I could be the worst person in the world

It still doesn’t make me a killer

Luke O'Neil

Every morning president Mark Rothko hangs an abstract painting on the gallery wall and we all stand in front of it trying to reverse engineer meaning into it half of us saying it's a work of genius half of us saying it's a piece of shit any child could do and that’s as close as I can get to explaining the president calling himself the king of Israel this morning.

If you missed it you can read this Hell World from the other day about an actual King of Israel in Ecclesiastes and about how no one is going to remember any of us a generation or two down the line if generations and lines still exist in the future.

You could also read this one from March about a fine man and cancer patient named Nolan Sousley who I wrote about when police ransacked his hospital room looking for evidence of marijuana. Sousley passed away this weekend.

“It has my final day things in there,” he said as the cops rifled through his bags.

“And nobody’s gonna dig in it. It’s my stuff. It’s my final hour stuff in that bag and that is my right. And I’m not taking it out for anybody.”

Or you could just read this one starting now.

“It was a warm winter in southern Texas, with temperatures often reaching 20C/68F,” when they found the body journalist Andrew Purcell wrote on Twitter today. “The forest is home to carnivorous feral hogs, coyotes, vultures and eagles,” he wrote and don’t laugh at the feral hogs part because this isn’t a particularly funny one. Or maybe laugh real quick right now while you still can because there won’t be many jokes forthcoming in this edition of the famous newsletter we all know and read for some reason.

“Yet Melissa Trotter’s organs were intact. A single leaf had come to rest on her exposed torso.”

That detail about the single leaf man. The young woman’s body hadn’t even been there long enough for more than one single leaf to fall on her. She hadn’t been there long enough to be eaten by wild animals. The insects had barely begun their insecting business inside of her. The men who found her said they assumed she was a mannequin at first.

“Nine forensic scientists have testified that Melissa Trotter was killed less than a fortnight (probably less than a week) before her body was found. In short: Larry Swearingen cannot be the killer,” he wrote.

“Texas is about to execute an innocent man.”

Indeed as has been widely reported it appears that Swearingen will be killed by the state of Texas this evening for a murder over twenty years ago that there is plenty of reason to believe he did not commit. He will be the twelfth person executed by the United States this year and the fourth in Texas as the AP reports:

Prosecutors said they stand behind the “mountain of evidence” used to convict Swearingen in 2000. They described him as a sociopath with a criminal history of violence against women and said he tried to get a fellow death row inmate to take credit for his crime.

Swearingen’s longtime appellate attorney, James Rytting, said he would ask the U.S. Supreme Court to halt the execution, arguing that lower courts “have failed to take into account the considerable amount of evidence of innocence.” Swearingen, who is also represented by the Innocence Project, has previously received five stays of execution.

To be clear Larry Swearingen does not make for a particularly sympathetic character in a story like this but that’s exactly the point. Even the worst among us do not deserve to be put to death for things we likely didn’t do no matter how many other bad things we may have done. It’s easy to lose sight of that sort of thing.

In 2013 Purcell published a stunning and detailed account of the murder and Swearingen’s conviction. It’s the type of reported piece had you never read such a thing before where you would go holy shit this is that thing journalism I’ve heard so much about. It would be like the first time you bit into an orange having long heard rumors about their existence.

Purcell’s reporting was based on numerous trips to Texas and combing over thousands of pages of documents and it’s rife with visceral details like this passage:

Visitors to the Lake Conroe R.V. and Campground are requested to check in at the office, which has an ancient Ms Pac-Man console and a stack of propane tanks at the door and a life-size cardboard cut-out of John Wayne by the desk. Each month, Larry Swearingen’s mother, Pam Martinez, pays $275 for her spot at the far end, where the warblers and nuthatches out-sing the highway. ‘Sticks and stones’ is written on the pendulum of her wind chime, which has lost every chime but one.

She has been living here for six years, ever since Joe Martinez, her second husband, died of cancer. The skin on her arms is mottled, red and purple, the result of two heart transplants and a failing kidney that will also need to be replaced soon. ‘I have buried two husbands, both my parents, and I’m ready to make sure my son is taken care of, before I leave this earth,’ she told me. ‘That’s why I fight so hard to stay alive. Him and I will go to heaven when it’s our time to go to heaven and he’ll be right there to be judged by the Lord, not by the people of Montgomery County.’

In short it’s what reporting should be in that it is factual yes but also written in the pursuit of justice.

I spoke with Purcell on the phone from London where he lives now reporting on and researching the American criminal justice system among other things. He explained his persistent doubt that Swearingen could have actually committed this crime. We also talked about Kurt Vonnegut a bit randomly.

