'The Science of Injustice'

Jordan Smith at the Austin Chronicle has a terrific article this week with the same title as this post on the case of Larry Swearingen, who was convicted of capital murder for the death of Melissa Trotter in 1999. Now, a growing litany of experts say he was convicted based on junk science. Here's a notable excerpt from the much longer story:

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.

"[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."