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Texas claims it’s ‘too late’ for DNA testing which could get inmate off death row

October 10, 2022

Featured Image Credit: AP/Shutterstock/Paul Weber

The state of Texas is fighting to dismiss a civil rights suit arguing for DNA testing which could prove the innocence of a death row inmate.

Rodney Reed was sentenced to death in 1998 for the 1996 murder of Stacey Stites in Bastrop, Texas, and remains on death row as he continues to maintain his innocence.

Stites was just 19 at the the time of her death, and was found dead along a country road. She had been engaged to a man named Jimmy Fennell, a police officer in the neighbouring town, and had allegedly introduced Reed to her co-worker, Suzen Hugan, as a friend.

Hugan told The Intercept Stites was ‘flirty’ with Reed, saying “it seemed like more than a friendship,” however Texas claims Reed was actually a stranger to Stites. 

After Stites was killed, sperm evidence recovered from her body was matched to Reed. An investigation by law enforcement uncovered no evidence that the pair knew each other, though Reed claims he and Stites were having an affair and that the DNA was from a consensual encounter.

Meanwhile, Fennell has been accused by some as having known about the alleged affair. He has denied the claims.

Over his years on death row, Reed has argued for the testing of crime scene evidence, including the alleged murder weapon, however reluctance on post-conviction DNA testing in the state has made things tough for the inmate.

In 2019, Reed took the case to federal court with the argument that Texas violated his due process rights by denying his bid for forensic testing, but the state is trying to get the suit dismissed with the argument that Reed waited too long to file his federal claim.

Texas is using the statute of limitations to argue its side, claiming Reed had a two-year window to file his federal claim after he was first denied DNA testing in 2014.

However, Reed has argued that filing earlier would have meant filing before the Court of Criminal Appeals had considered his case, meaning he would not have a final decision in the matter on which to base his suit.

It wasn’t until 2017 that the CCA issued its final ruling, and Reed’s suit was filed less than two years later.

Texas, meanwhile, argues Reed should have brought the case in the two years after 2014 because there is ‘no provision of Texas law’ that required him to appeal to the CCA.

As the battle continues, the 5th US Circuit Court of Appeals sided with the state, meaning the Supreme Court is now set to hear the case on 11 October.

How evidence once thought destroyed helped free a man after 39 years behind bars for murder he didn’t commit

Decades into a life prison sentence without the possibility of parole, Craig Coley continued to insist he was innocent.

The former restaurant night manager had fought unsuccessfully for years to overturn a conviction for a grisly double murder that had shocked Simi Valley in 1978.

But when police recently reopened the case, they faced a daunting obstacle. After Coley lost his final appeal years ago, a judge had issued an order permitting the destruction of the crime scene evidence.

A cold-case detective began what some expected to be a fruitless search. He tried to contact the two laboratories that had performed rudimentary tests on the crime scene evidence in the 1970s and found that both had gone out of business. A Northern California lab had acquired their contents.

That’s when the detective discovered that the evidence boxes had not been destroyed but were sitting forgotten, intact and in storage.

New tests found that a key piece of evidence used to convict Coley did not carry any of his DNA, investigators said.

“We had thought it was destroyed,” Michael Schwartz, Ventura County special assistant district attorney, said in an interview Thursday. “Whether we’d reached the same conclusion without that, I don’t know.”

Gov. Jerry Brown pardoned Coley on Wednesday, writing that the DNA evidence and a painstaking re-investigation of the case proved his innocence.

Coley was 31 when he was arrested, and 70 when he was released Wednesday. A former Simi Valley police officer who was convinced of Coley’s innocence plans to help him “get acclimated to freedom” in San Diego, the officer wrote on a GoFundMe page.

It was a relative who came across the bodies of Rhonda Wicht and her son on Nov. 11, 1978. Suspicions had been raised when Wicht, 24, had not arrived for a family get-together.

Police said she had been beaten, raped and strangled with a macrame rope. Her 4-year-old son, Donald, had been smothered in his bed, presumably because he might have identified his mother’s killer.

