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| Larry Swearingen |
Inmate says Court of Criminal Appeals has deprived him of the right to prove his innocence.
A death row inmate has sued the state's highest criminal court and its 9 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 4 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.
"(That) makes it hard to imagine a case in which we would not grant DNA testing," Judge Michael Keasler wrote for the majority. "We believe that had the Legislature meant to so drastically lower the barrier for testing, they would have said so explicitly."
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.
Source: Austin American-Statesman, November 1, 2016
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