The Montgomery County District Attorney's Office asked a judge Tuesday to set a Sept. 21 execution date for Larry Swearingen, the Willis man sentenced to death for murdering a teenage Montgomery College student in 1998.
But Swearingen's attorney thinks an ongoing civil rights suit on his case should be decided before any execution date is even suggested.
Swearingen was sentenced to death in 2000 for murdering Melissa Trotter, an 18-year-old Montgomery College student. Trotter went missing Dec. 8, 1998, and was found dead in the Sam Houston National Forest north of LakeConroe.
After years of appellate fights over post-conviction DNA testing, Swearingen filed a federal civil rights lawsuit against the state of Texas in October 2016 claiming he should be entitled to that DNA testing.
Swearingen sought testing on Trotter's sexual assault collection kit; hairs recovered from her body, the gloves used to move her body and a hairbrush found on the ground near her body; all hairs collected from her clothing; the ligature and the pantyhose used to strangle Trotter, among other evidence his appellate attorneys believe contain biological evidence that has not been tested.
"It's premature to even have filed this motion," said Swearingen's attorney James Rytting, adding that he plans on filing a motion opposing the fall execution date sometime soon.
The execution date motion will be decided upon by visiting Judge J.D. Langley in the 9th state District Court. Judge Phil Grant, having previously worked on the Swearingen case during his time with the DA's Office, was recused from the case in June 2016.
But the DA's Appellate Division Chief Bill Delmore said the September date was appropriate and intentionally selected.
"A September date will provide sufficient time to allow a resolution of the civil suit," Delmore said. "I have not found anything that suggested the existence of an appeal from the denial of a DNA motion should preclude going forward on an execution date. I've even seen cases in which the Court of Criminal Appeals has denied a stay (of execution) even when there's an appeal from the denial of a motion for DNA testing pending."
As for the DNA testing, then-9th state District Court Judge Kelly Case approved the testing in August 2014. But subsequent appeals filed by Montgomery County prosecutors blocked it all the way to the Texas Court of Criminal Appeals. Rytting appealed the ruling to the Supreme Court in February 2016, which refused to hear the case in October 2016.
Swearingen has dodged four execution dates – in 2007, 2009, 2011 and most recently in 2013 – that were all stayed by the Court of Criminal Appeals. He's been in and out of the appellate process for more than a decade, including four previous motions for DNA testing which lost their momentum in appeals courts each time.
For Melissa Trotter's family, the September date cannot come soon enough.
"We're definitely ready to be done with all this judicial process," Melissa's mother Sandy Trotter said. "It hinders all of us from healing as we just keep remembering all the bad that happened to Melissa. It's unfinished business yet. It's not going to bring Melissa back. We're never going to have her. But it'd be better to remember the good memories than all this stuff that happened Dec. 8, 1998."
Langley had yet to rule on Delmore's motion as of Tuesday evening, court records show. Swearingen's federal case in the U.S. District Court in the Western District of Texas has yet to be resolved.
In an opinion in October 2015 reversing Judge Case's DNA ruling, the Court of Criminal Appeals referred back to previous rulings it and lower appellate courts had made in Swearingen's case. In the October 2015 ruling, they said Rytting's motion did not meet the five-pronged requirement for green-lighting DNA tests in the appellate phase as outlined in the Texas Code of Criminal Procedure.
Instead, the CCA denied Swearingen's appeal on the basis that he did not provide new information that would show the DNA evidence would prove his innocence.
The court's concurring opinion also referenced a "mountain of evidence" that originally convicted Swearingen in 2000. Delmore called the evidence "overwhelming" in Tuesday's motion.
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