the exclusion of others’ were common language throughout the forensic community, at the time … Today we would report that the two pieces were once joined, but would not include the statement ‘to the exclusion of all others.’” He maintained that Musialowski “did not err in her reporting or testimony,” only that in 2019 “the terminology would be different.”
Swearingen’s lawyers then focused on the blood flakes and DNA found under Trotter’s fingernails, seemingly indicating someone other than Swearingen had scuffled with Trotter before her death. At Swearingen’s trial, Texas lab serology expert Cassie Carradine testified that the blood was “bright red,” indicating it was new and not from the body of someone who had been dead for 25 days. Carradine concluded that the blood was probably dropped “either at the time the sample was being collected” at autopsy “or after the sample was being collected,” meaning it was from someone other than the killer. Carradine later went on to run the Austin police DNA lab, which was closed in 2016 because of mismanagement.
This month, Mills, the director of the state crime lab, issued another letter saying Carradine’s testimony about the blood in Swearingen’s case was inappropriate. Carradine “had no direct knowledge about how the evidence in question was collected or stored prior to its submission” to the lab, Mills wrote. “Nonetheless, during testimony, she expressed an opinion that the profile from a particular sample was the product of contamination … The full range of possibilities include contamination or that it was not contamination and the [DNA] profile [excluding Swearingen] did come from the evidence.”
“Carradine’s explanation that the blood resulted from postmortem contamination,” Rytting and Benjet wrote in their motion for a stay, “eviscerated Swearingen’s most powerful evidence of innocence at trial — namely, that Trotter, after her disappearance, had been involved in a physical struggle with an unknown male.” They noted that appeals courts relied on that testimony in rejecting Swearingen’s appeals.
The fact that Trotter’s body was not in an advanced state of decomposition, though prosecutors believe she had been dead for 25 days, has long been a point of contention for Swearingen’s team. Swearingen was jailed three days after Trotter’s disappearance on Dec. 8, 1998. She was found Jan. 2, 1999, in an area of Sam Houston National Forest that had previously been searched.
Joye Carter, the Harris County medical examiner, testified at trial that she believed Trotter had been dead for “25 days or so,” but in 2007 she signed an affidavit saying the body had been left in the woods “within two weeks of the date of discovery.” Four other forensic pathologists estimated that Trotter’s body had been in the forest for different ranges — one said two to three days, one said three to four days, one said five to seven days, and another said 10 to 15 days. A forensic anthropologist and three forensic entomologists, examining the insects found on Trotter, estimated the time of death as around mid-December, but long after Swearingen’s arrest.
In 2016, Victor Weedn, a forensic pathologist at George Washington University and former president of the American Academy of Forensic Sciences, issued a report saying there was “considerable evidence to suggest that Ms. Trotter was not killed on the day of her disappearance, but was held, killed later, and her body dumped in the Sam Houston National Forest, sometime after the arrest and incarceration of Mr. Swearingen.”
Weedn said in an interview that “the issue of postmortem interval determination, based on pathology, is extremely variable, and it’s fraught with problems … Having said all of that, it does appear that there’s few experts on the prosecution side and many on the defense side” in the Swearingen case.
The pathologists agreed that temperatures, which fluctuated from the 30s to the 70s in the days after Trotter’s disappearance, can affect the rate of decomposition, and that body organs typically decompose quickly after death, but Trotter’s organs were able to be sectioned and examined by Carter.
Prosecutors said Swearingen was angry at Trotter for not showing up for a lunch date the day before her disappearance. But co-workers of Trotter’s said she was dating Swearingen and didn’t fear him. One of the co-workers, Lisa Roberts, had grown up with Swearingen in nearby Willis, Tex., and testified that Trotter was receiving vulgar, threatening phone calls from a different man at the call center where they worked. Roberts said Trotter cried after some of the calls, that Roberts took a couple of the calls, and that in one the man said, “I’ll strangle you. I’ll choke the life out of you.”
Roberts said that she told the police about the calls and threats but never heard about them again. Prosecutors at trial denigrated the man as “the mystery man” on whom Swearingen was falsely trying to pin the slaying.
Witnesses at Montgomery College said they saw Trotter in the student center on the afternoon of Dec. 8, but not with Swearingen. One of Trotter’s instructors, whose study session Trotter had just left, saw her at 2 p.m. with “a large light-haired man,” according to her police statement. Swearingen had jet black hair and was wearing a “garish orange western wear jacket” that day, Rytting said. Two students gave police statements saying they saw Trotter get food sometime between 2 p.m. and 2:30 p.m. and eat alone. Meanwhile, Swearingen’s landlord saw him at his trailer alone, 21 miles from campus, from 2:30 to 3 p.m., and he was seen later in the afternoon by other witnesses. Prosecutors said Swearingen could have taken Trotter to his trailer, raped and killed her, dumped her in the forest and then returned to the area to be seen by others.
The Innocence Project’s Benjet noted that many proven wrongful convictions have been the result of false or invalid forensic science. “Especially where the United States Supreme Court has recognized that invalid forensic testimony contributed to 60 percent of wrongful convictions,” he said, “we should not execute a man based on science we now know is false.”