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Senator vows to expand DNA testing in innocence claims

Arguing that the state’s highest criminal court watered down a law designed to free innocent people from prison, a state senator vowed Wednesday to introduce, and pass, legislation allowing for expanded DNA testing of crime-scene evidence.

Sen. Rodney Ellis, D-Houston, said a February ruling by the Court of Criminal Appeals interpreted the 2011 law too narrowly, “making it difficult for folks to secure DNA testing that can prove their innocence and identify actual perpetrators.”

“This decision, respectfully, is out of touch with tremendous advances in science that we’ve made in regard to DNA testing,” he said.

In its February ruling, the appeals court unanimously denied DNA testing for death row inmate Larry Swearingen, ruling that his lawyers had not established that there was biological material on several items Swearingen wanted to test, including pantyhose used to strangle the victim, Conroe college student Melissa Trotter.

The ruling leaves inmates in a catch-22 — unable to get DNA testing unless they can prove the existence of biological material that cannot be revealed without testing, said Michael Morton, who was exonerated by DNA evidence in 2011 after 25 years in prison.

It is “an impossible bar to meet,” said Morton, who joined Ellis at a Capitol news conference Wednesday.

Barry Scheck, co-director of the Innocence Project of New York and one of Morton’s lawyers, said modern tests can identify DNA from skin cells and sweat transferred onto items of clothing, including the pantyhose from the Swearingen case.

Knowing who touched a murder weapon “would be an important, critical clue in a criminal case, particularly post-conviction if you want to prove somebody innocent. But just by looking … I can’t tell whether there’s enough biological material here to get the result one would need from the DNA test — until I actually test it.”

Similar tests on a bandana led to Morton’s exoneration and identified Mark Alan Norwood, who has since been convicted in the 1986 murder of Morton’s wife, Christine, in their Williamson County home.

In 2011, the Legislature overwhelmingly approved an Ellis measure to allow inmates to seek DNA testing on evidence that could potentially establish their innocence, as long as the evidence had not yet been tested or was subjected to less-reliable, now-obsolete testing.

The bill, signed by Gov. Rick Perry, specified that the potential evidence could include saliva and skin cells.

A bill is still being drafted for the 2015 legislative session, which begins in January, but Ellis predicted that addressing the appeals court decision would require a “minor fix” specifying that the Legislature intends to have courts lean toward granting, not denying, DNA tests.

“I want to make this legislative fix so it is abundantly clear that this Texas Legislature meant want we said … with regard to testing material that might exonerate someone,” Ellis said.

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