The Court of Criminal Appeals has ruled that Texas death row inmate Larry Swearingen does not have the right to test evidence in his case for biological materials because he cannot prove that there are any biological materials present.  Larry Swearingen was convicted of the murder of Melissa Trotter, 19, a community college student who disappeared from her college campus on December 8, 1998.  Her body was found several weeks later in the Sam Houston National Forest by hunters.  Swearingen was sentenced to death.

Swearingen was seen by witnesses with Trotter on campus not long before she disappeared.  He began seeking DNA testing 10 years ago.  Among the never-before-tested items are two lengths of pantyhose (one used to strangled Trotter and the other found at a home Swearingen previously rented with his wife).

The state maintains that a visual comparison of the two items proves that they came from one pair of hose.  Neither were subjected to any other analysis.  In the ruling against Swearingen, Judge Paul Womack wrote for the unanimous court, that the DNA testing that was approved last year by a lower court, is being overturned because Swearingen “cannot prove the existence of biological material.”  Although the defense presented to the district court expert testimony that biological evidence would “likely” be found that is not enough to secure testing, the court ruled.

“[W]e have explicitly held that appellee must prove biological material exists and not that it is merely probable.”

The court’s decision also precludes any testing of cigarette butts found near Trotter’s body or of Trotter’s clothing absent any proof that biological material exists on them.  Only fingernail scrapings taken from Trotter are being considered “biological evidence per se” by the court and thus there was no need for Swearingen to prove biological material was present before testing.  The fingernail scrapings produced DNA that did not match Swearingen.  That result is not enough to convince the court that further testing should be done.

“In order to be entitled to DNA testing,” Womack wrote for the court, “[Swearingen] must show by a preponderance of the evidence (51%) that he would not have been convicted if the exculpatory results were available at trial.”

The court seemed to have paradoxical reasoning to reject the request, the court ruled that without testing for the presence of biological materials to prove they are present, there can be no testing of the biological materials and without showing with 51% certainty that the jury would have found a different verdict if they could see the new DNA evidence (which hasn’t been tested), a person is not entitled to test the evidence in their case.

The court noted that the unidentified profile was presented to the jury in Swearingen’s original trial and had no effect on the jury, “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,” Womack wrote, ”The jury chose to believe that the foreign DNA either was contamination or that it came from outside the context of the crime.”

During the hearing, prosecutor Bill Delmore argued that the mountain of circumstantial evidence against Swearingen was so convincing that even if the other male DNA found under the victim’s fingernails were matched to a serial killer, he would conclude that Swearingen was still involved.

“Nothing will ever convince me of his innocence,” Delmore said.

The question remains as to why a prosecutor would not want a DNA test, especially in a death penalty case?  If they are so certain of guilt, then they would have confidence that the test would come back as the person accused.  But, they do not want the test done, why?

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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