Wicht had dated Coley for two years, but they were “in the process of breaking up,” officials said this week. Coley was held for questioning the same day.

He was ultimately charged with the two murders.

Defense attorneys criticized Simi Valley police for failing to investigate three other possible suspects, according to news accounts at the time. And the Simi Valley Mirror, a weekly tabloid, published reports asserting that investigators had focused on an innocent man.

At Coley’s first trial, jurors spent four weeks deliberating before announcing they were hopelessly deadlocked 10 to 2 in favor of guilt.

A second jury convicted him of two counts of first-degree murder in 1980, and he was sentenced to life in prison without the possibility of parole.

But last fall, Simi Valley Police Chief David Livingstone was going through old news clippings about his department and came across some from the Wicht murders. He reached out to a retired detective who had expressed concerns in the past about whether Coley was guilty. With his interest piqued, Livingstone decided to reopen the case.

Schwartz, the Ventura County prosecutor, said the recent investigation determined that the original detectives decided too quickly that Coley was their man and did not fully investigate other possible suspects — a phenomenon known in wrongful conviction cases as “tunnel vision.”

Three current and former police officers told Brown’s office that the detective at the time had “mishandled the investigation or framed Mr. Coley,” the pardon said. The district attorney’s office has not decided if the detective committed misconduct, Schwartz said, but the investigation is continuing.

“ ‘Framed’ is a strong word,” Schwartz said. “That implies that someone knowingly blamed the wrong person. I doubt that occurred.”

Still, the re-investigation of the case turned up several inconsistencies.

An upstairs neighbor had reported seeing Coley’s truck parked outside Wicht’s apartment around the time of the murder, and saw it drive away shortly afterward. The witness noted the driver’s medium-length hair and the pinstripes along the side of the truck, which matched the description of Coley’s.

That testimony was key to Coley’s conviction, The Times reported at the time.

Exactly 39 years later, on the anniversary of Wicht’s murder, Simi Valley police returned to the apartment complex in the early morning hours and stared out the same window.

“They could see very little,” Schwartz said. “They could see vehicles, but the idea that someone could identify markings on the side of a vehicle is very unlikely. They couldn’t see inside it at all.”

Another neighbor initially told police the murder had been committed at 4:30 a.m. At that same time, Coley was carpooling home with a coworker from his restaurant job, which Schwartz described as “an airtight alibi.”

The second neighbor later testified that the murder had taken place at 5:30 a.m. and denied saying he thought it had happened an hour earlier. Years later, he began to vacillate again.

“That was an indication that the timing may not have been as firm as we thought,” Schwartz said.

Coley was a model prisoner during his 38 years and 10 months of incarceration, Brown wrote. He avoided gangs and drugs, and earned his bachelor’s degree.

“I understand that he’s not bitter, that he has a positive attitude, which I think is quite remarkable,” Schwartz said. “This whole case is tragic. The murder was tragic, and this is a waste of a person’s life.”

Lawyers agree to DNA testing in Swearingen’s death row case

After years of courtroom wrangling, lawyers from both sides are finally agreeing to move forward with DNA testing in the 1998 rape and murder of Montgomery College student Melissa Trotter.

The agreement, expected to be finalized in court papers in the coming weeks, comes just days after a judge called off the pending execution of death row inmate Larry Swearingen, who was convicted in the slaying nearly two decades ago and has since repeatedly professed his innocence.

“They’re doing the right thing,” defense attorney James Rytting said Sunday, pointing to another death row inmate’s alleged plan to confess to the crime as evidence of the need for testing.

A lab would likely evaluate the rape kit, the ligature used to strangle Trotter, finger nail scrapings and hair.

FAMILY’S OUTRAGE: They want answers and an apology

“We’re still working out the details, but I’m excited that Mr. Rytting has finally agreed to allow us to test this DNA,” Montgomery County District Attorney Brett Ligon said Sunday. “I’m glad to be moving forward on this matter.”

Years-long legal battles over DNA testing have become a hallmark of Swearingen’s case, which even sparked changes to state laws regarding post-conviction DNA testing in 2015. Both sides have pushed for DNA testing at times, but always using different legal mechanisms and never in agreement.

