Standards of Evidence In Death Row Cases

Before she was executed in 2005, Francis Newton was one of Texas’ longest living residents on Death Row. She had been there for seventeen years, and she protested her innocence every one of her days. The facts of the case are thus: Francis Newton’s husband and two young children were shot to death. Ms. Newton had recently taken out insurance on the victims. Four days after the murder, she filed her insurance claims. The prosecution asserted that Newton killed her family for the insurance, and a jury convicted her.

I recently came across this letter from the ACLU pleading with Gov. Rick Perry for clemency while Newton was on Death Row. The interesting part was this:

What makes Ms. Newton’s case even more disturbing is that the evidence against her is largely forensic evidence.

Wait, what? Usually supporters claim a case is “circumstantial” and thus you can’t convict (or execute) because there is no hard evidence that the person committed the action. But in this case, the ACLU is claiming that they only have hard evidence?

There are no eyewitnesses to the crime and Ms. Newton has maintained her innocence from the beginning.

Interesting non sequitur.

The forensic tests for the state’s evidence were conducted by the now thoroughly discredited Houston Police Department Laboratory.

In the ACLU’s defense, the Houston Police Department Laboratory is a nightmare. Over 7,000 rape kits are missing, among other horrors. In fact, here is a sampling of Houston Chronicle headlines regarding our shameful forensic lab:

July 29, 2011: “HPD crime lab faces more heat; Former supervisor testifies she quit over accuracy of alcohol tests.”

July 19, 2010: “District attorney calls for emergency DNA lab; Houston’s backlog of cases keeps growing.”

January 27, 2010: “HPD lab faces 3rd backlog problem; 300 cases are in need of firearm forensics.”

December 13, 2009: “Prints and problems; HPD’s fingerprint scandal reminds us how much we need an independent crime lab.”

April 25, 2009: “Another crime lab bungle surfaces; Prosecutors to ask that man who has spent 22 years in prison be freed on bail. Richard could be 4th man cleared after crime lab errors.”

January 26, 2008: “HPD again shuts down crime lab’s DNA unit; Move follows resignation of division’s leader in cheating probe.”

December 12, 2007: “HPD lab analyst indicted on theft, tampering charges. His suspension triggered a review of 200 narcotics cases he’d handled.”

June 17, 2007: “‘Troubling’ Cases Surface in Report on HPD Crime Lab; 1991 conviction for rape, murder has drawn the most concern.”

January 5, 2006: “HPD Lab Probe Details More Lapses; Revelations show 2 divisions’ problems amount to ‘near-total breakdown.’”

December 18, 2005: “HPD’s lab’s troubles predate DNA testing; Experts’ review finds a pattern of problems in 1980s studies of blood samples.”

June 5, 2005: “Bitter pills; HPD analysts faked drug evidence in four cases. How much more fraud has gone undetected?”

November 5, 2003: “DNA evidence destroyed; pardons called possible.”

June 25, 2003: “HPD ignored warnings, ex-lab man says; Retired official says he cited ‘train wreck.’”

April 3, 2003: “HPD chief proposes independently run crime lab.”

June 5, 2002: “Rape Kits; HPD strives to end ‘embarrassment’ of untested DNA.”

Furthermore, the type of evidence used against her is coming under increasing scrutiny. For instance, the scientific basis underlying the testimony by the ballistics expert that identified the murder weapon has frequently proven to be erroneous.

The problem with this accusation is that it isn’ specific to Newton’s case and being “frequently” wrong isn’t the same as being “always” wrong.

Similarly, expert testimony regarding traces of material found on her clothing as proving that Ms. Newton fired a weapon is open to misinterpretation.

Again, the ACLU did Newton no favors by not explaining what that other interpretation might be. What they are talking about here is the fact that Newton’s dress showed gunshot residue on it. If she didn’t actually fire the weapon that killed her family, it would be in ACLU’s best interest (not to mention Newton’s) to put forth a new argument here. This isn’t a briefing to the Court, meaning they can introduce new evidence any time they wish. So spill it.

Additionally, the reliability of “future dangerousness” testimony is also coming under scrutiny as well by the scientific community.

Again: vague. If the ACLU wanted to put forth evidence that Newton would not have been a future danger if her sentence was commuted to life imprisonment, this would have been the time to do it. Instead, the result is a flaccid, not-very-well written and completely unconvincing letter. (The author of the letter, Rachel King, passed away from cancer in 2008.)

