Did Kellyanne Conway murder Melissa Trotter?

It's been a while, years in fact, since I've written about Larry Swearingen who did not kill Melissa Trotter.  That's the same Larry Swearingen the good people of the State of Texas intend to kill on November 16 for the murder of Melissa Trotter.  The same Melissa Trotter Larry Swearingen did not kill.

Sigh.

Let's do this in three parts.

Part I:  Larry Swearingen was in police custody when Melissa Trotter was elsewhere getting killed.   That seems incontestable.  

The Texas courts don't care.  The prosecutors don't care.  After all, there's all that circumstantial evidence and junk science that points to him.  Therefore he's guilty.  Proof that he's innocent would be, I don't know . . . . 

Wait, I got it.

Alternative Facts.

Cool.  Let's blame the killing on Kellanne Conway.  I don't know where she was at the time.

Anyhow, whoever killed Melissa Trotter, it wasn't Larry Swearingen.

But, again, the courts don't care.  The prosecutors don't care.  And Texas plans to kill him on November 16.

Part II:  As I've said from time to time in the context of more than one allegedly bad guy

TEST THE FUCKING DNA!

But of course they won't.  Well, that's not quite right.  They've tested some.  To the surprise of pretty much nobody who paid attention to Part I, 

IT AIN'T HIS.

Which is, of course, not of any particular interest to the courts or the prosecutors.  Who don't care.

There's more stuff that can be tested, really, stuff that should be tested.  The trial court (the Texas trial court!) has a couple of times now ordered the testing under the Texas post-trial DNA testing statute. Of course, the prosecutor appealed, because -- we'll get to that.  And the Texas Court of Criminal Appeals said "No."

YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT IN A CAB!
YOU MAY NOT TEST IT IN A LAB!
YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT, THAT WE SAY!

Oh, and in particular, if testing were to be allowed, the DNA could not be run against the existing DNA databases to see if it matched a person who might have killed Melissa Trotter.  Say, someone who understands and hides behind alternative facts.  Say, Kellyanne Conway.

Nah!

No testing, no checking.

But the court is cool with killingLarry Swearingen November 16 for the murder of Melissa Trotter whom he did not kill.

Part III:  Which brings me to the prosecutor and the reason he doesn't want the testing done - though he'd love to have it done.  Just as long as he can be assured that the testing will be irrelevant.  Jordan Smith, at The Intercept: 

The problem is with the way the statute is written, says Bill Delmore, chief of the Montgomery County DA’s Legal Services Bureau, which handles the office’s appeals. In deciding whether a defendant is eligible for DNA testing, a judge is required to find that exculpatory results would likely change the outcome of the defendant’s trial. That’s exactly what Case found each time he granted Swearingen’s request. But Delmore says his office is unwilling to accept that possibility. “I would never, ever agree — never, ever agree — that the presence of a third party’s DNA on some random piece of evidence in this case establishes that Larry Swearingen is innocent. That is ridiculous,” he said.

What the DA’s office wants is to be able to conduct testing without ever having to acknowledge that the results might change the original conviction. “If you told me that all the other evidence had somebody else’s DNA on it, then I’d say, well, [that person] must’ve done this with Larry Swearingen,” Delmore said. “It’s really hard for me to imagine DNA evidence in this case that would actually, in my mind, exonerate Swearingen.”

See, the problem is that the evidence might matter.  Oh, sure, it would just get a hearing.  But damn, then someone would have to consider . . . .

Still, Delmore is adamant that he and his boss Ligon are not opposed to DNA testing, per se. “We’ve always been willing to do the testing, but we’re not willing to do it under the constraints that this stupid statute puts on us.”

Besides, they probably like Kellyanne Conway.

Or maybe it was Sean Spicer.

OK, I'll come clean.  I don't think it was Kellyanne Conway.  She probably wasn't there, either.

On Judges Getting It Right and Prosecutors Getting it Wrong and Testing and Believing the Fucking DNA

As Paul Kennedy wrote this morning,

Judge tells state to just test the damn DNA

which appears not to be exactly true, but hell, it was a headline.  And it sure looks like he's about to tell them to test it.

It's from Larry Swearingen's case, the one where nine (9!) forensic pathologists examined the autopsy results and concluded that the evidence clearly showed that he was innocent.  You know, because he was in jail when someone (but not he) killed Melissa Trotter.  And now it looks like they'll finally test the DNA.  And really, it's about time and getting awfully close since the good people of Texas were meaning to kill him in less than a month.  And of course the prosecutor is on their side because who gives a rat's ass about innocence, after all, when the chance for killin' is so close.

Meanwhile, up here in the Buckeye State, the Honorable Judge Judy Hunter issued a 26 page opinion explaining that since the DNA showed Douglas Prade (about who I've written before) is innocent, well then.