At least twice, a trial court judge sided with Swearingen’s testing requests – but each time the state slapped down the lower court’s move, ruling that new DNA wouldn’t be enough to counter the “mountain of evidence” pointing to Swearingen’s guilt.

In 2013, prosecutors filed a failed bid for DNA testing, but the defense opposed.

Now, though, an alleged death row confession plot that could have seen another convicted killer confess to Trotter’s death has sparked new interest in testing.

“Both sides now recognize that there’s a need to test the evidence,” Rytting said.

Swearingen and Trotter were seen in the college’s library together on Dec. 8, 1998 – the day of the teen’s disappearance. Afterward, a biology teacher spotted Trotter leaving the school with a man.

Hair and fiber evidence later showed that she’d been in Swearingen’s car before she vanished.

The killer’s wife testified that she came home that evening to find the place in disarray – and in the middle of it all were a lighter and cigarettes believed to belong to Trotter. Swearingen later filed a false burglary report, claiming his home had been broken into while he was out of town.

That afternoon, Swearingen placed a call routed through a cell tower near FM 1097 in Willis – a spot he would have passed while heading from his house to the Sam Houston National Forest where Trotter’s decomposing body was found 25 days later.

Swearingen was convicted and sentenced to death in 2000, but on Friday a judge approved calling off his Nov. 16 death date – the fifth one scheduled in the case – as a result of a filing snafu.

Back in August,, the Montgomery County District Clerk sent notice of the November execution scheduling to the Office of the Attorney General’s writ office instead of to the Office of Capital and Forensic Writs. Because the law requires notice to the OCFW – which defends death row convicts – to be mailed within two days of the setting of an execution, the date had to be called off. It has not been rescheduled.

Swearingen’s attorneys first pointed out the problem in court papers on Wednesday, filing a motion to withdraw the execution in light of the mistake.

But aside from the clerical issues, Rytting also requested calling off the execution in order “to investigate newly discovered information suggesting that Anthony Shore – a convicted serial killer – has confessed to the murder of Melissa Trotter,” according to court papers.

“Mr. Swearingen will seek to depose Mr. Shore in order to preserve his testimony regarding the nature of any confessions he made, to obtain a DNA sample, and to obtain all other relevant information including documents, recordings and any other evidence concerning Mr. Shore’s connection to Ms. Trotter’s murder.”

Word of the alleged confession scheme emerged on the eve of Shore’s scheduled execution on Oct. 18.

Hours before he was scheduled to die, Shore won a 90-day stay after prosecutors said the four-time killer admitted to an abandoned plan to admit to Swearingen’s crime.

Officials first found out about the possibility of a last-minute confession attempt back in July, when a death row cell search uncovered materials relating to Trotter’s killing – including a hand-drawn map marking the supposed location of more evidence – stashed in Shore’s cell.

The day before his scheduled execution, Shore told investigators he’d only considered confessing to get his friend off, and not because he’d actually committed the additional crime. The multiple murderer also agreed to answer questions about other cases, and a judge greenlit pushing back his first scheduled execution date. He is now slated to die by lethal injection on Jan. 18.

After Death Row in Texas, I’m Fighting to End the Death Penalty – Kerry Max Cook

february 22, 2014

My name is Kerry Max Cook, but for two decades, I was known as “Cook, Execution number 600.” Innocent of the murder and rape I was accused of in 1977, my home became a tiny death row cell in Texas, the state that kills more people than anywhere else in the U.S. by far — including 141 of my fellow inmates before my release in 1999. By then, my only brother had been murdered and my Dad had died of cancer. My Mom died soon after. I was stabbed, raped and routinely abused on death row. My ordeal spanned two generations of the Smith County District Attorney’s office, two wrongful convictions, two reversals of conviction, a walk to the execution chamber, and three capital murder trials. My legal team and I have been unable to find a worse case of prosecutorial misconduct in Texan history.