Based on all the reporting you’ve done on the criminal justice system in America do you see this a particular egregious miscarriage of justice?

Is it an egregious case… Former Supreme Court Justice Antonin Scalia famously said that there has never been a case where the state has executed an innocent man in the United States of America. If you look at Texas alone, there have been several men executed when there were very grave doubts about the security of their convictions. I think at the very least we can say there are very grave doubts about the security of Larry Swearingen’s conviction.

Your piece walked through it all, but what were some of the potentially exonerating details that still stand out for you? The condition of the body for one.

There are very complicated aspects of this case but for me the most compelling evidence is the state of her internal organs. I talked to the forensic scientist who testified for the defense during the appeals process, Stephen Pustilnik, and he showed me what bodies look like after they’ve been outside at the temperatures Melissa Trotter’s body was outside, for three days. I think the phrase he used was “you’re green, bloated, and stinky.” And Melissa Trotter’s body was mistaken for a shop mannequin by the guys who found her in the forest. If you see a picture it’s really striking. You instinctively think there is no way that body has been there for a very long time.

Now, that’s just on the gut visceral level. But if you talk to people who really know what they’re talking about, forensic scientists, they will say based on years and years of professional experience these organs would’ve liquefied. The organs were intact enough for the doctor who did the autopsy to take slides of all her internal organs. If her body had been outside at those temperatures the organs would be liquid.

When was the last time you heard from Swearingen?

I haven’t spoken to him recently. I went down to visit him in Texas a couple of times. After the story was published in 2013 we stayed in contact. The best way to communicate with someone is called JPay. You can send emails to someone in the prison system in Texas and those emails will be printed out and taken to them in their cell, then he would write back to me. I would receive letters from Larry every couple of months about the latest in his appeal. But I haven’t actually spoken to him in five years.

He obviously does not seem like a good guy, but it’s easy for people reading things like that to conflate that with evidence of his guilt right?

I would say they’re very clearly two things. I get into this in the article, how uneasy it made me feel reading the punishment phase of the trial where these women testified he raped them or physically abused them. I’m not standing up for the good character of Larry Swearingen, in the article I’m setting out the evidence that he cannot have killed Melissa Trotter. You just cannot conflate these two things.

From the 2013 article:

Swearingen’s first wife, Michelle Cates, testified that he once held a knife to her throat and raped her. Cecilia Castellanos, a stripper who accompanied him back to Texas after they met in Florida, said he tied her up, gagged her, then forced her to have a bath and ‘put something on pretty’ before raping her. A former girlfriend, Laura Meier, told jurors that he handcuffed her, raped her and drove her around the forest at gunpoint.

I told Swearingen that reading the testimony made me acutely uncomfortable. Meier and Castellanos cried on the witness stand, and whatever reasons they might have had to embroider their accounts, however much pressure they were put under by prosecutors, the stories they told would make any reasonable person think that Swearingen was, at the very least, as Rytting described him to me, a ‘mean son of a bitch’ who beats and threatens women. It was hard to believe that all these documented allegations of sexual assault against him, over a period of several years, had been fabricated, even though none of them led to charges. Swearingen dismissed the women’s testimony as irrelevant: ‘I could be the worst person in the world. It still doesn’t make me a killer.’

He’s never been put on trial for any of the accusations that were made against him at the punishment phase of the trial, but he has been put on trial for the murder of Melissa Trotter, and the science says he cannot have killed her. And despite this powerful evidence that he’s innocent, the state of Texas seems determined to kill him.

That’s our criminal justice system in a nutshell isn’t it? Maybe this person didn’t do this, but they did something, so we’re going to get them.

I personally think that the logic of the adversarial justice system has a lot to answer for. Police and prosecutors decided quite early on that Larry Swearingen had committed this murder. Once they made that decision they’re locked into defending it and upholding that conviction at all costs. It seems quite rare to me that prosecutors will willingly just admit ‘You know, we got the wrong guy.’ If you read David Simon’s book Homicide about his experience with the police in Baltimore, he shows how everything is reduced to a numbers game during convictions, for prosecutors and cops arresting people. I feel like there’s some of that similar dynamic at play in this case. Prosecutor and cops decided Swearingen was the guy and they’re sticking to that no matter how much evidence is thrown at them to say they got the wrong guy.

There’s a political element too. The judge that tried Larry Swearingen in Montgomery County District Court, Fred Edwards, wrote on his campaign fliers that he had never had a capital conviction overturned in his courtroom. It’s just an extraordinary thing for a judge to write.

Our judges, I’m not sure how it is over there, we’re probably a little more bloodthirsty, but they have to present themselves as being hard on criminals. That’s how they get appointed or elected.

