When hunters walking in the piney woods of Sam Houston National Forest in East Texas found the body of 19-year-old Melissa Trotter on January 2, 1999, her jeans were torn and her shirt was pulled up. There was tissue damage on her face from scavenging animals and a length of pantyhose, which had been used to strangle her, was tied around her neck. Trotter had been missing since December 8, 1998, when she disappeared from the Montgomery County community college where she was a first-year student. Three days later, on unrelated warrants, the police arrested Larry Swearingen, a 27-year-old unemployed electrician with a young family and a history of run-ins with the law. Police suspected Swearingen was Trotter’s killer. He had been seen talking with Trotter two days before her disappearance outside a local store near Lake Conroe, which abuts the national forest. On the day she went missing, he was seen chatting with her in the college library. After the body was found some three weeks later, Swearingen was charged with Trotter’s kidnapping, sexual assault, and murder. There was little in the way of hard evidence to back up the charges. In addition to the two times he was seen talking to Trotter prior to her disappearance, the state pointed to a lie he told, claiming he didn’t know who Trotter was, and to a letter he wrote while jailed in which he pretended to be someone else and claimed knowledge about the murder that officials said only the killer would know. In 2000, Swearingen was tried for the crime and sentenced to death. Nearly 20 years after the murder, he maintains his innocence, and for more than a decade he has been fighting to clear his name, in part by repeatedly requesting that key crime scene evidence be subjected to DNA testing. While the state’s case against him was built on circumstantial evidence, there was also a trove of physical evidence that prosecutors seemingly either ignored or dismissed. Trotter’s clothes were never tested for DNA, nor were the swabs contained in the rape kit collected from her body. There were cigarette butts found at the scene that could have been swabbed for saliva. Even the length of pantyhose — the murder weapon — was never subjected to DNA testing. The state insisted that the length of hose matched a second piece of hosiery retrieved from the trailer home Swearingen shared with his wife, Terry. But the hose from the trailer wasn’t found until weeks after Trotter’s body was discovered, after police had conducted two exhaustive searches of the Swearingen property. And instead of submitting either piece for DNA testing, the state had a forensic analyst line them up side by side to determine visually whether they came from the same pair of hosiery — the kind of subjective forensic pattern analysis that raises serious concerns about scientific validity and reliability. At Swearingen’s trial, the analyst testified that the two lengths of hose matched “to the exclusion of all other pantyhose.” According to court filings, evidence that was tested pointed away from Swearingen. DNA collected from a cigarette butt found in Swearingen’s trailer that prosecutors claimed belonged to Trotter excluded her as the donor. And DNA developed from blood found in fingernail scrapings taken from Trotter’s body at autopsy excluded Swearingen, revealing instead the profile of an unknown male. To explain that away, the state offered several theories — one of the cops present at the autopsy might have cut himself shaving that morning and the blood somehow wound up under Trotter’s nails; or maybe the blood of an investigator was blown under her nails by the whirring blades of a helicopter searching the forest for her body. To date, Texas’s highest criminal court, the Court of Criminal Appeals, has sided with the state, concluding that the “mountain” of circumstantial evidence against Swearingen outweighs the potentially probative value of DNA evidence. The court has denied his request for testing four times — highlighting a confounding, if not obstructionist, approach to requests made for post-conviction DNA testing under state law. In Swearingen’s case and others, the court has construed the right to testing in a way that severely narrows eligibility — an approach that Swearingen’s lawyers say threatens to make the once powerful law a dead letter, potentially closing access to testing in all cases where there is a claim of wrongful conviction. Swearingen is scheduled for execution on November 16.

Death row inmate Larry Swearingen during an interview at the Polunsky Unit in Livingston, Texas. Photo: Jacob Villanueva/The Texas Tribune

A Decade of Denials When Swearingen first sought DNA testing in 2004, the denial was straightforward — the CCA refused to consider the request because Swearingen’s lawyers had missed a filing deadline. But since then, the judges have shifted their reasoning, homing in on technical details in the state’s post-conviction DNA testing statute even as lawmakers have amended the law in an attempt to address its supposed shortcomings. In its 2010 ruling, the court noted that the statute only allowed testing of evidence “containing biological material” and concluded that Swearingen could not demonstrate that the items he wanted to test — the pantyhose, additional fingernail scrapings, and clothing — were actually “proven” to contain such material. “This court has held that a mere assertion or a general claim that existence of biological material is probable will fail to satisfy the appellant’s burden” under the statute, the court wrote. It also faulted Swearingen for suggesting that any unknown profile developed from DNA testing should be run against state and federal databases, a provision that didn’t appear in the statute. During their 2011 legislative session, lawmakers revised the law to require that unknown DNA profiles be run against government databases. The revision also expanded the definition of biological material to mean any item that contains “blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids, or other identifiable biological evidence that may be suitable for forensic DNA testing,” including “the contents of a sexual assault evidence collection kit.” Swearingen filed for testing again in 2013. Newly elected District Judge Kelly Case approved his request, which was accompanied by an affidavit from a DNA analyst who said the evidence would likely contain biological materials. Prosecutors appealed Case’s ruling to the CCA, and in 2014, the court again denied testing, writing that the changes in the statute had not changed the court’s opinion. Specifically, the court wrote that no “part of the amendments addresses a method for determining the existence of biological material.” For example, while the definition of biological material fit for testing included skin cells, Swearingen still couldn’t confirm that skin cells existed on the pantyhose used to strangle Trotter or on the clothes she was wearing. And having a DNA analyst say such materials would likely be there was not enough. “We have explicitly held that appellee must prove biological material exists and not that it is merely probable,” the court wrote. But in order to definitively prove that microscopic evidence exists, you have to test for it, notes Bryce Benjet, a staff attorney with the Innocence Project and one of the lawyers handling Swearingen’s case. It was a frustrating conclusion, if not an impossible standard to meet.



