Texas: Larry Swearingen: Significant Development; Larry Swearingen, a death row inmate, has sued the state’s highest criminal court has sued the state’s highest criminal court and its nine judges, arguing that they have deprived him of the opportunity to prove his innocence - and is also asking a U.S. District Court judge to order DNA testing on several items of crime scene evidence, arguing that the results will show that somebody else strangled Melissa Trotter in 1998..."Montgomery County prosecutors have opposed Swearingen’s requests for further testing over the past decade, and the Court of Criminal Appeals has agreed with them multiple times, most recently in October 2015, citing a “mountain” of evidence indicating Swearingen’s guilt — including a pantyhose fragment found at Swearingen’s home that matched the portion missing from the hose used to strangle Trotter. In light of the evidence, the appeals court said in an 8-1 ruling, Swearingen was not entitled to additional testing based on a hypothetical hope that it would identify another suspect whose DNA profile could be found on a national crime registry.......... In the lawsuit, however, Benjet said the items Swearingen wants checked are today routinely tested for DNA before trial. In fact, changes to state law would now require them to be tested before seeking the death penalty, he said. “That should entitle him to DNA testing,” Benjet told the American-Statesman."

STORY: "Death row inmate sues state’s highest criminal court over DNA testing," by reporter Chuck Lindell, published by The American-Statesman, on October 31, 2016. (Chuck Lindell covers legal issues, politics and state's agencies for the Austin American-Statesman);

SUB-HEADING: "Inmate says Court of Criminal Appeals has deprived him of the right to prove his innocence."

SUB-HEADING:  "Court has sided with prosecutors who say the totality of evidence supports guilt."

STORY: "A death row inmate has sued the state’s highest criminal court and its nine judges, arguing that they have deprived him of the opportunity to prove his innocence. Lawyers for death row inmate Larry Swearingen argue that the Court of Criminal Appeals adopted a flawed and unconstitutional interpretation of a state law intended to allow inmates to seek DNA tests, particularly if modern testing techniques were not available when they were convicted. In a federal lawsuit filed Friday and served on the Texas court Monday, Swearingen asked U.S. District Judge Lee Yeakel of Austin to rule that the Texas court violated his constitutional rights by needlessly restricting his access to DNA tests. The lawsuit also asked Yeakel to order DNA testing on several items of crime scene evidence, arguing that the results will show that somebody else strangled Melissa Trotter in 1998. The 19-year-old college student’s body was discovered one month later in a national forest near Conroe in East Texas. The items Swearingen, 45, wants tested include the torn pantyhose used to strangle Trotter, her clothes, a rape kit and four cigarette butts found near her body. The clothing in particular should still carry skin cells that could identify the killer, said Bryce Benjet, a lawyer with the Innocence Project in New York who filed Swearingen’s lawsuit. “Testing can both determine whether an innocent man is in prison and identify the real rapist and murderer, who may still be at large,” Benjet said in the lawsuit. Montgomery County prosecutors have opposed Swearingen’s requests for further testing over the past decade, and the Court of Criminal Appeals has agreed with them multiple times, most recently in October 2015, citing a “mountain” of evidence indicating Swearingen’s guilt — including a pantyhose fragment found at Swearingen’s home that matched the portion missing from the hose used to strangle Trotter. In light of the evidence, the appeals court said in an 8-1 ruling, Swearingen was not entitled to additional testing based on a hypothetical hope that it would identify another suspect whose DNA profile could be found on a national crime registry..........  In the lawsuit, however, Benjet said the items Swearingen wants checked are today routinely tested for DNA before trial. In fact, changes to state law would now require them to be tested before seeking the death penalty, he said. “That should entitle him to DNA testing,” Benjet told the American-Statesman.

The entire story can be found at:

http://www.mystatesman.com/news/news/death-row-inmate-sues-states-highest-criminal-cour/ns2Cm/

See previous post - February 10, 2009 - of this Blog at the link below: "Since his conviction, Swearingen has secured testimony from at least three current and former Chief Medical Examiners and another forensic pathologist who have concluded that Melissa Trotter’s body had been in the woods no less than 3 and no more than 15 days before it was discovered on January 2, 1999. Dr. Glenn Larkin said Melissa’s body had been in the woods and deceased no more than 3 to 4 days. Dr. Louis Sanchez concluded the body had been in the woods for 10 to 15 days but was “some place else before that.” Dr. James Arends, an entomologist, stated that the body was “stored someplace cold” [“frozen”) before being placed in the woods based on different decomposition of the body from one end to the other. Finally, and more recently, Dr. Lloyd White concluded Melissa had been dead no more than two or three days when her body was found. This post-conviction forensic evidence is bolstered by an October 31, 2007 affidavit from former Harris County Chief Medical Examiner Joyce Carter, who testified at Swearingen’s trial that Melissa’s body had been in the forest for approximately 25 days. Carter’s testimony supported the State’s theory that Swearingen killed Melissa on December 8 and dumped her body in the forest that same day. Dr. Carter’s 2007 affidavit states she re-examined the autopsy evidence and changed her opinion. She states that had she been given additional forensic evidence that was not available to her prior to trial, she would have concluded that Melissa’s body had been in the forest no more than 14 days. Since Swearingen was arrested on December 11, 1998 and in jail at the time these forensic experts state Melissa’s body was deposited in the Sam Houston State Forest, his attorney and the New York Innocence Project argue these experts make a compelling case of Swearingen’s “actual innocence.”

http://smithforensic.blogspot.ca/2009/02/larry-swearingen-case-part-14-is-larry.html

PUBLISHER'S NOTE:  I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:  http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html  Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy; Publisher; The Charles Smith Blog.

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