 [T]he evidence that the Defendant presented in his case is clear and convincing.  Based on the review of the conclusive Y-STR DNA test results and the evidence from the 1998 trial, the Court is firmly convinced that no reasonable juror would convict the Defendant for the crime of aggravated murder with a firearm.  The Court concludes as a matter of law that the Defendant is actually innocent of aggravated murder.  As such, the Court overturns the Defendant's convictions for aggravated murder with a firearms specification and he shall be discharged from prison forthwith.

. . .

The Court finds that no reasonable juror, when carefully considering all available evidence in the underlying trial in light of the new Y-STR DNA exclusion evidence, would be firmly convinced that  that Defendant Douglas Prade was guilty of aggravated murder with a firearm.  Given such a scenario, the outcome of the deliberation on these offenses would be different - the verdict forms would be completed with a finding of not guilty.

(Emphasis added.)

Which is almost as good as it gets.  Except that the prosecutor is appealing.  Because, after all, you can't let a simple thing like innocence get in the way of keeping a guy in prison for life.

Or for death, if you're talking about Larry Swearingen.

   Prade ruling by  

Douglas Prade - Released

Larry Swearingen - On Death Row

Elementary, My Dear Watson

How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?

Sherlock Holmes, The Sign of the Four

His name is Larry Swearingen, and whatever he did or might have done, he did not murder Melissa Trotter.

Oh, she was murdered.  And there's a wealth of circumstantial evidence that led the cops to arrest and the DA to prosecute and the jury to convict Swearingen of Trotter's kidnap, rape, and murder.  And the law allowed it and it was Texas so there's no surprise, really, that in the summer of 2000, after the trial, Swearingen was sentenced to be killed.

He appealed, of course.  And argued.  And made his claims.  And there he was, near the end.  August 18 is when they planned to kill him.  Until someone said to hang on.  Because, see, whatever Larry Swearingen did or might have done, he did not murder Melissa Trotter.  Really, it's not even a debatable point, though the state of Texas continues to debate it.

Here's the thing.  Years after the trial, in 2007 and then in 2009, experts (even the coroner actually looked at evidence from Melissa Trotter's body to figure out when she was killed.  Huh?  Don't they always do that?

Apparently not.

Here's the thing.  Trotter disappeared on December 8, 1998.  She and Swearingen, who knew her and had a relationship with her, were seen together that day.  She was never seen alive again.  He was arrested on traffic warrants three days later and has been in custody ever since.  Her body was found in January.  And there was all that circumstantial evidence (and there was plenty).

But when the scientists actually looked at the physical evidence of the body, well, ooops.  Seems she wasn't killed until after he was in custody.  Couldn't have been.  So say some 10 separate scientists based on several different sorts of analysis.

Let's be clear.  If she wasn't killed until after he was in custody, then he couldn't have done it.  Not possible.

But all that circumstantial evidence.  My god.  Of course he did it.

Except he couldn't have.

Swearingen's been trying to get the courts to look at this, to recognize that if it was impossible for him to have killed her, then he didn't.  The courts weren't biting.

Prosecutors in Montgomery County do not buy the setup theory, and the courts have rejected repeated pleas from Mr. Swearingen’s lawyers to review the scientific evidence. Brandi Grissom, for the Texas Tribune explains.
In a November 2009 court ruling, Melinda Harmon, a judge in the United States District Court, wrote that Mr. Swearingen should have discovered and presented the forensic evidence years earlier. But she did not only deny his plea based on procedure; Ms. Harmon wrote that the scientists’ reports were not credible because they each reviewed different kinds of evidence. Some looked at microscopic tissue samples, some examined photos and video, and others looked at bugs. “This is not a case where Mr. Swearingen’s evidence is so compelling that a court cannot have confidence in the outcome of his trial,” she wrote.

OK, what Judge Harmon said was a little more nuanced than Grissom makes it sound, but that's the general point.  The experts didn't agree on all the details, and there's still some stuff that's troubling.

So there sat Larry Swearingen.  On death row.  To be executed August 18.  For a crime that, whatever he did or might have done, he did not commit.  

And then.

Look, we know Keller's view, that finality is more important that innocence.

We know that Trotter's family wants Swearingen killed.

We know that the courts have never been convinced and the prosecutors aren't even close.

And yet, and over dissents (including by Keller and her opponent in the next election), the Texas Court of Criminal Appeals stayed the killing and sent the case back to the trial court.

[T]o review and resolve the claims raised.

Hard to know exactly what that review will entail.  But Swearingen gets to present his evidence.  Which is no small thing.

Since whatever Larry Swearingen did or might have done, he did not murder Melissa Trotter.

As Holmes would say, it's elementary.

Swearingen Op