Photo: Katherine Jones/Idaho Statesman/AP

Even more troubling to Benjet and Houston attorney James Rytting, who has represented Swearingen for 14 years, was another aspect of the court’s 2014 ruling, which the lawyers say demonstrates a fundamental misunderstanding of the purpose and power of DNA evidence. Under the 16-year statute, a defendant has a right to testing if several conditions are met, including a requirement to establish “by a preponderance of the evidence” that “the person would not have been convicted if exculpatory results had been obtained through DNA testing.” Because the revised statute now required that unidentified DNA profiles be uploaded to government databases, a match to a known offender would certainly bolster a defendant’s innocence claim. Such a DNA hit has occurred in roughly 42 percent of the 351 DNA exonerations to date, according to the Innocence Project. Case found that Swearingen had met his statutory burden. But the CCA disagreed, finding that the addition of the database requirement did not mean the court should consider the possibility that DNA evidence might produce a hit to a known offender. In other words, in deciding whether to grant testing, Case could only assume that the DNA would not match Swearingen. Swearingen would then have to prove that he would not have been convicted based on that and nothing more — like the possibility that the DNA of a known offender would be revealed on multiple pieces of evidence. “A requirement to assume that the results of testing were not only from someone other than the convicted person, but that the other person was a repeat offender … makes it hard to imagine a case in which we would not grant DNA testing,” the court wrote. The CCA sent the matter back to Case for additional consideration, and just six months later, the judge again approved the testing. The DNA analyst had beefed up her affidavit and explained why in all reasonable likelihood there would be biological material on each item Swearingen wanted to test, which now included the rape kit evidence. Her conclusions were uncontested by the state, Case wrote in his 13-page ruling, finding that the evidence was either itself biological material — like the rape kit evidence — or contained biological material. The state again appealed, and in 2015, the CCA doubled down, ruling that Swearingen would not be allowed the testing and that he was only asking for it in order to delay his execution. The judges reasserted their conclusion that Swearingen was wrong to ask the court to “rely on the ramifications of hypothetical matches” to an unknown genetic profile. Thus, if the best the testing could prove was that it wasn’t Swearingen’s DNA on any of the physical evidence, there wouldn’t be any point to the testing, the court concluded. Given the circumstantial evidence, merely excluding Swearingen from any physical evidence would not “establish … that he would not have been convicted.” To Benjet and Rytting, the court’s reasoning was absurd. The point of DNA, says Benjet, is not only that it can prove who wasn’t there, but it can also tell you exactly who was there. Declining to consider the latter turns the value of DNA testing on its head, essentially nullifying the statute. “The notion that they’re expressing — which is that we only consider exclusionary results — has nothing to do with how DNA actually works,” says Benjet. “I don’t know why they haven’t figured that out, but the end result of that error is that DNA testing is no longer available to most people in prison.” Following the court’s logic, the lawyers say, testing wouldn’t even be allowed in a single-perpetrator DNA rape case, which make up 85 percent of DNA exonerations for rape to date. Consider a scenario in which a victim has identified one person as their attacker and DNA testing reveals a single source that does not match that person. If the court won’t consider that the profile extracted from the DNA might match someone else, how would the accused ever prove that they weren’t responsible for the rape? And Swearingen’s case is exactly like a single-perpetrator rape case, Rytting says. “This is their theory of the case — it’s a rape murder; that’s what you pled and, that’s what you argued. And you have one assailant — that’s your theory, state,” he said. “And [if] you exclude Swearingen and have someone else’s profile on the rape kit … your theory of the case is blown.” Indeed, when lawmakers added the database requirement to the statute in 2011, it was clear that they wanted the possibility of a DNA database match to factor into the decision to grant testing. Rodney Ellis, board chair of the Innocence Project and then-state senator from Houston who sponsored the measure, explained it as a way to correct miscarriages of justice. “Such a comparison could be used to identify the actual perpetrator and to exonerate the convicted,” he said during a committee hearing. The measure sailed through both chambers and was quickly signed into law by then-Gov. Rick Perry. The court’s current interpretation of the statute would certainly preclude testing for Michael Morton, who has become the face of DNA exoneration in Texas. Morton was sentenced to life in prison for the 1986 beating death of his wife at their home on the outskirts of Austin. In 2010, an intermediate appellate court finally granted Morton the right to test a bandana stained with his wife’s blood that was found in a field behind the house. No other stains were visible, but DNA testing ultimately revealed the profile of another man, Mark Norwood, who was responsible for a similar bludgeoning murder of another young mother in Austin two years after Morton’s wife was killed. Morton was subsequently exonerated, and state lawmakers have championed him as proof of the power of DNA testing.