I avoided a fourth trial only by pleading no contest, while making no admission of guilt. I have never been officially exonerated. Author John Grisham said, “If it were fiction, no one would believe it …”

I am, in fact, innocent. Another man’s DNA was found on the victim’s clothing two months after my release. The Texas Court of Criminal Appeals accused Smith County prosecutors of “willful misconduct” in my case. Nonetheless that office remains determined to stop me clearing my name. My lawyers are working to file an application for writ of habeas corpus in coming months, hopefully prompting the appeals court in Austin to officially exonerate me and end my 36-year-old nightmare.

It all began in 1977. I was 20 and working as a bartender when a waitress said the manager wanted to see me. I stepped into a pitch-black room that was usually lit by fluorescent lighting and fumbled for the switch. Suddenly, hands reached out to grab both sides of me. The silver Smith & Wesson handcuffs crashed down on my wrist and I heard the detective’s words, “Kerry Max Cook, you’re under arrest for the capital murder of Linda Edwards” — a name I didn’t even recognize.

At the police station, they used my head as a toilet plunger. I knew the policeman was lying as he rammed my head repeatedly down the bowl filled with dark urine, screamed at me to confess and told me they had found my DNA on the body. I wept for my mother and father, for anyone, to help.

Even though I still bear the mental and physical scars and ongoing indignities of my wrongful conviction and imprisonment, I consider myself lucky. I have a wife and son. I have powerful allies — including Amnesty International, which found me in a dark cell and helped raise awareness of my wrongful conviction in 1991. It literally saved my life. I was so proud to be introduced by Susan Sarandon at Amnesty’s Bringing Human Rights Home concert in Brooklyn February 5 and address the audience as my 13-year-old Kerry Justice Cook looked on. I was proud to honor a powerful, global movement of activists who carry Amnesty’s torch for human rights — including my right to life. That is why I support Amnesty’s abolition work and the efforts by courageous activists on the ground, most urgently in New Hampshire, where a repeal vote in the state House is anticipated early next month.

The death penalty should be abolished across the United States, and everywhere. We do not need any more mistakes. We know that 143 people have served time on US death rows for crimes they were wrongfully convicted of. And imagine this. On appeal, the only question becomes whether the defendant received a fair and impartial trial. So if the evidence is made up, like in my case, you die.

The price of this system is a life. Of course the odds are stacked in your favor if you have access to financial resources, but you won’t be surprised to hear that you don’t meet too many people like that on death row.

One of death row’s other dirty little secrets is that it is a repository for every conceivable mental illness. Its population consists largely of untreated, traumatized children who grew up into broken adults. There are exceptions, of course, but I do not believe that even the guilty on death row are irredeemable. As Rosalind says in Shakespeare’s As You Like It, “Time is the old justice that examines all such offenders.” If my case proves anything, it is that only time can tell if someone is guilty.

No prosecutor should have the power to end another human life. No other living soul should endure what I did. So I am praying now for victory, by Amnesty International USA and all those who are pushing to end this barbaric practice, in New Hampshire, and everywhere. Then, my nightmare will be over.

Click here to read more about Kerry’s fight for justice, and here to read about his work on self-empowerment.

NEW JERSEY – Exonerated death row survivors spread message to halt death penalty – Kirk Bloodsworth and Shujaa Graham

february 20, 2014

Two men who were on death row before being found to be wrongly accused spoke Thursday night in Newark at the invitation of advocates who would like to abolish the death penalty.

Kirk Bloodsworth and Shujaa Graham, members of Witness to Innocent, shared their experiences at the University of Delaware as part of a series of events supported by a group of local religious leaders and the Delaware Repeal Project.

In the coming days 15 members of Witness to Innocent will attend events at Delaware churches and community hubs, including the Delaware Theatre Company in Wilmington, in an effort to promote Senate Bill 19, which would end the death penalty in the state.

On Saturday, a group of local religious leaders plan to gather to call on state leaders to support the measure during an event at Limestone Presbyterian Church, 3201 Limestone Road, in Wilmington. The public is invited to gather at the church at noon Saturday to speak to members of Witness to Innocent, see a presentation and take part in a roundtable discussion.