I really don’t have an opinion about Newton’s guilt or innocence. I’m extremely skeptical of any story the prosecution puts forth, but in this case the evidence does seem to support guilt.

Another Texas case (Texas is rich in oil, natural gas, and executions) is the horrible murder of a nineteen year old college student, Melissa Trotter. The person on death row for that crime, Larry Swearingen, swears he is innocent. (John T Floyd has a good re-cap of the case here) As Floyd points out, a lot of the forensic evidence points away from Swearingen. However, it is one piece of evidence that keeps me thinking that he’s guilty.

Melissa Trotter was strangled with a cut-off leg of pantyhose. Four days after the crime, police found the a pair of pantyhose in Swearingen’s trash, with one leg cut off. This evidence is circumstantial, but is powerful enough for me to think guilty, guilty, guilty. There might be an innocent explanation for it, but I haven’t heard one. When I think about the supposed cell phone evidence (some say that his cell phone records prove he was nowhere near her during the time of the crime), I feel that tug of reasonable doubt. But the pantyhose keep tipping me right back over.

Another issue with the Swearingen case is that his attorneys are trying to oversell the “good” condition of Melissa’s body when it was discovered. Melissa was discovered in a forest in Montgomery County, and a person who found her said she was in such good shape he thought she was a mannequin. The reason this is important is because it establishes time of death. If Swearingen can get the time frame right, he can claim he was already in jail during the time the crime occurred (he was picked up for traffic tickets.) But I read Trotter’s autopsy report and she was not in pristine condition. Her eyes had been liquified. Her tongue was black. Numerous parts of her body were completely decomposed. So it was not as if she had been thrown into the forest on the morning Swearingen had been picked up for traffic tickets. There was time when she was lying in that forest and he was free.

I recognize his lawyers will try to sell whatever evidence they can. But by dismissing the pantyhose evidence (“it’s just circumstantial!”) and really stretching and bending that timeline, I become more suspicious of their case. I want a lawyer to tell me why those pantyhose were in Swearingen’s trash. I know they don’t have to. But I would like an explanation, and if I were on that jury, I would desperately want the attorney to give me some completely rational, non-murdery reason for it.

I’m curious about the standards of evidence. Does the ACLU now believe juries require rock-solid forensic evidence plus circumstantial evidence in order to convict? Will that become the new standard?

Would the pantyhose be enough to convince you to convict? What about the ballistics evidence on Francis Newton’s skirt? Would either of these two things be enough to send a person to death row?

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  1. I could probably convict based on the gunshot residue on clothing. If Melissa Trotter’s DNA was on the pantyhose found in Swearing’s trash, I would have no problem convicting and sending him to Death Row.

  2. Cara Ellison says:

    I’ve not found anything that says one way or the other whether the stockings from the trash have Melissa’s DNA on them, but I agree – if they do, it connects the evidence to both Swearingen and Melissa Trotter and that would be very hard for me to overlook.

  3. The Melissa Trotter case is interesting reading. For the medical examiners who gave their assessment of when the body was in the woods and the time of death, I would like to know their degree of confidence in their conclusions. The judges made a very good point that the expert’s have differing opinions as to how long the body was in the forest. Therefore, at least one of them MUST be wrong. And if one expert is wrong, the it’s plausible that another expert could be wrong.

    Dr. Lloyd White concluded Melissa had been dead no more than two or three days when her body was found, yet the contents of her stomach match the food she ate on December 8. I don’t understand that.

  4. Capital punishment puts some unique pressures and distortions on the justice system. When I worked for an appeals court, the “death cases” always got special handling. You’d think a life sentence would be pretty serious, too, but somehow death cases got the bulk of the attention, and altogether cost a lot in both dollars, the attention of smart people, and errors made. Yet they recently demonstrated for the first time (if I understood it right) that we had in fact executed an innocent man on, uh, forensic evidence (a really awful case where the guy was convicted for killing his own kids) and no one seemed to say much about it. Yeah, it happened in Texas.

  5. Another interesting case is that of Georgia inmate Troy Davis who is scheduled to be executed in a matter of days. What happens when key eyewitness testimony is recanted?

    The following article is sketchy on facts but gives an introduction to the case.;contentBody

    Defense attorneys said seven of nine eyewitnesses have recanted all or part of their testimony. What exactly was recanted? How strong was the testimony of the remaining two witnesses? Was the testimony classified as direct evidence or circumstantial evidence?

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