A Texas man on death row is scheduled to be executed on November 16, even though DNA evidence excludes him from a 1998 murder for which he was convicted.
In 2000, Larry Swearingen was sentenced to the death penalty for the murder and rape of 19-year-old Melissa Trotter.
Since then, Swearingen has maintained his innocence and fought for DNA testing of evidence including Trotter’s clothes, the murder weapon and a rape kit.
Texas courts have struck down his repeated requests.
But some DNA testing has been performed.
And it supports Swearingen’s innocence, according to the Innocence Project.
Blood from beneath Trotter’s fingernails excluded Swearingen and yielded the profile of an unknown man.
To this day, Trotter’s clothes have never been tested for DNA and the swabs in the rape kit collected from her body were also never tested.
Cigarette butts found at the scene of Trotter’s murder could have been swabbed for saliva, which would reveal DNA.
But they never were.
Since Swearingen’s conviction, Texas has made improvements with its post-conviction DNA testing statute.
Swearingen was twice granted DNA testing.
But the state Court of Criminal Appeals struck down his request, ruling the court should only consider whether the DNA evidence would exclude Swearingen and should not be required to “rely on the ramifications of hypothetical matches” to an unknown genetic profile.
”The notion that they’re expressing — which is that we only consider exclusionary results — has nothing to do with how DNA actually works,” Bryce Benjet, one of Swearingen’s attorney’s, told The Intercept.
“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.”
Under a 16-year statute, defendants have rights to testing only if several conditions are met including the 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.”
In 2011, legislators revised the statute to require unidentified DNA profiles be uploaded to a government database.
The DNA found under Trotter’s fingernails was not linked to a known offender, which would bolster Swearingen’s claim of innocence.
DNA matches to offenders in the government database occurred in roughly 42 percent of 351 DNA exonerations to date, according to the Innocence Project.