https://www.austinchronicle.com/daily/news/2013-01-25/da-says-swearingen-dna-motion-is-stall-tactic/

DA Says Swearingen DNA Motion is Stall Tactic

By Jordan Smith, January 25, 2013, 6:10pm, Newsdesk

As Montgomery County District Attorney Brett Ligon sees it, attorneys for death row inmate Larry Swearingen don't want DNA testing in his case as much as they want to delay his pending execution.

Swearingen is set to die on Feb. 27* for the 1998 kidnapping and murder of 19-year-old Melissa Trotter. Trotter, a community college student, disappeared from her college campus on Dec. 8, 1998; her body was found several weeks later, on Jan. 2, 1999, in the Sam Houston National Forest.

Swearingen has said he is innocent and has previously sought DNA testing of the never-before-tested items of evidence – including a length of pantyhose used to strangle Trotter that was left knotted around her neck. The Montgomery County DA's office has previously objected to that testing, and the Court of Criminal Appeals agreed, opining in part that unless Swearingen could determine that there was biological material on the evidence worth testing that he could not do so. In other words, in order to find DNA he would have to prove it was already there.

Lawmakers in 2011 updated the Texas post-conviction DNA testing statute, in part to broaden the definition of biological material – thus, directly addressing the issue that had blocked Swearingen from testing the pantyhose ligature along with other items, including articles of Trotter's clothing and scrapings from under the fingernails of one of her hands. (Previous testing on scrapings taken from one of her hands revealed an unknown DNA profile; whether that profile has been compared to DNA in a national database is unclear.)

As such, Swearingen's attorneys – which includes Houston's James Rytting and now Bryce Benjet and the New York-Innocence Project – last week filed a motion to secure DNA testing of the as-yet untested materials. Although Ligon initially scoffed at the idea, he has changed course, this week offering to expedite transfer of the items to the lab of the defense's choosing, and to pay for the DNA testing out of the county's pocket. Swearingen's attorneys have declined the request.

That prompted Ligon to issue a press release Friday, lambasting the defense for stalling what Ligon sees as the inevitable execution of Swearingen. "It is obvious that Swearingen's attorneys desire additional testing only if it will result in another delay of the execution," reads the press release. "The district attorney remains willing to facilitate the DNA testing requested by the defense, but will oppose any further stay of execution."

While Swearingen's attorneys are "relieved" to hear that Ligon has finally agreed to DNA testing, they think that a rush to get it done within a month is unreasonable. "Due to the nature of the evidence in this case, the testing required is complicated and could require several different types of analysis," said Barry Scheck co-director of the Innocence Project. "The careful forensic work required will simply take more time than we have under the execution date that was set by the state." In other words, the defense wants to make sure the DNA analysts are looking closely at the evidence and not at the clock.

Moreover, Scheck said that conducting the testing pursuant to an agreement with Ligon outside the provisions of the statute "that was amended in direct response to this case would severely compromise Mr. Swearingen's ability to get the reliable testing that can prove his innocence."

Montgomery County Assistant District Attorney Warren Diepraam isn't buying it: "What could possibly be wrong with doing the testing fast at the lab of their choice with full access to everything by them?" he asked in an email to the Chronicle. Whatever results are obtained could then be added to a motion for the court that would "cut to the chase" with whatever the results might be. "They apparently aren't interested in that and want to jump through hoops that wouldn't be in existence but for their stall tactics," he wrote.

In addition to the untested evidence, Swearingen's lawyers say that recently discovered tissue samples taken from Trotter at autopsy prove that Swearingen did not kill her. At issue are histology samples that reveal lung, vascular and heart tissues that are intact and well-preserved, and not broken down as would be expected in the tissue of a person left in a forest for nearly a month. A handful of veteran Texas pathologists have said the tissues prove that Trotter was dead far less than a month at the time her body was found. Swearingen was arrested on Dec. 11 on outstanding warrants and has remained behind bars ever since. If she wasn't killed until late December, Swearingen could not be responsible.

An evidentiary hearing on that evidence took place in February 2012. Before the official transcripts of the hearing were produced and without holding any hearing to determine which scientific evidence was reliable enough to be considered as evidence, then-Judge Fred Edwards ruled that the defense science was "junk" and denied Swearingen relief. Less than two months later the CCA signed off on that opinion, clearing the way for Swearingen's fourth execution date to be set – which Edwards did that afternoon. Swearingen's attorneys are also challenging Edwards actions and ruling, arguing that deciding the case before the transcripts were made and without first holding a hearing to determine which expert testimony would be accepted violates state statute and Swearingen's due process rights. An appeal for the CCA to reconsider that ruling is pending.

A hearing on the defense's DNA motion is set for Jan. 30 in Montgomery County.

Background on the Swearingen case is here.

*The original version of this story included an incorrect execution date.