Texas Schedules Execution but Refuses DNA Tests That Could Prove a Manâs Innocence
Swearingen
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 Trotterâs 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 Trotterâs 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 didnât 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 stateâs case against  him  was built on circumstantial evidence  there was also a trove of physical evidence that prosecutors seemingly either ignored or dismissed.
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 wasnât found until weeks after Trotterâs 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 â the kind of subjective forensic pattern analysis that raises serious concerns about scientific validity and reliability. At  Swearingen âs trial  the analyst testified that the two lengths of hose matched âto the exclusion of all other pantyhose.â
According to court filings  evidence that was tested pointed away from  Swearingen . DNA collected from a cigarette butt found in  Swearingen âs trailer that prosecutors claimed belonged to Trotter excluded her as the donor. And DNA developed from blood found in fingernail scrapings taken from Trotterâs body at autopsy excluded  Swearingen   revealing instead the profile of an unknown male.
To date  Texasâs highest criminal court  the Court of Criminal Appeals  has sided with the state  concluding that the âmountainâ of circumstantial evidence against  Swearingen  outweighs the potentially probative value of DNA evidence. The court has denied his request for testing four times â highlighting a confounding  if not obstructionist  approach to requests made for post-conviction DNA testing under state law.
In  Swearingen âs case and others  the court has construed the right to testing in a way that severely narrows eligibility â an approach that  Swearingen âs 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 Longview  Texas. Photo: Jacob Villanueva/The Texas Tribune
When  Swearingen  first sought DNA testing in 2004  the denial was straightforward â the CCA refused to consider the request because  Swearingen âs lawyers had missed a filing deadline.
In its 2010 ruling  the court noted that the statute only allowed testing of evidence âcontaining biological materialâ and concluded that  Swearingen  could not demonstrate that the items  he  wanted to test â the pantyhose  additional fingernail scrapings  and clothing â were actually âprovenâ to contain such material.
âThis court has held that a mere assertion or a general claim that existence of biological material is probable will fail to satisfy the appellantâs burdenâ 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 didnât appear in the statute.
 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.
For example  while the definition of biological material fit for testing included skin cells   Swearingen  still couldnât 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. âWe have explicitly held that appellee must prove biological material exists and not that it is merely probable â 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 Swearingenâs case . It was a frustrating conclusion  if not an impossible standard to meet.
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   [TGT] was Trotterâs killer.  [TGT]  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   [TGT]  was seen chatting with her in the college library.
After the body was found some three weeks later    [TGT] was charged with Trotterâs 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  [TGT]  was seen talking to Trotter prior to her disappearance  the state pointed to a lie  [TGT]  told  claiming  [TGT]  didnât know who Trotter was  and to a letter  [TGT]  wrote while jailed in which  [TGT]  pretended to be someone else and claimed knowledge about the murder that officials said only the killer would know.
In 2000    [TGT] 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 stateâs case against  him  was built on circumstantial evidence  there was also a trove of physical evidence that prosecutors seemingly either ignored or dismissed.
The state insisted that the length of hose matched a second piece of hosiery retrieved from the trailer home   [TGT] shared with   [TGT]   wife  Terry. But the hose from the trailer wasnât found until weeks after Trotterâs 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 â the kind of subjective forensic pattern analysis that raises serious concerns about scientific validity and reliability. At  [TGT] the analyst testified that the two lengths of hose matched âto the exclusion of all other pantyhose.â
According to court filings  evidence that was tested pointed away from  [TGT]  . DNA collected from a cigarette butt found in   [TGT]  âs trailer that prosecutors claimed belonged to Trotter excluded  [TGT]  as the donor. And DNA developed from blood found in fingernail scrapings taken from Trotterâs body at autopsy excluded   [TGT]    revealing instead the profile of an unknown male.
To date  Texasâs highest criminal court  the Court of Criminal Appeals  has sided with the state  concluding that the âmountainâ of circumstantial evidence against   [TGT]   outweighs the potentially probative value of DNA evidence. The court has denied  [TGT]  request for testing four times â highlighting a confounding  if not obstructionist  approach to requests made for post-conviction DNA testing under state law.
In  Swearingen âs case and others  the court has construed the right to testing in a way that severely narrows eligibility â an approach that  Swearingen âs 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.
  [TGT]   is scheduled for execution on November 16.
Death row inmate  Larry Swearingen  during an interview at the Polunsky Unit in Longview  Texas. Photo: Jacob Villanueva/The Texas Tribune
When   [TGT] first sought DNA testing in 2004  the denial was straightforward â the CCA refused to consider the request because   [TGT]  lawyers had missed a filing deadline.
In  [TGT]  2010 ruling  the court noted that the statute only allowed testing of evidence âcontaining biological materialâ and concluded that  Swearingen  could not demonstrate that the items  he  wanted to test â the pantyhose  additional fingernail scrapings  and clothing â were actually âprovenâ to contain such material.
âThis court has held that a mere assertion or a general claim that existence of biological material is probable will fail to satisfy the appellantâs burdenâ under the statute  the court wrote. It also faulted   [TGT]   for suggesting that any unknown profile developed from DNA testing should be run against state and federal databases  a provision that didnât appear in the statute.
  [TGT]   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.
For example  while the definition of biological material fit for testing included skin cells   Swearingen  still couldnât 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. âWe have explicitly held that appellee must prove biological material exists and not that it is merely probable â 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 Swearingenâs case . It was a frustrating conclusion  if not an impossible standard to meet.