Posted: January 17, 2013 12:00 AM
Texas Legislature Expanded the DNA Testing Statute in Direct Response to Earlier Unsuccessful Efforts to Get Testing
Contacts: Paul Cates, 212.364.5346, firstname.lastname@example.org
Alana Massie, 212.364.5983, email@example.com
(CONROE, TX – January 17, 2013) — The Innocence Project will file a motion today on behalf of Texas death row inmate Larry Swearingen seeking DNA testing of crime scene evidence that could support his longstanding claims of innocence. Swearingen, who is scheduled to be executed on February 27, has been requesting the testing of the ligature used to strangle the victim, her fingernail scrapings, clothing and other evidence for years. As the motion notes, the current DNA testing statute was expanded by the Texas legislature in direct response to Swearingen’s unsuccessful requests for testing.
“The Texas legislature has made it clear that DNA testing should be allowed when there is a possibility it could help prove innocence, and the testing Mr. Swearingen is seeking could shed light on many unanswered questions in this case,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “We’re hopeful the prosecution will consent to the testing before it is too late for Mr. Swearingen.”
Swearingen was convicted in 2000 of the 1998 murder of a 19-year-old college student Melissa Trotter. Prior to today’s filing, Swearingen filed three unsuccessful motions for DNA testing, most recently being denied by the Texas Court of Criminal Appeals in 2010 due to a restrictive interpretation of the DNA access statute. It was that interpretation that prompted the Texas legislature to amend the law in 2011 to specifically address the reasons why Swearingen’s earlier requests for DNA testing were denied. Chapter 64 of the Texas Code of Criminal Procedure now provides the broad right to conduct DNA testing on essentially all crime scene evidence that can yield probative evidence of innocence.
The evidence that Swearingen is seeking to test includes the ligature used to strangle the victim, fingernail scrapings from the victim, items of the victim’s clothing that were bunched and torn by the perpetrator of the crime, cigarette butts found near the body and torn pantyhose found in the trash outside Swearingen’s home.
Witnesses said they saw Trotter with Swearingen at her college campus the afternoon she disappeared on December 8, 1998, although others suggested that she was with someone else. Swearingen has admitted to seeing her that day for lunch but testified that he left her at the college and has maintained his innocence of the murder since his arrest nearly 13 years ago. Three days after Trotter was reported missing, Swearingen was taken into custody for traffic warrants and has remained incarcerated ever since. Trotter’s body was discovered nearly a month later, on January 2, 1999, in Sam Houston National Forest, with a piece of a pantyhose leg used to strangle her tied around her neck.
Although phone records and statements from witnesses prove that it was very nearly impossible that Swearingen could have left the college, murdered Ms. Trotter in the National Forest and returned home at the time prosecutors claimed, the state’s case was bolstered by the fact that police recovered one leg of a pair of pantyhose in the trash near Swearingen’s trailer four days after Trotter’s body was found. (Police failed to find the evidence in two previous searches.) Five forensic experts have raised questions about Swearingen’s guilt given his incarceration and the decomposition of the body. The medical examiner who testified at trial that Trotter’s body could have been left in the forest by Mr. Swearingen on the date of her disappearance has since changed her opinion twice, indicating in one affidavit that Ms. Trotter may have been alive as early as two weeks before her body was discovered.
“The evidence Mr. Swearingen is seeking to test could provide critical information about who killed Melissa Trotter. This is evidence that would routinely be tested if the case was investigated today, and any one of these pieces of evidence could produce a DNA profile that could lead to another perpetrator,” said Bryce Benjet, staff attorney with the Innocence Project. “Regardless of where you stand on the death penalty, I think we can all agree that we should be absolutely certain of guilt before putting someone to death.”
February 27th is the fourth execution date to be scheduled for Swearingen since 2007. He has been spared from lethal injection three times after receiving court-imposed stays based on strong evidence pointing to Mr. Swearingen’s innocence. Eighteen people have been proven innocent and exonerated by DNA testing in the United States after serving time on death row. They were convicted in 11 states and served a combined 229 years in prison – including 202 years on death row – for crimes they didn’t commit.
A copy of the motion that will be filed today is available at http://www.innocenceproject.org/files/imported/swearingen_motion_for_dna_testing_2013-2.pdf and the exhibits & index are available at http://www.innocenceproject.org/files/imported/swearingen_dna_motion_exhibits_and_index-2.pdf.
Swearingen is represented by Phil Hilder and James Rytting of Hilder & Associates. The Innocence Project is working with Swearingen’s attorneys in his efforts to secure DNA testing.
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