Bill Delmore, assistant district attorney in Montgomery County, said Wednesday that state district Judge Fred Edwards told lawyers in an in-chambers meeting that he intends to rule in favor of the state, which disputes Swearingen's claims of innocence. Edwards asked the district attorney's office to prepare recommendations that will be sent to the Texas Court of Criminal Appeals, which will ultimately decide whether to grant Swearingen's request for a new trial.
"We expected a railroad job in the 9th district court, and I believe we're getting it," said James Rytting, Swearingen's lawyer, adding that Edwards made his decision before transcripts from a two-week-long hearing on the scientific evidence in the case were complete. "The judge, I believe, has had his mind set from the beginning."
Swearingen, 41, was convicted of kidnapping, raping and murdering 19-year-old community college student Melissa Trotter in Conroe after she disappeared on Dec. 8, 1998. Her body was discovered 25 days later, on Jan. 2, 1999, by hunters in the Sam Houston National Forest.
Since Swearingen's 2000 conviction, though, reports from more than a half-dozen scientists have concluded that evidence from Trotter's decomposing body indicate that he wasn't the killer. Her body, they reported, had not been dead for 25 days as prosecutors asserted. Their examinations of Trotter's organs showed that she was killed while Swearingen was already behind bars for a different offense. He was arrested on unrelated outstanding warrants three days after Trotter disappeared.
Last year, the Court of Criminal Appeals stayed Swearingen's execution and ordered the Montgomery County trial court to hear the scientific evidence in the case. During that hearing in February, lawyers for Swearingen presented experts, including former medical examiners, who testified that Trotter's body had not been in the forest for two weeks when she was found. Had Swearingen killed Trotter before he went to jail, her body would have been badly decomposed after spending so much time exposed to the elements, the defense argued.
"The overwhelming evidence of innocence has been swept under the rug through irregular judicial proceedings," Rytting said.
Delmore argued, however, that there was nothing unusual about the judge's actions in the Swearingen case. He said judges regularly ask the winning side of a case to draft final recommendations. Delmore said he has submitted a 12-page recommendation outlining prosecutors' findings that Swearingen is guilty and rejecting claims of innocence based on the scientific evidence. Judge Edwards has not yet signed the document, but has indicated he will.
"He was basically doing the opposing counsel a favor, because they avoided wasting a bunch of time preparing findings that weren't going to be signed," Delmore said.
During the hearing in February, the state presented experts who refuted scientists for the defense and said that the girl's body could have been in the forest for more than three weeks. Among the state's witnesses was the elderly Dr. Werner Spitz, who also testified in the high-profile trials of Casey Anthony and O.J. Simpson, among others.
"It's perfectly plausible, based on all the scientific evidence, that she was killed on the date of her disappearance," Delmore said. "And there's no reason why Swearingen couldn't have committed the offense."
Rytting said he plans to file objections to the judge's recommendations. And he said he hoped the Court of Criminal Appeals would find little credibility in Edwards' findings.
"I think that the Texas Court of Criminal Appeals will look at this closely," Rytting said. "And they will realize the evidence of innocence is overwhelming."
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