Prosecutor: We'll test DNA if we can still execute you, anyway

Grits found it remarkable that the Texas Court of Criminal Appeals continued to deny death-row Larry Swearingen DNA testing even after the Legislature changed the law this year ostensibly to allow it. See Judge Keasler's ruling denying testing, Judge Yeary's partial concurrence and partial dissent, and Judge Alcala's dissent. (The rulings interpret the version of the statute before this spring's changes.)

The Houston Chronicle's Cindy Horswell had by far the best coverage of the ruling (Oct. 28). This observation, to me, summed up the absurdity of the situation: Montgomery County DA Brett Ligon "said his office has offered to do the additional DNA testing since 2013 - if Swearingen's attorneys' would agree the findings would not alter the outcome of the case." So, he's willing to have DNA testing performed so long as Swearingen can still be executed if he turns out to be innocent ... the mind reels!

In that light, the Court of Criminal Appeals denying testing makes little sense to this non-lawyer observer. Killing Swearingen without testing guarantees questions will hang over the case because of such an aggressive, disingenuous stance by the DA, which is reminiscent to this writer's mind of John Bradley's years-long battle to deny DNA testing to Michael Morton. Bradley made similar claims about the overwhelming evidence of Morton's guilt right up until DNA evidence cleared him. So if evidence of Swearingen's guilt really is "overwhelming," testing the evidence should be no big deal. But when you're talking about capital punishment, it's better to know than assume.

Swearingen is represented by Bryce Benjet of the national Innocence Project, where "attorneys are mulling over whether to file yet another motion to seek DNA testing under this revised statute," Horswell reported.