Execution Stayed in Texas, Should Allow for DNA Testing

Larry Swearingen has been on Texas death row for eight years for a murder he has always said he didn’t commit. On January 26, the federal Fifth Circuit Court of Appeals ordered that his execution be delayed so his appeals can be considered. Swearingen has been seeking advanced DNA testing that could prove his innocence or guilt – and possibly identify the real perpetrator of the crime – and the Innocence Project worked with Swearingen’s attorneys to seek a stay so testing could be conducted. The delay should provide ample time for Texas authorities to conduct DNA testing and review other evidence suggesting that Swearingen could not have committed the crime.

In the last few days, calls have been growing for a stay in the case so DNA testing can be conducted. The Innocence Project has asked both Montgomery County District Attorney Brett Ligon and Governor Rick Perry to allow DNA testing in the case before taking the risk of executing Swearingen for a crime he didn’t commit.

On January 25, an editorial in the Houston Chronicle called for DNA testing in Swearingen’s case:

Dr. Glenn Larkin, a retired forensic pathologist who reviewed the case, told Texas Monthly that “no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.”

… Governor Perry should halt the execution to allow more testing that may exonerate the convict and point toward an at-large killer.

Read the full editorial here

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Swearingen was convicted in 2000 of killing a 19-year-old woman in 1998 and disposing of her body in a forest, where it was found nearly a month after her disappearance. A medical examiner testified at Swearingen’s trial that the body could have been decomposing for a month. Her testimony was vital to Swearingen’s conviction because he was arrested and jailed for traffic warrants just three days after the victim disappeared. The medical examiner has since changed her testimony in light of new examinations, saying it was not possible for the victim to have been killed and left in the forest any longer than two weeks before her body was discovered. This would mean Swearingen was incarcerated at the time the crime occurred.

In addition to this important new evidence, further DNA testing on evidence from the crime scene could conclusively prove Swearingen’s innocence or guilt. Blood collected from under the victim’s fingernails excluded Swearingen before his trial, but this unknown profile has not been checked in a DNA database for eight years. At the time of his trial there were 460,000 DNA profiles of convicted offenders in the database, today there are more than 6.4 million. Other items from the crime scene were never subjected to DNA testing and new technology could confirm that the person whose DNA was under the victim’s fingernails was the perpetrator.

The Innocence Project’s recent letter to District Attorney Ligon said DNA testing was necessary to address “the fundamental question of whether the correct person was convicted and sentenced to death for this brutal crime” and urged an immediate stay “because doing otherwise could undermine the public’s confidence in our criminal justice system.”

And a January 21 column by Lisa Falkenberg in the Houston Chronicle agreed with these conclusions:

Swearingen should be granted another stay so that, at least, the new evidence and requests for DNA testing can be considered.

Yes, it will be another painful delay for the victim’s parents. But it could also keep the state of Texas from executing a man who could very well be innocent while the real killer escapes justice.

Read the full column here

. (Houston Chronicle, 01/21/2009)