Bloodsworth was the first person in the United States to be exonerated by DNA evidence, according to Witness to Innocent, where he serves as director of advocacy. In 1985 he was sentenced to death in Baltimore County, Md., for the murder and rape of a 9-year-old girl. A year later, DNA evidence revealed he was wrongly convicted, according to his profile on the Witness to Innocent website.

Graham was sentenced to death after the 1973 slaying of a prison gaurd in California, according to Witness to Innocent. His conviction was overturned in 1979 by the U.S. Supreme Court. Two years later he was found innocent and released, according to Witness to Innocent’s profile of Graham online.

CALIFORNIA : Man gets death penalty in 1988 murder of pregnant woman – Jason Michael Balcom

february 7, 2014 (latimes)

A man who raped and murdered a pregnant woman in her Costa Mesa home a quarter of a century ago was sentenced to death Friday.

 

Jason Michael Balcom strangled and stabbed 22-year-old Malinda Gibbons in the chest on July 18, 1988.

Her husband, Kent Gibbons, found his wife dead in their apartment, bound and gagged with his neckties. Police said she had been sexually assaulted.

At the time of the crime, Balcom, then 18, was living with his mother and aunt in a Costa Mesa motel less than a mile away from the apartment. He had been  released from juvenile hall just weeks before the murder.

Investigators cracked the cold case more than a decade later when DNA evidence linked Balcom, now 43, to the crime.

Balcom’s DNA was entered into a nationwide database in 2004 after he was convicted of rape in Michigan, where he and his mother moved after the murder.

He was serving a 50-year prison term when Orange County prosecutors extradited him  to stand trial.

In 2012, an Orange County jury convicted Balcom of first-degree murder with sentencing enhancements for murder during commission of sodomy, rape, robbery and burglary. But jurors deadlocked on whether to recommend the death penalty.

A second jury recommended the death penalty last year, a decision that was affirmed in Superior Court on Friday.

 

After decades in prison over murders, DNA evidence frees 2 New York men

february 7, 2014

(CNN) — Two men behind bars for more than half their lives over a triple murder walked free this week after DNA evidence tore holes in their convictions.

Antonio Yarbough and Sharrif Wilson were teenagers when prison doors clanked shut behind them.

Now, in their late 30s, they can hardly believe they’re out.

What does freedom feel like? “I’m still going through it right now,” Yarbough said Friday.”I haven’t slept yet. I’ve been up for two days now. I have no words for it right now.”

Nearly 22 years of hard time

Imagine more than two decades in a maximum security prison. Add to that the fact that you’re accused of killing your mother, your sister and your cousin.

As if that’s not enough, you were the one who discovered their lifeless, bloodied bodies when you opened the door to your home one night.

If it’s hard to imagine what that’s like, Yarbough will tell you.

After years in Attica’s maximum security prison among New York’s toughest criminals, he left its high, gray walls behind him Thursday.

“It was a nightmare,” Yarbough told CNN’s Piers Morgan in an exclusive interview. “Twenty-one years and seven months was more like 42 years and seven months, when you know you’re in prison for something you didn’t do.”

After reviewing DNA evidence, District Attorney Kenneth P. Thompson said the previous convictions for the 1992 murders in Brooklyn would most likely not stand up in court again and agreed the two men should be freed.

“Anybody looking at this evidence with an open mind would see that there is no chance in the world that Tony murdered his mother and these two little girls,” his lawyer Zachary Margulis-Ohuma said.

And that goes beyond the DNA evidence alone. Margulis-Ohuma was convinced Yarbough was innocent years before.

At least one false confession detectives coerced out of a scared teenage boy over 20 years ago led to the convictions.

A night out

After a night of partying, Yarbough, 18 at the time, and Wilson, 15, went home to Coney Island. Wilson was staying with friends, they said.

When Yarbough got home, he opened the door to find his mother, sister and a close family friend lying stabbed and strangled to death. The two girls were partially undressed.

Police came.

“I was asked to come down to the precinct,” he said. Officers said they wanted him to tell them who might have killed his family, he said.

“Before you know it, I had this photograph shoved in my face, and I was being threatened and slapped around, and they wanted me to sign a false confession. And I wouldn’t,” Yarbough said.

