Senator Rodney Ellis, Exoneree Michael Morton, Innocence Project and Other Lawyers Urge Legislature to Fix Texas’ DNA Testing Law


Contact: Paul Cates,

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(Austin, TX – October 1, 2014) Senator Rodney Ellis, exoneree Michael Morton and Innocence Project and other lawyers gathered at a press conference at the Capitol today to urge lawmakers to amend Texas’ DNA testing law.


“When the legislature amended the DNA testing law in 2011, we intended to give people broad access to DNA testing that could prove innocence,” said Senator Rodney Ellis. “Unfortunately the Court of Criminal Appeals has issued decisions narrowly interpreting the statute, so we need to make it crystal clear that those accused and convicted of crimes should have broad access to this important evidence.”


Michael Morton, who wrongly served 20 years for the murder of his wife before he was exonerated by DNA testing, added, “I had to fight over a decade while in prison for the testing that not only proved my innocence but also solved another subsequent murder. If DNA testing can shed light on a criminal case, by all means, it should be permitted.”


The state legislature amended the Texas statute in 2011 after the Court of Criminal Appeals denied testing to death row inmate Larry Swearingen, who has argued for years that he is innocent of the murder of a 19-year-old college student. The new law, Chapter 64 of the Texas Code of Criminal Procedure, was amended to provide the broad right to conduct DNA testing on essentially all crime scene evidence that can yield probative evidence of innocence. Specifically, the revisions sought to address advances in DNA technology that now enable scientists to identify DNA profiles from skin cells and other microscopic biology recovered from crime scene evidence. The 2011 revisions also required that profiles be uploaded to both the state and federal DNA database to see if they matched to a known criminal offender.


Despite the fact that the 2011 revisions were passed almost unanimously in the House and Senate and signed into law by Gov. Rick Perry, the Court of Criminal Appeals again denied Swearingen access to testing in a February 2014 decision. Although the court acknowledged that courts must consider testing of skin cells (which are microscopic), the court placed an impossible burden on the defendant that he or she prove that the microscopic materials exist before testing is granted. The court also refused to acknowledge that having the ability to upload profiles to the state and federal databases can produce critical proof of innocence, as it did in the Michael Morton case and many others.


“The one truth I have learned in my two decades work with the Innocence Project is that you simply can’t predict what DNA testing is going to reveal,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “In Michael’s case, testing of a bloody bandana found near his home led police to real perpetrator Mark Allen Norwood. In other cases it has confirmed guilt. But when an investigative tool can shed light on a criminal prosecution, those seeking to prove their innocence should have broad access to it.”


Kathryn Kase, Executive Director of Texas Defender Service and a member of the Timothy Cole Advisory Committee on Wrongful Convictions, added, “Unfortunately these court decisions mean the law also needs to be fixed for criminal defendants who are seeking testing before a conviction because both statutes contain the same language. We’re hopeful the legislature will take these matters up as soon as it goes back in session. There are a number of people facing execution right now who are seeking testing, so there is no time to waste.”


Innocence Project staff attorney Bryce Benjet was also at the press conference and pressed the need for a prompt change in the law. Bryce noted the case of death row inmate Rodney Reed, who is scheduled to be executed on January 14, 2015 and still has not been allowed to test critical pieces of crime scene evidence that could prove his innocence. Reed has always maintained his innocence of the 1996 rape of Stacey Stites and his lawyers maintain that testing of a belt used to strangle the victim and other evidence handled by the murderer will prove that the crime was committed by an alternative suspect.


Benjet asks, “Why on earth would we want to execute a man, without conducting DNA testing which can answer serious questions pointing to innocence?”


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