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Swearingen Seeks DNA Testing

Execution scheduled for late February
Jordan Smith, 7:42am, Fri. Jan. 18, 2013
Melissa Trotter

A motion filed yesterday in Montgomery County seeks DNA testing on several items of evidence related to the 1998 murder of 19-year-old college student Melissa Trotter, with just more than a month to go before her alleged killer, Larry Swearingen, is scheduled to die for the crime, which he maintains he did not commit.

At issue is whether the court will order testing on key pieces of evidence that Swearingen's lawyers – including Houston's James Rytting and now Bryce Benjet, who recently joined the New York-based Innocence Project – say will prove once and for all the he is innocent of the crime.

Trotter was last seen on Dec. 8, 1998, on the campus of the Montgomery community college. Her body was found on Jan. 2, 1999, abandoned in the piney woods of the Sam Houston National Forest. Although it took more than three weeks to find her, police early on suspected Trotter had been murdered and that they knew who was responsible: then-27-year-old married electrician Swearingen, who had a moderate history of trouble with the law and who, it turns out, was acquainted with Trotter and was among the last to see her alive. Swearingen was arrested and jailed on outstanding warrants just three days after Trotter went missing; he has remained behind bars ever since.

Among evidence that has never before been tested is a length of pantyhose, used to strangle Trotter and found knotted around her neck, scrapings taken from fingernails on one of her hands, and cigarette butts found near her body. Scrapings from her other hand were previously tested and an unknown male profile was found. That profile was supposed to be run through the national DNA database, though Swearingen's defenders are not sure if that has been done or what the outcome might have been. The motion seeks to have any DNA pulled from the as-yet untested items uploaded into the national database.

Swearingen has maintained his innocence. In addition to the evidence that needs to be tested for DNA, Swearingen's lawyers say that recently discovered tissue samples, taken from Trotter during her autopsy and preserved in a paraffin block, demonstrate that Swearingen could not have killed the coed. Indeed, those histology samples reveal lung, vascular, and heart tissues that are intact and well-preserved, not at all what one would see in a body that had been left in a forest for three weeks, a handful of influential Texas pathologists have explained.

Based largely on that contention the Court of Criminal Appeals last year halted Swearingen's scheduled execution – his third date with death – and ordered an evidentiary hearing to explore the scientific evidence.

Indeed, the science at issue is basic and is implicated in thousands of death investigations every year across the state, particularly as it relates to the so-called "postmortem interval," or more simply a date of death, pathologists have argued. The state countered at the late February 2012 hearing that histology is not good for such purposes, offering that entomology is a far better predictor – to the consternation of forensic pathologists from Galveston, Houston and Fort Worth, each of whom testified that Trotter's tissue reflected a PMI that could not have been more than two weeks, at best, prior to when she was discovered – meaning, well after Swearingen was already jailed.

The judge presiding over the 2012 hearing, Fred Edwards (who also presided over the original trial, but has since left the bench), failed to hold a hearing to determine what testimony from which scientific "experts" would be admitted, and failed also to require the parties to each provide findings of fact and conclusions of law based on final transcripts of the hearing, as required by statute. Instead he called a hearing in his chambers in June, said that he had determined that the science presented by the state was valid and all of the scientific evidence offered by the defense was "junk." He ultimately signed off on findings and conclusions drafted by prosecutors based not on the hearing transcripts but on their notes and memories from the hearing. Those findings were ultimately rubber-stamped by the CCA on Dec. 12, 2012, clearing the way for the court to set an execution date, which Edwards did that afternoon.

While Rytting has filed with the CCA asking that they reconsider their opinion – Edwards' actions violated Swearingen's due process rights, he argues – he and Benjet are simultaneously seeking access to DNA testing. That testing had previously been requested, but denied by the CCA, which opined that Swearingen needed to be able to prove that the items he wants tested actually contain biological material. In other words, he would have to have the material tested in order to get it tested. In 2011, lawmakers rewrote portions of the post-conviction DNA testing law in order to broaden the definition of biological material in part to address the issues in the Swearingen case.

"The Texas Legislature has made it clear that DNA testing should be allowed when there is a possibility it could help prove innocence, and the testing Mr. Swearingen is seeking could shed light on many unanswered question in this case," Barry Scheck, co-director of the Innocence Project, said in a press release. "We're hopeful the prosecution will consent to the testing before it is too late for Mr. Swearingen."

Indeed, testing the alleged murder weapon is a logical way to proceed and certainly would happen "if the case was investigated today," Benjet said. "Regardless of where you stand on the death penalty, I think we can all agree that we should be absolutely certain of guilt before putting someone to death."

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