Police also took in Wilson and questioned him separately from Yarbough. But he got similar treatment, he said.

“I was scared, afraid; I was lied to, manipulated into believing that I was going to go home, if I do tell … what they said happened.” Wilson said.

Faced with a life behind bars, the young boy cooperated for the promise of lighter treatment.

Life in prison

The two were convicted in separate trials. Yarbough was sentenced to 75 years to life. Wilson got a lower sentence of nine years to life.

They sat behind bars for about 12 years, then something important arrived by mail.

“Out of the blue, I got a letter from his (Yarbough’s) aunt,” Wilson said. “And she asked me, did we really do it. And I had to tell the truth.”

He wrote back to her: “I was wrong for turning on him, but I was scared and pressured into it.” We’re innocent, he told her.

“For many years I felt horrible that I had to do that and that I actually did it knowing that we weren’t guilty for a crime we didn’t commit,” Wilson said.

“I still feel horrible now,” he said, sitting next to Yarbough.

Wilson’s letter led lawyer Margulis-Ohuma and the district attorney Thompson to review their cases in 2010 — five years after he sent it.

Wrongful convictions

Thompson came into office in January with promises to restore justice to the wrongfully convicted. This case is part of a review of Brooklyn killings from the 1980s and early 1990s.

Then, last year, the right shred of evidence came along in the form of a DNA sample from a rape-murder committed in 1999.

It matched DNA found under the fingernails of Yarbough’s mother, indicating that the same killer probably committed both crimes. In 1999, Yarbough and Wilson were in prison and couldn’t have committed the second murder.

Margulis-Ohuma called Yarbough in prison to tell him that he was going to be free.

“When I heard about it, I was extremely overwhelmed,” Yarbough said. “I was happy.”

And the DNA was not the only thing that matched. The m.o. was the same, Yarbough said. The victim was stabbed and strangled.

“Hope had finally started to sink in,” he said.

Free at last

Wilson and Yarbough had not seen each other for more than two decades, when they met in court Thursday.

Wilson approached the man he had testified against. “I just wanted to apologize to him for all I put him through, all I went through.”

Yarbough is still in pain over it, but he faults someone other than Wilson.

“I know what they did to him, because I know what they did to me,” he said.

As to finding his relatives’ killer decades later, Yarbough said, “It’s in God’s hand’s now.” He teared up.

Both men celebrated freedom by fulfilling some longings they had for two decades.

Wilson filled his mouth with a hot slice of New York pizza.

Yarbough filled his lungs with New York air.

TEXAS – CCA Denies DNA Testing in Swearingen Case

UPDATE

 

Court Reverses DNA Testing Decision in Swearingen Case

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.

“Here we are, back where we started,” he said.

february 5, 2014

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.

Swearingen was convicted and sentenced to die for the 1998 murder of 19-year-old Trotter, a Montgomery County community college student who disappeared from her college campus on Dec. 8, 1998. Her body was found several weeks later, by a group of hunters, in the Sam Houston National Forest near Lake Conroe.

Swearingen was seen with Trotter on campus not long before she disappeared. He has maintained his innocence and has been seeking DNA testing for a decade. Among the never-before-tested items of evidence are two lengths of pantyhose – one used to strangle Trotter, found around her neck, the other later found by Swearingen’s former landlord inside a house Swearingen and his wife had previously rented from the man.

The state maintains that visual comparison proves the two pieces came from a single pair of hose. Neither piece has ever been subjected to DNA analysis.

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.

Still, that result is not enough to convince the court that if additional testing were to be performed it would do anything to convince a jury of Swearingen’s innocence. “In order to be entitled to DNA testing,” Womack wrote for the court, “[Swearingen] must show by a preponderance of the evidence (51%) that he would not have been convicted if the exculpatory results were available at trial.”

Indeed, the unidentified profile previously identified was presented to Swearingen’s jury, the court notes, apparently without effect. “Since the jury already was aware that an unidentified male’s DNA was found under the victim’s fingernails, we fail to see how other such results would have changed its verdict,” Womack wrote. “The jury chose to believe that the foreign DNA either was contamination or that it came rom outside the context of the crime.” In short, the court concluded, Swearingen “cannot show that new testing would lead to a different result.”

