Court again rejects murderer’s DNA bid

Man killed teen 16 years ago, wants new trial

For the fifth time, Texas’ highest criminal appeals court has rejected a request for additional DNA testing for Larry Ray Swearingen, the death row inmate convicted 16 years ago in the kidnapping, rape and strangulation of a Montgomery County college freshman.

In a 6-3 decision Wednesday, the court ruled that no further DNA testing should be done because even if it found another DNA donor, it alone would not be enough to overcome the “mountain of evidence” that led a jury to convict Swearingen for the murder of 18-year-old Melissa Trotter.

“Once again, Swearingen cannot establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing,” the opinion said.

‘Path to justice’

Swearingen’s attorneys with the New York-based Innocence Project have requested DNA testing of several items, some of which have been previously tested: fingernail scrapings from the victim, rape kit (which a state lab said found no sperm present), some stray hairs, cigarette butts, the pantyhose ligature (half of which was found around the victim’s neck and the other half at Swearingen’s trailer) and clothing.

Montgomery County District Attorney Brett Ligon called the latest decision “yet another unnecessary step in the path to justice in this case.” His staff has stressed the potential for cross-contamination of the evidence with stray DNA when it was handled, tested and stored for the past decade.

To achieve closure for the victim’s family, Ligon said his office has offered to do the additional DNA testing since 2013 — if Swearingen’s attorneys’ would agree the findings would not alter the outcome of the case.

“It appears Swearingen would rather postpone his execution than seek the truth, because he declined our offer, and Judge Kelly Case has played along,” Ligon said, referring to the Montgomery County district judge who had approved the testing and whom prosecutors have filed — and won — numerous appeals against.

Bryce Benjet, speaking for the Innocence Project, said the prosecution was agreeable to the testing only if the execution were also allowed to proceed.

‘Never worked out’

“We tried to work out some sort of agreement that the prosecution would not be bound by some sort of innocence finding from the DNA results, but it never worked out,” he said.

Benjet pointed out that Swearingen’s case has been used to persuade state lawmakers to expand access to DNA testing. This includes a revision in the law that took effect in September that removed the hurdle of proving biological material exists that might be invisible to the eye such as saliva, sweat or skin cells.

The new statute requires only that there be a “reasonable likelihood” that it exists, The Innocence Project attorneys are mulling over whether to file yet another motion to seek DNA testing under this revised statute.

“We’re obviously still reviewing the opinion, and take note that three of the judges were not in agreement with the majority,” Benjet said.

Case has another order pending to allow the testing of evidence in the Swearingen case to determine if any biological material exists that could be used for DNA testing, Benjet said.

Montgomery County prosecutors plan to file a writ of mandamus to ask the appellate court to stop this testing, too.

“The appellate court has already ruled that the judge has no authority to do this,” said Montgomery County prosecutor Jason Larman. “Given the long history of this case, we are always expecting some new kind of motion.”

Family informed

He said Trotter’s family has been told of this victory and hopes to one day see the case come to a conclusion.

But Benjet said courts must take death penalty cases more seriously when a man’s life, and not just his liberty, is at stake.

“It makes no sense in 2015 for any government to execute someone without access to the best forensic evidence possible,” he said.