Wednesday, January 30, 2013

Spectacular News in the Swearingen Case

Larry Swearingen's death warrant has been withdrawn and comprehensive DNA testing has been ordered by recently elected State District Judge Kelly Case. From Brandi Grissom's article in the Texas Tribune:
Update, Wednesday, Jan. 30, 5 p.m.: Montgomery County state district court Judge Kelly Case on Wednesday withdrew an order that had set the execution of condemned murderer Larry Swearingen for Feb. 27. The judge's decision came after a hearing in which Swearingen's lawyers argued that more time was required to accomplish DNA testing they believe will prove his innocence in the 1998 murder of Melissa Trotter. 
Montgomery County assistant district attorney Bill Delmore said he was disappointed with the decision, the first ruling in the case from the newly elected judge. Delmore said that prosecutors had offered to conduct the testing at the state's expense in an expedited manner that would allow the execution to proceed as scheduled. Swearingen's lawyers, however, declined. 
"Their refusal to negotiate on the timing of doing the testing between now and the execution date suggests their motion was primarily for the purpose of delay," Delmore said. 
Bryce Benjet, a lawyer for the New York-based Innocence Project who is representing Swearingen said that more time is needed to conduct the complicated testing that is necessary in the case. 
"We hope the district attorney will agree to conduct testing within the law so that Larry Swearingen can finally get the testing that can dispostively prove his innocence," Benjet said.
Previously, Assistant District Attorney Bill Delmore had said he hadn't read Swearingen's latest motion for DNA testing but would probably oppose it. Then District Attorney Brett Ligon agreed to DNA testing but insisted it be done expeditiously so as not to delay the execution. Now Judge Case has put an end to that nonsense and ordered both the testing and the time necessary to do the testing properly.

Last November, Judge Case defeated State Court District Judge Fred Edwards the general elections. Judge Edwards is the judge who recently ignored the science that proves Swearingen innocent by denying a new trial. (See The Most Innocent Man on Death Row)

If Preston Hughes had James Rytting as his attorney or had Judge Case ruling on his Motion of DNA Testing, Hughes would be alive today. It is due to such vagaries that one innocent man on death row is granted DNA testing while another is given the needle.

UPDATE: January 31, 2013
According to the Houston Chronicle, Judge Case did not order that DNA testing be conducted. Instead, he gave the prosecutor 60 days to respond to Swearingen's motion for DNA testing. The article does make clear that Swearingen's execution has been stayed. The article suggests that it could be three to four months before there is a hearing on Swearingen's Chapter 64 motion for DNA testing.  This is still really good news.