That’s not the case here. We don’t have elected judges, or at least they’re appointed by their peers. Basically, in order to be elected as a judge in Texas, one has to be tough on crime. I’m not aware of judges running for office in Texas saying ‘Elect me as the Republican candidate for judge in X town because I’m scrupulously fair, and I will make sure everyone gets a fair hearing on the merits of the case.’ They say ‘When I’m elected judge I’ll make sure the bad guys are locked up.’

I’m not sure if you’ve been paying attention, but there’s been a sort of small wave of somewhat liberal district attorneys being elected over here, in Philadelphia, and Boston where I live among other cities. There was the case of the police being shot the other day and the Trump appointed U.S. Attorney comes out and says this is what happens when D.A.s are easy on crime. Which of course all leads back to our massive incarceration problem.

Do you think the characterization of the U.S. as particularly brutal compared to the rest of the world is fair?

There are some facts you can’t get around: The U.S. locks up more people per capita than anywhere in the world. That’s just a fact. When I came back to London a year ago, I had spent my career as a reporter studying the U.S. criminal justice system, naively believing the U.K. justice system was less punitive and less unequal. Since coming back here I’ve been exposed to a lot more reporting, and I find many of the problems are similar. There are the same structural inequalities, the same racial inequalities. It’s easy as an outsider to think the U.S. criminal justice system is an outlier, and certainly it is terribly unjust on many levels, but the U.S. is certainly not unique in having those problems.

I take a very dim view of the justice system in this country, and it’s embarrassing to me. But there’s some hope, Bernie Sanders and Elizabeth Warren seem to be talking a lot about criminal justice reform in a way that’s heartening.

It’s baby steps right? There seems to be an interesting non-partisan coalition of people agreeing that it’s just insane to lock that many people up.

What are some other issues you’re monitoring right now that should be on our radar?

The thing that I’m personally interested in and have spent a lot of time researching is excessive sentencing, particularly of juveniles. There has been a really fascinating movement. Before Kennedy retired the Supreme Court was very clearly moving toward removing all the harshest punishment for juveniles. First they say juveniles can’t be sentenced to death. Then they say juveniles can’t be sentenced to life without parole for non-homicide crimes. Then they say they can’t be sentenced to mandatory life without parole. Then they say that has to be retroactive, so there are two thousand that have to be re-sentenced.

The science about the ways brains develop, and just simple human morality, say that we should never sentence someone who commits a crime before they’re eighteen to life without parole. Spend the rest of their days behind bars for one terrible mistake they did before they were eighteen. It’s fascinating in light of these Supreme Court decisions how states and cities are responding and in some cases they’re finding creative ways to sentence kids to eighty years in jail, seventy five years. Some places they’re taking a progressive view of it. It says a lot about the U.S. as a society how it’s responding to those decisions.

Do you think there’s any hope Swearingen is going to get another stay or is this it?

I think this is probably it. His last hope is the Supreme Court. They’ve already denied him once. His lawyers have gone back to them on a particular aspect of the case, the flecks of blood found under Trotter’s fingernails, saying this presents enough doubt about the security of his conviction and that the Supreme Court must stay his execution. But given the current composition of the court, and the stays it has denied quite recently to people on death row, I find it very unlikely they will grant a stay of execution for Larry Swearingen.

This is unrelated but I was just reading some of your stories and I saw you had a chance years ago to sit down with Kurt Vonnegut.

That is right that was one of my first big interviews in New York in 2005. That was a phenomenal privilege. It was so beautiful the way it worked out. I was producing an interview for BBC Radio. By producing I mean basically holding a microphone while one of their top interviewers flew in to interview him. I had been chasing him for a few months for the Sunday Herald and not really getting anywhere. After the BBC interview I said By the way, I’m also that journalist who’s been chasing you for an interview, and he was like, Yeah ok, come to lunch, no problem.

So I just went and had lunch with Kurt Vonnegut. It was just amazing.

Was he as advertised?

I express it much better in the piece than I could talking to you on the phone but he was absolutely lovely, and really an inspiring guy. Funny and insightful. Everything you could hope for having read his books.

I did a piece here recently with the Kurt Vonnegut Museum, and we talked about what he might think of this current era.

He’d passed so far into despair and cynicism that… yeah… But he’d find humor in it right?

I think that is all we can do(?)


From the Washington Post:

Swearingen released a statement to The Washington Post on Wednesday before his death that said, “Today the state of Texas murdered an innocent man.”

He criticized 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.”

Swearingen called The Post shortly before 6 p.m. Eastern time to say, “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 7 p.m. Eastern time. A state prison spokesman said he was put to death by lethal injection at 7:47 p.m. Eastern time. His final words were, “Lord, forgive them. They don’t know what they are doing.”