Samples are prepared for DNA testing at the Genetic Institute Nantes-Atlantique on Dec. 10, 2015, in Nantes, France. Photo: Georges Gobet/AFP/Getty Images

The CCA’s Record: Rulings That Favor Finality Swearingen’s case isn’t the only example of the CCA dismissing the importance of DNA evidence in a rape-murder case in Montgomery County — nor is it the only high-profile death penalty case in which the court has used questionable logic to deny DNA testing. In 1986, the body of 16-year-old Deanna Ogg was found off a logging road just south of the Sam Houston National Forest. She had been raped and bludgeoned to death. Roy Criner, a logger with a history of dust-ups with the law, was charged with her rape based primarily on inconsistent stories he’d told several people about having picked up a hitchhiker who had given him oral sex. No physical evidence tied him to the crime, though prosecutors pointed out that his blood type was consistent with the semen collected from Ogg’s body. Criner was convicted in 1990 and sentenced to 99 years in prison. Seven years later, Criner caught a break when DNA testing approved by the Montgomery County district attorney revealed that the semen was not his. A district judge agreed that Criner deserved a new trial. But the CCA disagreed. Writing for the majority, Chief Judge Sharon Keller, who is still the court’s presiding judge, concluded that the DNA wasn’t particularly compelling — perhaps Criner had worn a condom or hadn’t ejaculated, she opined. Or, as she told Frontline, perhaps Ogg, who she had described as promiscuous, had sex with more than one person before she was killed. If the DNA test had come back as a match to Criner, it would be “important,” Keller said, because it would prove the state’s case. But the fact that the DNA excluded Criner simply “didn’t mean that he didn’t have sex with her.” None of these theories had been presented to Criner’s jury. There was no evidence Ogg had sex with anyone in the days leading up to her death. And, as it was with Swearingen, the state prosecuted Criner as solely responsible for Ogg’s attack. Charlie Baird, a veteran criminal defense lawyer in Austin who was a judge on the CCA when the Criner case was decided, found the opinion shocking — even for the CCA, which has long had a reputation of being ideologically driven and results oriented. “I’d never seen them just out of whole cloth create something in order to deny relief when the trial judge had recommended it,” says Baird, who wrote a dissenting opinion in Criner’s case. As DNA has played an increasingly pivotal role in exposing wrongful convictions, Baird thinks that the CCA has taken an equal and opposite approach, interpreting the state’s DNA statute in order to narrow its impact as much as possible. Since the time of Criner’s case, he said, the court has actually “devolved, if that’s possible.” “The state uses the DNA database all the time, and it gets hits all the time that it uses to prosecute people,” he said. “I don’t know why we wouldn’t make it equally available to people with colorable claims of innocence.” Criner ultimately prevailed — without the help of the CCA — when the same male profile developed from the semen was recovered from a cigarette found by Ogg’s body, a piece of evidence the state had previously ignored. Then-Gov. George W. Bush pardoned Criner in the summer of 2000. The CCA also repeatedly denied testing for Hank Skinner, convicted of the murder of his girlfriend and her two sons in the home they shared in the Panhandle town of Pampa back in 1993. Skinner’s attorneys ultimately filed a federal civil rights suit in an effort to access testing. The state balked, but in March 2011, the U.S. Supreme Court ruled in Skinner’s favor. The court has recognized that there is no freestanding right to DNA testing, but that once a state creates a scheme to provide testing, it cannot then administer it in an arbitrary and unreasonable way that violates due process. In the wake of the ruling, Texas agreed to DNA testing in Skinner’s case. Litigation over the results is ongoing. While Swearingen, Skinner, and other long-term death row inmates have spent years seeking testing, the state passed a second DNA law in 2013 that now requires pretrial DNA testing in all death penalty cases. That the law has not benefited inmates like Swearingen remains frustrating for attorneys and advocates. Benjet and Rytting followed in Skinner’s footsteps, filing a federal civil rights suit late last year. In July, a federal judge in Austin dismissed the case; the lawyers have asked the judge to reconsider his ruling and the matter is pending.



Photo: Todd Wiseman/The Texas Tribune