Swearingen to CCA: Please Test the Evidence

State says testing won't prove innocence

No additional DNA testing of evidence in the case of Larry Swearingen, on death row for the kidnapping and murder of Melissa Trotter, should be granted by the Court of Criminal Appeals, Montgomery County prosecutor Bill Delmore argued before the court Tuesday morning, because no amount of evidence could demonstrate Swearingen's innocence.

Nor would anything sway the state from its certainty that Swearingen alone is responsible for the 1998 murder, Delmore said.

And it seems clear that at least two of the seven judges who heard the arguments Dec. 4 agree outright with Delmore. (Judges Tom Price and Barbara Hervey were not in court.) Judges Cathy Cochran and Michael Keasler repeatedly challenged Swearingen's position that never-before-tested items of evidence connected to the nearly 15-year-old murder should be subjected to DNA analysis before Swearingen is put to death. "There's got to be some finality to it," Keasler said.

Trotter, a 19-year-old community college student, 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.

Swearingen claims he is innocent of the crime and has been seeking access to items of evidence for DNA testing for nearly a decade. Among other items, Swearingen seeks to test for DNA a length of pantyhose found with Trotter's body and that was used to strangle her, as well as to a second section of hose that Swearingen's landlord found in January 1999, several weeks after Swearingen was arrested for the crime, inside the residence Swearingen and his wife rented. Neither segment of hose has ever been subjected to DNA testing, but the state maintains that a visual analysis of the two pieces confirms that both came from a single pair of pantyhose – thus tying Swearingen to the murder.

The state argues that there is abundant circumstantial evidence linking Swearingen to the crime that no amount of scientific testing could ever discredit: Swearingen was seen with Trotter not long before she disappeared; cigarettes that were the same brand she smoked were found in his house, though neither Swearingen nor his wife smoked; Swearingen acted strangely when questioned about his relationship with Trotter; and he forged a letter, written in rudimentary Spanish using a dictionary, which he claimed was sent to him in jail by the real killer, in an attempt to divert suspicion. The mountain of circumstantial evidence is among the reasons the CCA should deny Swearingen's current bid for DNA testing, Delmore argued. The evidence "establishes his opportunity" to commit the crime, "his motive to commit the crime; it establishes his possession" of the pantyhose – the murder weapon – and, Delmore added, "there is copious evidence of [Swearingen's] consciousness of guilt."

On this point, he noted, the CCA has already agreed. In it's 2010 opinion denying Swearingen's previous request for DNA testing, the court ruled that in order to obtain testing Swearingen had to prove not only that there was some sort of biological material there that could be tested – which he could not do without testing – but also that "in light of the overwhelming evidence of [Swearingen's] guilt, even if [the court] were to grant his request to test all of the items proffered and those results were exculpatory, [Swearingen] cannot show by a preponderance of evidence … that he would not have been convicted," the court previously wrote.

Delmore argued that the CCA should vacate a district court order issued earlier this year that granted Swearingen the right to post-conviction DNA testing of the evidence items in question. The CCA's position is the "law of the case" and should not be challenged by the lower court, Delmore argued.

But Jason Kreag, who is among the lawyers representing Swearingen, argued that the the lower court vacated Swearingen's February 2013 execution date (the fourth time Swearingen has been slated for death) based on testimony from DNA experts (including experts for the state) that the items in question are fit to be tested and could yield a DNA result. That expert opinion was not before the CCA in 2010 and thus the lower court's ruling is based on new facts that need vetting, via testing. Under the state's post-conviction DNA statute, there is a "strong presumption in favor of DNA testing where testing can get us to the truth" of the matter, Kreag argued. As such, the trial court's finding that "these items are suitable for DNA testing" is "due almost total deference" by the CCA, and the court should stand down and let the testing proceed, he said.

So what, Cochran asked. If the tests come back with DNA from another person, how would that surmount the circumstantial evidence linking Swearingen to the crime? For example, she said, "we know" that cigarette butts found near Trotter's body – which Swearingen now seeks to test – were linked to the hunters who found her in the forrest and who stood nearby smoking while waiting for police. Kreag said that the link between the cigarettes and the hunters was asserted by law enforcement, but has never been scientifically confirmed; DNA testing would do that – or might reveal DNA from someone else entirely. The only way to be sure, he said, is to test the evidence.

But if the DNA testing revealed a DNA profile not linked to anyone connected to the case or to some other known perpetrator, how would that help Swearingen, Cochran asked. If the additional DNA testing revealed the same unknown profile on multiple pieces of evidence, that would raise doubt about Swearingen's guilt, despite the circumstantial evidence, Kreag argued. Indeed, he pointed the justices to the case of Michael Morton, wrongly imprisoned for nearly 25 years for the murder of his wife, Christine, before DNA testing that Morton fought to access for years, was finally conducted and revealed another man, Mark Alan Norwood, had committed the crime. In that case, the state was also certain that circumstantial evidence proved Morton's guilt, Kreag said.

But there is a "huge difference" between the circumstantial evidence of guilt here and in the Morton case, Keasler said. And both Keasler and Cochran wondered where it would all end: "You cry wolf so many times" in this case, she said, repeatedly coming back to the court with new theories of innocence and requests for additional testing. "All of these things just keep coming back up again," she said. "When is this going to come to an end – what's going to bring this to an end?" (Swearingen's last appeal argued that tissue samples proved that Trotter had been dead for a shorter period of time than the state asserts; if that's the case, then Swearingen could not be responsible because he was already in jail by the time she was killed. The courts didn't find the science compelling and the CCA denied the appeal.)

If the state is right about Swearingen's guilt, "the quickest way to the end is to test the evidence," Kreag said. "If Mr. Swearingen's DNA comes back [on] the ligature, it's done."

Indeed, Judge Elsa Alcala asked Delmore what would happen if additional testing revealed the DNA of a known perpetrator on multiple items of evidence. What would the state say then? "Would that create reasonable doubt in a fact-finder's mind at retrial?" she asked.

Delmore said he didn't think that would change anything.

"So you're telling [us], if you found evidence at the scene and at [Swearingen's] house [linked to another perpetrator], that's not going to cause a problem" for the state, Judge Cheryl Johnson asked.

That would point to a "high likelihood of contamination" at the DNA lab during the testing process, Delmore responded. From another perpetrator, Johnson asked. "Yes," Delmore responded.

"How would it get there?" she followed up.

"I don't know," he replied. But even if the testing revealed the profile of a notorious serial killer on items of evidence connected to Trotter's murder, Delmore said it would prove only that Swearingen had an accomplice. "Nothing will ever convince me of his innocence," Delmore said.

The CCA has no timeline to rule.

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death penalty, capital punishment, Larry Swearingen, Melissa Trotter, DNA, wrongful conviction, forensics, Court of Criminal Appeals, courts, criminal justice, Bill Delmore, Jason Kreag, Cathy Cochran, Michael Keasler, Cheryl Johnson, Elsa Alcala

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