The Texas Court of Criminal Appeals ruling in Texas v. Swearingen is available in Adobe .pdf format.
"CCA Denies DNA Testing in Swearingen Case," is Jordan Smith's post at the Austin Chronicle.
Death row inmate Larry Swearingen cannot prove that biological materials exist on evidence connected to the 1998 murder of Melissa Trotter – including on the alleged murder weapon – and therefore is not entitled to DNA testing of those items, the Court of Criminal Appeals ruled this morning.
In ruling against Swearingen on Wednesday, Judge Paul Womack wrote for the unanimous court that a district court ruling that last year approved the requested DNA testing would be overturned because Swearingen "cannot prove the existence of biological material" that could be tested. Although the defense presented to the district court expert testimony that biological evidence would "likely" be found on the pantyhose that is not enough to secure testing, the court ruled. "[W]e have explicitly held that appellee must prove biological material exists and not that it is merely probable."
In other words, without testing, there can be no testing.
The court's conclusion also precludes any testing of cigarette butts found near Trotter's body or of Trotter's clothes absent a showing that biological material exists on each item.
Only finger nail scrapings taken from Trotter are considered "biological evidence per se" and thus not restricted by the need to prove DNA exists before testing can be done. Only some of the collected scrapings were tested, and material found from under one of Trotter's fingernails produced DNA from an unknown male.
The Texas Tribune reports, "Court Reverses DNA Testing Decision in Swearingen Case," by Brandi Grissom and Edgar Walters.
The state’s highest criminal court on Wednesday unanimously reversed a lower court’s decision to allow further DNA testing in the case of death row inmate Larry Swearingen, sending his case back to a district court for further proceedings.
Swearingen was sentenced to death in 2000 after he was convicted of kidnapping, raping and killing 19-year-old Melissa Trotter in Montgomery County. His lawyers say DNA testing on evidence found near Trotter’s body could prove his innocence, but prosecutors say further testing is unnecessary.
James Rytting, a lawyer representing Swearingen, said he would revisit the present motion for further DNA testing now that the case is before the district court once again.
“They remanded it,” Rytting said of the Court of Criminal Appeals' decision. “They didn’t say DNA testing is completely forbidden.”
Bill Delmore, the Montgomery County assistant district attorney prosecuting Swearingen’s case, said he would ask the court to set another execution date, adding that there was a “mountain of evidence” of Swearingen’s guilt.
Earlier coverage of Larry Swearingen's case begins at the link.