Posted: Jan 30, 2013 5:49 PM
Updated: Jan 30, 2013 5:50 PM
CONROE, Texas (AP) A state district judge Wednesday withdrew next month's execution date for a 41-year-old convicted killer who now has avoided the Texas death chamber four times.
Judge Kelly Case ordered that Larry Swearingen's Feb. 27 lethal injection be put off indefinitely, clearing the way for DNA testing in his case.
Swearingen is on death row for the 1998 abduction, rape and strangling of Melissa Trotter, a 19-year-old Montgomery County community college student. His attorneys, who include lawyers from the New York-based Innocence Project, contend he didn't kill Trotter and say evidence that was never tested for DNA would support their contention.
Montgomery County prosecutors argued the Texas Court of Criminal Appeals in 2010 ruled that no additional testing should be done in the case and said they were disappointed with the decision Wednesday.
"Mr. Swearingen is probably the most guilty person in Montgomery County when it comes to the death penalty," prosecutor Warren Diepraam said. "These defense attorneys are the kings of stalling, and that's what they're doing."
James Rytting, one of Swearingen's lawyers, called the decision "just."
"The judge recognized the need to have the testing pursuant to the statute, pursuant to the law" Rytting said.
Trotter's body was found in January 1999 in the Sam Houston National Forest south of Huntsville, nearly a month after she was last seen leaving the library at a suburban Houston community college.
Prosecutors said they could do DNA testing without withdrawing Swearingen's execution date. Swearingen's lawyers declined, saying the testing would require much more time and need not be rushed. Case also refused to reset Swearingen's punishment for Aug. 28, as suggested by prosecutors.
"I'm not setting an execution date until I'm satisfied all DNA testing is concluded," Case said.
Swearingen appeared in court wearing a black-and-gray striped county jail jumpsuit. He was chained at the ankles and handcuffed. Case refused a defense request to remove his handcuffs so he could take notes. He said nothing during the roughly two-hour hearing.
Among items Swearingen's lawyers are seeking for testing are fingernail scrapings, the ligature used to strangle Trotter, pantyhose found at Swearingen's mobile home and the jeans of the victim. A section of the pantyhose prosecutors said was used to strangle Trotter was found in the trash outside Swearingen's trailer.
Swearingen and his attorneys have long argued he was in jail on outstanding traffic warrants when Trotter was killed. Her body was found Jan. 2, 1999. She was last seen alive on Dec. 8, 1998. Swearingen was arrested for several outstanding traffic violations three days later after a police chase.
A medical examiner testified at Swearingen's trial in 2000 she believed Trotter was killed the same day she disappeared. But seven years later, she submitted an affidavit changing her opinion, saying the body had been in the forest no more than two weeks.
Swearingen has made similar claims. His execution now has been delayed four times. In the previous three instances, his appeals subsequently were rejected.
"We recognize this is a difficult situation and these cases need to be tested," Bryce Benjet, an Innocence Project attorney, said Wednesday.
Prosecutors insist evidence shows Trotter was killed before Swearingen was arrested, and various experts have given conflicting estimates on the time of death.
Sandy Trotter, whose daughter was killed, said the latest delay was frustrating although she's already been waiting for 14 years for the case to conclude.
"I hope for justice for Melissa, some time in this lifetime or the next," she said.