Death row inmate Larry Swearingen spoke to The Washington Post moments before he was executed by lethal injection. Photo / Washington Post
Larry Swearingen, who claimed to his dying breath that he did not commit the murder of 19-year-old Melissa Trotter in 1998, was executed by lethal injection Wednesday night at the state prison in Huntsville, Texas.
Swearingen, 48, was arrested three days after Trotter disappeared from her community college north of Houston in December 1998, and three weeks before her body was found in January 1999.
His lawyers argued for nearly two decades that scientific evidence in the case - DNA under her fingernails that wasn't Swearingen's, pantyhose around her neck which may not have matched hose found in Swearingen's home and findings by experts that she had been dead no longer than two weeks - exonerated him.
But prosecutors from the Montgomery County District Attorney's office argued that the science was on their side and that circumstantial evidence such as Swearingen's actions with Trotter before her death, his lies to police after her disappearance and his prior violent acts toward women all pointed to him as the sole killer.
And a series of state and federal court judges refused to overturn the jury's guilty verdict of capital murder in June 2000, and death sentence the following month.
"I've never been more confident of the guilt of Larry Swearingen than I am today," said Kelly Blackburn, the assistant district attorney who has handled Swearingen's case since 2010, several hours before the execution. "An innocent man is not being executed tonight. The man who abducted, raped and strangled Melissa Trotter is being executed."
Swearingen released a statement to The Washington Post Wednesday before his death which said, "Today the state of Texas murdered an innocent man." He criticised the Texas justice system for treating him unfairly, and said "I feel certain that my death can be a catalyst to change the insane legal system of Texas which could allow this to happen."
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Swearingen then called The Post shortly before 6pm ET to say that "I'm scared and that's what it comes down to."
While waiting for his final appeal, he said, "I need four votes from the Supreme Court to stop this," meaning the number of justices needed to hear the case. Those votes did not come, and the high court denied his habeas corpus petition without comment shortly before 7pm ET.
A state prison spokesman said he was put to death by lethal injection at 7:47pm ET, and his final words were, "Lord forgive them. They don't know what they are doing."
Trotter's mother, Sandy Trotter, told the Houston Chronicle that she never wavered in her belief that Swearingen killed her daughter.
"The overwhelming evidence is not just a coincidence," she said. "There was a trial; he was found guilty, and they agreed on a sentence."
The family had endured five previous stays of execution, but in addition to the state and federal courts, the Texas parole board and Governor Greg Abbott, R, declined to commute his sentence and the US Supreme Court on Wednesday refused to hear a third petition to take the case.
Trotter, a student at Montgomery College, now called Lone Star College, told friends that she and Swearingen were dating, which Swearingen said explained why her hair was found in his truck. Swearingen was then a married 27-year-old electrician.
After Trotter left a study session about 1:15pm on December 8, 1998, she met up with Swearingen in the student centre.
Swearingen claimed he then left the centre without Trotter. Other students said they saw Trotter eating alone, or with a different man than Swearingen, who was wearing a bright orange jacket. But after 2pm that day, Trotter was not seen alive again.
Montgomery County sheriff's detectives soon focused on Swearingen.
On the afternoon of December 8, his wife came home to find their home and bedroom in disarray, and Swearingen then made a false police report that his home had been burglarised and property stolen.
He also lied to police about his whereabouts that day, and fled in a stolen truck when police moved to arrest him on December 11.
Police searched Swearingen's trailer twice, where he lived with his wife and children, after Trotter's disappearance.
But when her body was found in the Sam Houston National Forest with a leg of pantyhose wrapped around her neck, on January 2, 1999, a third search uncovered what prosecutors said was the "smoking gun": another half of pantyhose which they said was a match.
Swearingen's lawyers presented new evidence this month which seemed to show that the two parts of pantyhose did not match.
They also presented a number of pathological experts who said Trotter had not been dead for more than two weeks, though Swearingen had been in jail for more than three weeks.
Blood found under Trotter's fingernails was from a man, but not from Swearingen, tests showed.
A state lab technician said the blood probably came from contamination during the collection or testing process, though the state lab issued a letter earlier this month saying the technician had no grounds for such testimony.
"I would challenge anyone to look at this pantyhose," the prosecutor Blackburn said, "and tell me they did not come from the same set of pantyhose."
He noted that even one expert for Swearingen testified recently that they appeared to match, though other defence witnesses did not.
He said the tiny blood flakes found in the fingernail scrapings of Trotter were "more than likely contamination," and that "our state's experts were vigorously cross-examined" by Swearingen's original trial lawyers.
"The jury heard all of that," Blackburn said.
"It's not true," Swearingen said Wednesday evening.
He said the new pantyhose evidence "shows the 'murder weapon' is not even a match. So if that's not the murder weapon, then that's not the smoking gun. That was the catalyst to their case. The jury was never told that. The appellate courts were never told that."
Swearingen also said Texas authorities had not placed the DNA found under Trotter's fingernails in a national database, only in a state database. He said he thought it would eventually link someone else to the crime, but "will I be here in time enough to see it happen, I don't know."
The jury did hear, in the sentencing phase of the case, of Swearingen's prior violent behaviour toward women.
Blackburn said Swearingen had sexually assaulted his first wife at knifepoint, gagged and sexually assaulted another woman, and had broken into a neighbour's home and cut off the legs of a pair of pantyhose.
He was convicted of capital murder while committing aggravated sexual assault, though his defence has challenged that Trotter was sexually assaulted.
Swearingen took the stand and told the jury he didn't kill Trotter.
One issue that wasn't raised at trial was the state of Trotter's body.
Though the medical examiner testified that Trotter had likely been dead for 25 days, the amount of time between when she disappeared and was found, numerous forensic experts have since testified for the defence that Trotter had probably only been dead for about two weeks or less.
Texas prosecutors argued, and the courts agreed, that the science of "post-mortem interval" is inexact and that the differing time estimates were not convincing.
Prosecutors noted that Trotter had the same food in her stomach as she was last seen eating at the college student centre, and was wearing the same clothes.
James Rytting, Swearingen's lawyer for the last 15 years, responded that if Trotter were dead for 25 days the food would have disintegrated, that it wasn't the same food, and that if she were held captive she wouldn't have been "taken to Macy's to freshen up."
Rytting added, "The whole thing is nonsense, forensics at its worst."
In a final ruling on Friday, the federal Fifth Circuit appeals court rejected Swearingen's new challenges.
"Swearingen has not come close to establishing that 'no reasonable factfinder' would have found him guilty," wrote US Circuit Judge Stuart Kyle Duncan, a recent appointee of President Donald Trump.
Swearingen said in his statement to The Post that "Many people participated in my demise," claiming that police planted the matching pantyhose in his home and that the medical examiner lied about the length of time Trotter had been dead.
But Swearingen said he deserved some blame too. "Not because I had anything to do with Melissa's murder," he said. "She was my friend. But in my youth, I made a lot of stupid mistakes. ... I was philandering with Melissa and other women instead of taking care of my wife and kids. I had been violent with both women and men. I put myself in a perfect position to be framed for murder."
Blackburn said Swearingen and his lawyers, including the Innocence Project, "want you to look at everything in a vacuum. But juries don't do that, they look at the whole case. And the totality of circumstances and the mountain of evidence that Larry Swearingen kidnapped and murdered Melissa Trotter is overwhelming."
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