HOUSTON - Larry Ray Swearingen is facing his sixth scheduled execution date at the end of the month.
Swearingen was convicted in July 2000 of the 1998 kidnapping, rape and murder of college student Melissa Trotter. But Swearingen's attorney told Channel 2 Investigates he plans to file another appeal.
On Dec. 8, 1998, Melissa Trotter, 19, disappeared from what is now the Lone Star College campus near The Woodlands. Swearingen was arrested on outstanding traffic warrants on Dec. 11. Prosecutors said he initially became a suspect because surveillance video showed Swearingen talking with Trotter at the North Shore Marina two days before her disappearance when the pair made lunch plans. Court records said Swearingen was seen with Trotter on campus the day she disappeared. Investigators said Trotter's car remained on campus the day she disappeared. Trotter's body was found in the Sam Houston National Forest on Jan. 2, 1999. A memorial plaque to Trotter remains on the campus.
Prosecutors said friends of Trotter initially told investigators about Swearingen.
"They notified police, (and said) 'Hey, we saw Melissa talking with this guy. This is what he looked like. This is what his truck looked like,'" said Kelly Blackburn, trial bureau chief for the Montgomery County District Attorney's Office.
"Why did he kill her?" Channel 2 investigative reporter Robert Arnold asked Blackburn.
"Because she wouldn't have sex with him," Blackburn said.
Nearly two decades of appeals and stays of execution
"He's like a cat with nine lives," said former Montgomery County Prosecutor Warren Diepraam.
Swearingen has avoided scheduled execution five times in his nearly two decades on death row. Some of the stays were granted because of appeals and another was due to a clerical error. His last scheduled execution was in November 2017. It was stayed, however, when investigators discovered a botched plan by Swearingen to have a fellow death row inmate take credit for Trotter's murder.
Prosecutors said a search of Anthony Allen Shore's cellphone turned up numerous documents and details of Trotter's murder. Shore, known as the "Tourniquet Killer," told investigators Swearingen asked him to take credit for Trotter's murder. Prosecutors said Swearingen gave Shore the documents so he would have specific details of Trotter's murder. Prosecutors said Shore told them he initially agreed to help Swearingen but then changed his mind. Nonetheless, Shore's and Swearingen's executions were stayed so investigators could sort everything out. Shore was executed in January 2018.
Challenging the science
Swearingen's attorney, James Rytting, said he plans to again appeal his client's death sentence. Rytting said the latest appeal is based on fairly new state law. That law allows a person to win a retrial if the scientific conclusions used as a basis for a conviction can be refuted.
"We're going to challenge it all, all over again," Rytting said. "We believe that his conviction rests on a pile of junk science."
Rytting has long argued the state got Trotter's time of death wrong. Testimony during trial stated Trotter died approximately three weeks prior to being found. But Rytting said at least six forensic pathologists have given sworn statements Trotter died sometime after Swearingen was first arrested and therefore he could not be her killer.
Rytting also plans to challenge testimony saying that, on the day Trotter disappeared, cell towers put Swearingen along the route from his house to where she was found.
"There was no way to place him, as the state maintains they could, in very discreet parts of the county," Rytting said.
Rytting is also challenging one of the key pieces of evidence against Swearingen: half of a pair of pantyhose used to strangle Trotter.
Prosecutors said the other half of the pantyhose was found at Swearingen's home and matched along a cut line. Jurors were shown this exhibit of the two halves.
Rytting, however, said imaging experts from Cherry Biometrics analyzed photographs of the two halves and can show there is not a match.
Rytting also questions why there is no DNA evidence linking Trotter and Swearingen.
'A mountain of circumstantial evidence'
"Does the DA's office have any concerns at all that this may not be the guy who murdered Melissa Trotter?" Arnold asked Blackburn.
"Zero. Zero concerns," Blackburn said.
Prosecutors said the question about Trotter's time of death has been the basis of past appeals and all failed to win Swearingen a retrial. Diepraam handled one such appeal that was heard by a judge.
"The judge found in our favor. The scientific evidence supported a conviction," Diepraam said.
Blackburn said defense experts gave varying times of death for Trotter and argues their opinions were "made in a vacuum."
"So far, any of those opinions that have been scrutinized under oath, in a hearing, on the stand, haven't held up," Blackburn said. "You have to look at it within the totality of all the evidence that was presented and determine how credible do you think this."
Blackburn also said there is a "mountain of circumstantial evidence" connecting Swearingen to Trotter's murder.
Blackburn said fiber evidence shows Trotter had been in Swearingen's truck. He said cigarettes and a lighter believed to belong to Trotter were found in Swearingen's house. After her disappearance, neighbors found her torn school papers on a street where Swearingen's family members lived, court documents read.
Blackburn said he is also not concerned by the defense's assertions that the two halves of the pantyhose don't match.
"Does it surprise you they are attacking the fact that the other half of the murder weapon was found at his house? That's pretty damning evidence," Blackburn said.
Blackburn also points to Swearingen's actions following Trotter's disappearance. He said Swearingen got a cellmate at the Montgomery County jail to transcribe a poorly worded letter in Spanish that claims someone else killed Trotter.
"That letter had details, vivid details about what she had on, what she was wearing -- things that only the killer would know," Blackburn said. "The fact that he tried to get multiple people to cover up for him and to give him an alibi while he was in jail."
Blackburn said Swearingen also filed a false report that his home had been burglarized the day Trotter disappeared. As for the botched plan with a fellow death row inmate, Rytting said that was an innocent man acting in a desperate manner. Blackburn described it differently.
"We believe that it's consistent with the sociopathic ways of Larry Swearingen," Blackburn said.
Swearingen is scheduled for execution on Aug. 21.
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