On Wednesday, October 28, 2015, the State’s highest court in criminal matters reversed Judge Kelly Case’s 2014 order for DNA testing in the capital murder case of Larry Ray Swearingen. Swearingen was convicted in 2000 of capital murder in the 1998 death of Melissa Trotter, an eighteen year old college student whose body was found in the Sam Houston National Forest more than two weeks after her disappearance. Swearingen previously sought DNA testing in 2004, 2008, and 2009, but then-District Court Judge Fred Edwards denied the motions, each of which was upheld by higher courts. In 2013, Judge Case’s first month on the bench, Swearingen again sought DNA testing. Judge Case granted the request, but the Court of Criminal Appeals reversed Judge Case, again concluding that Swearingen failed to meet the threshold requirements for court-ordered testing established by law. This was his fifth request for DNA testing of evidence in the case and was filed approximately three months after the Court of Criminal Appeals reversed the previous ruling.
This time, Judge Case’s ordered DNA testing of scrapings from Trotter’s fingernails, cigarette butts found near her body, Trotter’s clothing, and two separate pieces of pantyhose. One of the pantyhose pieces was wrapped around Trotter’s neck, and the other was found among Swearingen’s belongings at his home. Microscopic analysis confirmed that the pieces were originally part of the same pair. The Court of Criminal Appeals held today that the case was materially unchanged since the 2010 and 2014 appeals. The Court explained that no additional evidence had been presented since the 2014 appeal, where the Court of Criminal Appeals held Swearingen failed to prove that favorable DNA results would have resulted in a different outcome at trial, in light of the “mountain” of other evidence against him.
“This brings to a close yet another unnecessary step in the path to justice in this case,” District Attorney Brett Ligon said. “Our office recognized the need for closure in this case and offered to arrange for immediate testing of the evidence at the beginning of 2013. It appears Swearingen would rather postpone his execution than seek the truth, because he declined our offer, and Judge Case seems happy to play along.”
Also today, an intermediate court, the Ninth Court of Appeals, reversed Judge Kelly Case, this time for dismissing a yet another online solicitation of a minor case when he lacked the authority to do so.
On May 1, 2015, Judge Case called the case of James Anthony Messina, but the prosecutor handling that case was not in the courtroom. According to the State’s filings, the court staff was personally aware the State was seeking a continuance with the agreement of opposing counsel, and the staff informed the prosecutor that counsel for Messina would need to appear to sign the scheduling order. When counsel for Messina mentioned her agreement for a continuance, Judge Case asked her if that was what she wanted. Another prosecutor in the courtroom offered to contact the absent prosecutor to arrange her appearance, but she was informed it was unnecessary to do so. Minutes later, Judge Case announced he was dismissing the indictment based on the prosecutor’s absence from the courtroom, despite the presence of attorneys for the State who were prepared to handle the matter.
The Ninth Court of Appeals reversed Judge Case’s order. As the Ninth Court of Appeals noted, the Court of Criminal Appeals—the State’s highest criminal court—concluded almost twenty-five years ago that a trial court may not dismiss a case because the prosecutor does not appear.
This case marks the second of three online solicitation of a minor cases dismissed by Judge Case in the past year. On April 1, 2015, one month to the day before Judge Case dismissed the present case, the Ninth Court of Appeals reversed Case’s October 29, 2014 order dismissing the online solicitation of a minor indictment against Michael Massingill, after concluding that Case improperly dismissed it. In July, Case dismissed an online solicitation of a minor indictment against Daniel Paquette after concluding that the entire statutory provision was unconstitutional. That case is still pending in the court of appeals.
“We waste an inordinate amount of time and money fixing Judge Case’s improper rulings,” stated District Attorney Brett Ligon. “It’s unfortunate that we continue to have to fight just to get these cases to disposition. It wastes jail time costs, appointed attorney fees and staff time costs, not to mention the obvious public safety risk these offenders pose.”