Texas Court of Criminal Appeals Denies DNA Testing in Death Row Case

More than a year after the Innocence Project filed a motion on behalf of Texas death-row inmate Larry Swearingen, seeking DNA testing of crime scene evidence that could support his longstanding claims of innocence, the Court of Criminal Appeals ruled that he is not entitled to DNA testing.

Swearingen was convicted in 2000 of the 1998 murder of a 19-year-old college student, Melissa Trotter. Her body was discovered in the Sam Houston National Forest nearly a month after she was reported missing. A piece of a pantyhose leg had been used to strangle her.

Swearingen was seeking to have DNA tests conducted on the piece of the stocking that was used as the murder weapon, as well as on 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. According to the court’s ruling, Swearingen was denied testing because the court claims it could not be sure that biological materials connected to Trotter’s murder would be found on the crime scene evidence, including the strip of pantyhose. The court’s conclusion also precluded any testing of cigarette butts found near Trotter’s body or of Trotter’s clothes.

The Austin Chronicle reported that scrapings taken from under one of Trotter’s fingernails previously produced DNA from an unknown male but that result did not convince the court that additional testing should be conducted. Judge Paul Womack wrote in the decision that Swearingen must be able to prove he wouldn’t have been convicted if the exculpatory results were available at trial. According to the Chronicle, Womack wrote: “Since the jury already was aware that an unidentified male’s DNA was found under the victim’s fingernails, we fail to see how other such results would have changed its verdict. . . . The jury chose to believe that the foreign DNA either was contamination or that it came from outside the context of the crime.” In short, Swearingen “cannot show that new testing would lead to a different result.”

In response to the decision, Innocence Project Staff Attorney Bryce Benjet noted, “Given that the Texas Legislature specifically amended the state’s DNA statute so that Mr. Swearingen could conduct DNA testing that might prove his innocence, we are puzzled by the court’s decision. As we’ve seen time and again, DNA testing can not only prove innocence but also helps to identify the real perpetrators of crimes who may be at large committing other crimes. We remain convinced that Mr. Swearingen meets all the requirements required by the statue and look forward to making our case before the district court judge.”

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