- Associated Press - Monday, February 9, 2015

AUSTIN, Texas (AP) - A Texas lawmaker has proposed legislation intended to fix issues created by a 2011 law he authored that makes crime-scene DNA testing difficult for convicts.

“There were a few things that we had neglected to really verify,” said Nina Morrison, senior staff attorney for the New York-based Innocence Project, who helped Democratic Sen. Rodney Ellis write both the 2011 bill and the new proposal. “It could have been clearer.”

Ellis detailed his new bill at a press conference Monday with the Innocence Project and several former inmates who have been exonerated, including Michael Morton, who was imprisoned for 24 years for a murder he didn’t commit before DNA testing cleared him.

The bill would clarify the Texas Code of Criminal Procedure, which currently states that a convicted person may request testing of “evidence containing biological material.” The change would permit testing on evidence that is reasonably likely to contain biological material, including invisible items such as skin cells and sweat.

Last year, the Texas Court of Criminal Appeals narrowly interpreted the code in a ruling on a death row inmate’s request for DNA testing. Larry Ray Swearingen had asked the court to test a piece of pantyhose used to strangle Melissa Trotter in 1998.

“All evidence to be tested must first be proven to contain biological material,” wrote Justice Paul Womack in the majority opinion.

Swearingen’s request was denied because he hadn’t proven that there was DNA on the pantyhose.

“As it stands now, we have something of a Catch-22 in Texas,” Morton said. “You can’t prove what you don’t have.”

Under the current interpretation of the law, Morton said his request for DNA testing on a bandanna - which was then tied to Mark Alan Norwood, who was later convicted in the 1986 murder - would have been denied, too.

Morrison said the Swearingen ruling identified parts of Ellis’ 2011 bill that were unclear. A later decision demonstrated that the code was subject to different interpretations, and it was obvious that the court needed clarity on legislators’ intentions.

“The court has asked for guidance, and we ought to give it to them,” Ellis said.

Since the Texas law that permits post-conviction DNA testing was implemented in 2001, DNA testing has cleared 52 people who were wrongfully convicted of a crime, Ellis said, and evidence has helped identify the actual criminals in 21 of those cases.


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