Wednesday, February 5, 2014

Bulletin: Larry Swearingen; Texas; He suffers a setback as Texas Court of Crininal appeals denies his motion for DNA testing with an impassible "catch-22".

PUBLISHER'S VIEW: (Editorial):  How bizarre! The appeal court has essentially ruled that Larry Swearingen must prove biological material exists before he can be permitted to conduct the DNA tests. As the Austin Chronicle puts it "without testing there can be no testing." It's a catch-22 Texas style which has no place in a criminal justice system where the applicant faces death if he cannot prove his innocence with the scientific tools that are now available. Hopefully this decision will not be the last word.

Harold Levy. Publisher. The Charles Smith Blog.

STORY: "CCA (Court of Criminal Appeals)  denies DNA testing in Swearingen case: Death row inmate doesn't have right to test murder weapon for DNA," by reporter Jordan Smith, published by the Austin Chronicle on February 5, 2014.

GIST: "Death row inmate Larry Swearingen cannot prove that biological materials exist on evidence connected to the 1998 murder of Melissa Trotter – including on the alleged murder weapon – and therefore is not entitled to DNA testing of those items, the Court of Criminal Appeals ruled this morning.  Swearingen was convicted and sentenced to die for the 1998 murder of 19-year-old Trotter, a Montgomery County community college student who disappeared from her college campus on Dec. 8, 1998. Her body was found several weeks later, by a group of hunters, in the Sam Houston National Forest near Lake Conroe.........In ruling against Swearingen on Wednesday, Judge Paul Womack wrote for the unanimous court that a district court ruling that last year approved the requested DNA testing would be overturned because Swearingen "cannot prove the existence of biological material" that could be tested. Although the defense presented to the district court expert testimony that biological evidence would "likely" be found on the pantyhose 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."In other words, without testing, there can be no testing. The court's conclusion also precludes any testing of cigarette butts found near Trotter's body or of Trotter's clothes absent a showing that biological material exists on each item. Only finger nail scrapings taken from Trotter are considered "biological evidence per se" and thus not restricted by the need to prove DNA exists before testing can be done. Only some of the collected scrapings were tested, and material found from under one of Trotter's fingernails produced DNA from an unknown male. Still, that result is not enough to convince the court that if additional testing were to be performed it would do anything to convince a jury of Swearingen's innocence."

The entire story can be found at:

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