During a December hearing on the matter before the CCA, Montgomery County prosecutor Bill Delmore told the court that the mountain of circumstantial evidence against Swearingen is insurmountable and that even if further DNA testing revealed additional evidence from another male – even from a known “serial killer” – that he would conclude only that Swearingen had an accomplice. “Nothing will ever convince me of his innocence,” Delmore said.

PAMPA-TX -Testimony ends in Hank Skinner’s DNA hearing

february 5, 2014

PAMPA — A Texas Department of Public Safety expert testified Tuesday that genetic material found on a knife at the scene of a 1993 triple homicide was consistent with Hank Skinner’s DNA profile, but the death row inmate’s defense team maintains that another man killed the family.

Georgette Oden, an assistant attorney general, quizzed DPS expert Brent Hester about a battery of DNA testing results during an evidentiary hearing at the Gray County courthouse.

Testimony ended Tuesday in the two-day hearing, but attorneys for both sides are expected to submit further briefs to District Judge Steven Emmert after court transcripts are completed.

The hearing focused on whether it is “reasonably probable” that Skinner, now 51, would have been acquitted if all DNA evidence in the case had been presented at his 1995 trial, according to court records.

Skinner was convicted of capital murder and sentenced to die in the slayings of Twila Jean Busby, 40, and her sons — 22- year-old Elwin “Scooter” Caler and 20-year-old Randy Busby.

Skinner has claimed he was too intoxicated to have slain the Busbys because he drank vodka and took codeine on the night of the killings.

After the Texas Court of Criminal Appeals halted Skinner’s execution three times due to changing post-conviction law, prosecutors agreed to allow DNA testing, and both sides now have received the results.

Hester, a DPS analyst from the Lubbock crime lab, testified Tuesday that genetic material recovered from the blade of a knife found on the front porch of the victims’ home could be linked to Skinner. Forensic tests on the knife blade, he said, proved the presence of blood on the weapon, and the material found on the knife contained DNA traces from Skinner, Caler and Busby.

“We do not say it was that person’s DNA,” Hester said of how DPS interprets DNA results recovered from a crime scene. “They are not consistent solely with him, but they are consistent with him being a possible contributor.”

Hester also testified that some DNA recovered from the crime scene was contaminated with his DNA and that of a former court reporter who handled evidence in the case. The longtime forensic scientist also testified that some genetic material recovered from a carpet stain, door handles in the home and a door frame could be tied to Skinner.

Hester also said DNA from an unknown individual also was located in the carpet stain, which was in a bedroom where the two male victims were found. Hester said that genetic material could have been deposited when the carpet was originally laid and could have come from nearly anyone who visited the Busby home at 804 E. Campbell St. in Pampa.

Robert Owen, Skinner’s attorney, said after the hearing that testimony showed minute traces of DNA from an unknown person and Twila Busby’s blood had been found on a dish towel that had been left in a plastic bag at the crime scene.

Owen also said the prosecution has claimed that Skinner stabbed Randy Busby in the back while he lay on his bunk bed, but Owen said testimony presented during the hearing casts doubt on the state’s theory.

“If Mr. Skinner stabbed Randy Busby in the manner claimed by the state, Mr. Skinner’s blood should have been on the blanket of Randy’s bed. It was not. If Mr. Skinner’s hands were covered with the victims’ blood when he staggered out of the house, their blood should have been mixed with his on the doorknobs he touched. It was not,” Owen said in a statement.

Owen said a state expert’s testimony also indicated that three of four hairs found in Twila Busby’s hand — hairs the defense said contain DNA consistent with a maternal relative of the victims — were “visually dissimilar” to the victim’s own hair. That testimony, he said, supports the defense team’s conclusion that Robert Donnell, Twila Busby’s now-deceased uncle, killed the Pampa family.

“The state presented no compelling evidence that the hairs could have come from another maternal relative. In fact, Ms. Busby’s mother stated under oath before Mr. Skinner’s trial that she had not been inside the house in the preceding four months,” Owen said in a statement.

