In the space of one week, attorneys for condemned murderer Larry Ray Swearingen have requested additional DNA testing by filing a motion with the media and then the DA’s Office and then opposed the district attorney’s request to transport the evidence to the forensic DNA laboratory requested by the defense in order to expedite testing.
Swearingen’s execution is scheduled for February 27, 2013. On January 17, 2013, attorneys for Swearingen, including Barry Scheck’s Innocence Project, moved for additional DNA testing of the evidence and requested a stay of execution.
Although the Texas Court of Criminal Appeals held in 2010 and on two previous occasions that Swearingen is not entitled to any additional testing, Montgomery County District Attorney Brett Ligon immediately agreed to expedited testing of the evidence at the laboratory specified by defense counsel. A representative of that laboratory has informed prosecutors that the testing could be completed on an expedited basis within about ten business days.
After learning that the DA had agreed to the testing, offered to pay for it, and sought expedited testing, attorneys for Swearingen immediately stated that they were opposed to release of the evidence to the laboratory at this time! As a result, the district attorney’s motion to begin the testing process remains pending in the 9th District Court resulting in a delay of the testing asked for by the defense. It is obvious that Swearingen’s attorneys desire additional testing only if it will result in another delay of the execution.
The district attorney remains willing to facilitate the DNA testing requested by the defense, but will oppose any further stay of execution. Swearingen’s execution has been stayed three times, and each time the appellate courts have eventually found no grounds for a new trial.
The most recent stay in July of 2011 resulted in a two-week evidentiary hearing in the 9th District Court. Expert witnesses called by prosecutors testified that the scientifically reliable evidence supports the guilt of Larry Swearingen and there was no scientific reason that Swearingen could not have committed the murder of Melissa Trotter in December of 1998. Prosecutor Warren Diepraam called nationally and internationally recognized scientists who provided that testimony including forensic pathologist Dr. Werner Spitz, forensic entomologist Dr. N. Haskell, forensic climatologist Dr. Rich Grant, and forensic taphonomist Dr. Sybil Bucheli. Defense witness conclusions have been found by the courts to be not credible, not based on accepted scientific principles, or are biased.
At the conclusion of that hearing, the district court found that defense experts’ testimony lacked any support in the scientific literature, and that Swearingen had not demonstrated his innocence. This supports previous findings by the Texas Court of Criminal Appeals and the federal courts. On December 12, 2012, the Texas Court of Criminal Appeals adopted those findings and found that Swearingen was not entitled to a new trial. That decision resulted in the setting of the current execution date.