Judge tells state to just test the damn DNA

Jeff Gamso has been fighting the good fight for longer than I'm sure he cares to remember. As a blogger, his work is "can't miss" reading. And his calls to just test the damn DNA are loud and clear.

On Wednesday in Montgomery County, of all places, a newly elected judge, Kelly Case, told the state to just test the damn DNA in Larry Swearingen's case. Mr. Swearingen was scheduled to be murdered by the state of Texas on February 27.

Now that proposed execution date has been pushed back to allow DNA testing on evidence found near the crime scene. A motion to test the evidence, based on a 2011 statute, was filed by Barry Scheck and The Innocence Project.

Judge Case has given both the state and Mr. Swearingen 60 days to file responses to Mr. Scheck's motion.

Ironically enough, it was Judge Case's predecessor, Fred Edwards, who denied Mr. Swearingen's motion for new trial late last year. Mr. Swearingen's attorneys had filed a motion for new trial based upon newly discovered evidence regarding decomposition science. Mr. Edwards ruled that decomposition science was a novel scientific theory and needed to be proven reliable in a pretrial hearing before he would consider it.

And that's where the irony comes in. As anyone who has tried a criminal case can attest, the general rule regarding scientific evidence in criminal trials is if it benefits the state, it's in; but, if it benefits the defense, it's out. Judges have had no problem allowing junk science into evidence when it's offered by the state - just take a look at the Cameron Willingham case.

Bite mark evidence, bullet composition evidence, tire mark evidence, "scent" lineups, psycho-babble about someone being a future danger to society. The list goes on. It's all been allowed in in the past because it helped the state obtain convictions. But, when the shoe is on the other foot and it's the state's ox that might get gored - then the judges slam on the brakes.

What happened in Conroe should be the rule, not the exception. If we're talking about taking the life of another person then we better be damn sure it's the right person. If there is DNA evidence that can be tested to determine if the person sentenced to die really did the crime - it should be tested. The stakes are too high to let the state play games. Either you got the right person, or you didn't.

I understand the fears of the state. We like to pretend that our criminal (in)justice system is fair and that it works. The truth, of course, is that it isn't and it doesn't. But to allow the public to look behind the curtain and see an innocent man released from death row shakes the public's confidence in our system to its core. And the fact that the process may have been fair but the result was a miscarriage of justice is cold comfort to those affected by an wrongful conviction and imprisonment.