AUSTIN, Texas (CN) — With help from The Innocence Project, death row inmate Larry Ray Swearingen claims that DNA tests could prove his innocence of a 1998 murder, but the Texas Court of Criminal Appeals has unconstitutionally denied him the opportunity to present the evidence.
Swearingen sued the nine judges on the state's highest criminal appeals court on Oct. 28 in Federal Court, challenging the appellate court's interpretation of the criminal code, and demanding the release of evidence for DNA testing.
"It's not a casual thing to bring a federal civil rights action, but the denial of DNA testing in a death penalty case is really something that is pretty extraordinary," said Bryce Benjet, an attorney with The Innocence Project of New York City.
"We think it is appropriate for a federal judge to step in and enforce the Constitution," Benjet said in an interview.
Swearingen was convicted of the 1998 murder of Melissa Trotter, of Willis, Texas, a 19-year-old freshman at Lone Star Community College-Montgomery. She was found in the Sam Houston National Forest, strangled to death by a pair of pantyhose.
The state presented evidence at trial that Swearingen and Trotter had been seen leaving campus together the day she disappeared. Prosecutors said Swearingen kidnapped, raped, and murdered her after she refused his sexual advances.
Swearingen's attorneys say in the new lawsuit that he was convicted "largely on the basis of circumstantial evidence."
Swearingen has always maintained his innocence and has filed several motions to secure DNA testing under the Texas Code of Criminal Procedure, which requires post-conviction DNA testing if such evidence would more than likely have resulted in a not-guilty verdict.
His first two motions were unsuccessful, but the Montgomery County Court granted two subsequent motions for DNA testing, which the court of appeals reversed.
As those motions wended through the courts, the Texas Legislature made several amendments to the DNA testing statute in the criminal code. The Legislature cited Swearingen's case as the impetus for these changes, which included expanding the definition of what "biological material" could be tested and broadening the statute to require testing of evidence that has "a reasonable likelihood of containing biological material."
"His case was the subject of legislative testimony, yet still, when it gets back to the Court of Criminal Appeals, they interpret the statute in a way that denies him testing," Benjet said.
The 28-page lawsuit against the Court of Criminal Appeals states that Swearingen's repeated efforts to obtain DNA testing have been "thwarted" by the appellate court's "unreasonably narrow" interpretation of the criminal code, and that its interpretation "ignores the most powerful aspects of DNA testing and sets a bar that cannot be satisfied in most cases."
This alone has denied him due process, his attorneys say, and "unconstitutionally deprived [him] access to the courts" to obtain other remedies which could prove his innocence.
Swearingen seeks declaratory relief that the appeals court's interpretation of the code is unconstitutional.
He also sued the director of the Texas Department of Public Safety, the Montgomery District [Court] Clerk and the Montgomery County Sheriff, to force release of evidence for testing, including the murder weapon, the rape kit, the victim's clothing and cigarette butts found near her body.
Montgomery County prosecutor Bill Delmore told the Houston Chronicle last year that "a lot" of DNA testing had been done in Swearingen's case, and that Swearingen's DNA profile was matched to a hair on a pantyhose fragment found in his trailer and two hairs found in Swearingen's truck were matched to Trotter.
"We're very confident that we have the right guy," Delmore told the Chronicle article in June 2015. "We've executed on far less."
But Swearingen's attorneys call the pantyhose evidence found in Swearingen's trailer "troubling," as the pantyhose had not been found during the first two searches of the trailer. Also, "serious doubts have been raised about the reliability" of the tear line analysis that matched the fragment to the pantyhose found tied around Trotter's neck, according to the complaint.
The only pre-trial DNA testing that revealed a male donor, taken from fingernail scrapings, excluded Swearingen, and the state offered no "plausible" explanation for the presence of someone else's DNA underneath Trotter's fingernails, his attorneys say in the complaint.
They say the state speculated that "perhaps blood from an officer present during the autopsy who may have cut himself while shaving hours before inexplicably worked its way under the victim's fingernails," or that blood circulating through the morgue's air-conditioning system "somehow landed in the scrapings from Mr. Trotter's fingernails."
Or, the state argued, perhaps blood from an investigator was blown under the fingernails "by the whir of helicopters in the search."
The Innocence Project has been handling the constitutionality of Texas' DNA-testing statute. Philip Hilder and James Rytting of Houston-based Hilder & Associates have taken on other aspects of the case.
Benjet said there is "some pretty alarming" forensic evidence that makes some experts think it would have been "impossible" for Swearingen to have committed the murder.
"We've seen time and time again that the criminal justice system, like most government endeavors, is not perfect," Benjet said. "And when we have science that can conclusively determine guilt or innocence, it's really hard to believe that people wouldn't want that applied in death penalty cases."
Swearingen's fifth execution date, set for March this year, was delayed by appeals.
The U.S. Supreme Court refused to grant writ of certiorari on Oct. 3. The Texas Court of Criminal Appeals denied the writ without comment on Oct. 12. The setting of his sixth execution date is imminent.
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