Owen also said he was disappointed that Emmert did not allow testimony from a key witness about a jacket found at the crime scene. The witness was prepared to testify the now-missing jacket belonged to Donnell.

“At the DNA hearing, Mr. Skinner sought to present testimony from a witness who can positively identify the jacket as Donnell’s, and to have his DNA expert explain how testing could have confirmed Donnell’s DNA on the jacket,” Owen said in a statement. “We respectfully disagree with this decision. In our view, this evidence is at the center of the case. It shows why a jury that heard all the evidence, including DNA results, would have harbored a reasonable doubt about Mr. Skinner’s guilt.”

Owen also noted that much of the DNA evidence gathered in the case was mishandled, contaminated or lost.

Owen indicated in his statement that “doubts about Hank Skinner’s guilt are far too great to allow his execution to proceed, particularly where the state’s utter failure to safeguard key pieces of evidence may make it impossible to resolve those questions conclusively.”

(Source: Amarillo Globe News)

TEXAS -Day two of death row inmate Hank Skinner’s evidentiary hearing

february 4. 2014

Texas: Assistant attorney general tears down Skinner defense witness

During cross examination of defense witness Dr. Julie Heinig, PhD, a DNA expert from Cincinnati, Ohio, Georgette Oden, an assistant state attorney general, began a systematic dismantling of Heinig’s credentials as an expert witness.

Oden began by pointing out inconsistencies in Heinig’s education, and the witness’ lack of complete training with DNA evidence testing.

As an example, Oden brought out that of the 10 publications written by Heinig for her PhD., five were about lamprey eel research and two were in DNA fingerprint analysis.

Oden then asked if it’s true that Heinig’s employer, DNA Diagnostics Center, does DNA testing for the “Maury Povich Show,” a tabloid television talk show also based in Cincinnati. The lab is often called upon to perform DNA testing in child custody cases that are aired on the TV show.

Heinig answered yes, and Oden countered with, “Then it’s true that your employer’s DNA testing regimens do not follow the standard procedure of the Ohio Department of Public Safety’s crime lab?”

Heinig again answered yes.

Cross examination by Oden then delved into the defense’s contention that many of the blood samples taken were not conclusive for Hank Skinner’s DNA.

In her questioning, Oden asked Heinig if there were any samples of mixed blood that could have excluded Skinner from the crime scene. DNA testing done by the state proved it was inclusive on whether Skinner’s DNA was in those blood samples.

Heining agreed that the tests did not exclude Skinner from the crime scene.

Four hairs were found on Twila Busby’s hand at the crime scene but were not tested. Busby and her two sons were the victims in the brutal triple homicide on Dec. 31, 1993. Skinner was Busby’s live-in boyfriend.

The defense had earlier questioned why the hairs weren’t tested.

The state then brought as its witness John Lan Bundy, a former trace analyst for the Texas Department of Public Safety Crime Lab in Lubbock, whose responsibility at the time was identifying the hairs found on Busby’s hand.

Bundy testified that of those four hairs, one was an animal hair and the other three were not sufficient for laboratory testing because they weren’t attached to their roots.

DNA cannot be taken from a hair unless it has a root and there are obvious differences between human hair and animal hair, he said.

At that point, the state passed the witness to the defense, who chose not to cross examine Bundy.

The hearing recessed shortly after 5 p.m. and will reconvene at 9 a.m. Tuesday.

Pampa, TX – Day two has just come to a close after some 6 hours of discussion, both the state and Hank Skinner’s defense team have rested their cases.

What happens next, is both sides will submit a proposed fining report, basically explaining to the judge why they think he should side with them. After court transcripts are filed, the state and the defense team have 21 days to make those reports. After three weeks, the judge will make a decision.

No official decision has been made regarding death row inmate Hank Skinner. Over the last two days, his defense team tried to create reasonable doubt surrounding evidence that was collected from the 1993 crime scene. The state says DNA points to Skinner as the killer of Twila Busby and her two sons.

(Source: NewsChannel 10)