IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
WESTERN DISTRICT
DAMIEN WAYNE ECHOLS PETITIONER
VS. NO. CR 93-450 & 450A
THE STATE OF ARKANSAS RESPONDENT
MOTION FOR FORENSIC DNA TESTING
Pursuant to Arkansas Code § 16-112-202 et seq. (2001); Art. 2 §§ 8, 9,13, and 29 of the Arkansas Constitution; the Eighth Amendment's prohibition on cruel and unusual punishment, and the Fourteenth Amendment's guarantee of equal protection and due process of law, DAMIEN WAYNE ECHOLS (hereafter "Mr. Echols"), by counsel, respectfully moves this Court to order the release of the biological evidence secured in relation to the trial which resulted in his three capital murder convictions and death sentences, to a reputable laboratory or laboratories for the purpose of having forensic DNA testing performed. Specifically, Mr. Echols seeks to have Short Tandem Repeat ("STR") and/or mitochondrial DNA testing ("mtDNA") conducted on biological evidence including, but not limited to: (1)
--semen stains on the victims' pants;
--the remainder of the victims' clothing ( i.e., the items of clothing which are not presently known to contain biological material but which may, upon reanalysis with the more sophisticated technologies now available, turn out to contain such material),
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(1) ARK CODE ANN. § 16-112-204(b)(2) provides that the court may, at any time prior to its decision on the merits, permit amendments to a motion for forensic DNA testing. The General Assembly no doubt contemplated that amendments might be necessary as examination and evaluation of the biological evidence proceeds, since it might come to light that additional evidence was collected of which the movant was unaware when he first filed his motion, or the significance of which did not become apparent until thereafter. Accordingly, although counsel assure the court that this Motion represents our best effort to identify all potentially testable biological evidence collected in this case, we cannot give equal assurances that amendments may not become necessary as events unfold.
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-- foreign hairs recovered from the victims' bodies and clothing;
-- tissue on the ligatures used to bind the victims;
-- oral, nasal, anal, and penile swabs taken from the victims;
-- fingernail scrapings taken from the victims;
-- all hairs recovered from the crime scene;
-- urine which was contained in the stomachs of two of the victims;
-- a knife found in the ditch where the victims' bodies were recovered;
-- cigarette butts found in a plastic pill bottle near the crime scene;
-- contents of a bag found near the crime scene, containing, inter alia, items of clothing and two razors;
-- a cotton rope found at the crime scene;
-- the white sheets in which the victims' bodies were transported to the Medical Examiner's Office;
-- the white paper on which the victims' clothing was dried before being examined;
-- the knife belonging to John Mark Byers admitted as Defense Exhibit Number E6 at trial;
-- the DNA extract obtained from the John Mark Byers knife by Genetic Design, the laboratory to which it was submitted in 1994;
-- two knives recovered from suspect Richard Cummings;
-- tissue (item Q37) recovered from one of suspect Cummings' knives;
-- the head hair fragments recovered from the handle of a knife found near the crime scene;
-- any other knife recovered in the course of the investigation of this offense;
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-- any other biological evidence collected in the investigation of this case which has been "lost" but may be found in the future. (2)
The requested forensic DNA testing was unavailable at the time of Mr. Echols' trial. It is capable of providing powerful exculpatory evidence. It will establish Mr. Echols' innocence of the crimes for which he was convicted. The grounds for this motion are fully set forth below.
Furthermore, Mr. Echols requests that this Court issue an order directing the preservation of the evidence in question while this Motion for Forensic DNA Testing is pending. Mr. Echols also requests a hearing to determine the location of evidence reported "lost" and to make the showings required under ARK. CODE ANN. § 16-112-202.
FACTS (3)
1. The forensic evidence recovered and the analyses performed on it
On May 5, 1993, three eight-year-old boys -- James Michael Moore ("Michael Moore"), Steve Edward Branch ("Steve Branch") and Christopher Mark Byers ("Chris Byers") -- went missing in West Memphis. They were last seen playing in the late afternoon/early evening near the Robin Hood Woods. The boys' parents notified the police. One officer who responded to the Byers residence was called away to the "Bojangles" fast-food restaurant to investigate a report of an
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(2) It also remains open to the court, in the event that any of the requested testing identifies DNA evidence which excludes Mr. Echols or his co-defendants as its source, to order further testing to determine whether any of the other numerous suspects identified in the course of the investigation may be linked to that DNA evidence. As noted infra, law enforcement officers took hair, blood, saliva, and/or semen samples from those suspects in the course of the investigation. Mr. Echols reserves the right to request such additional testing, depending on the outcome of the initial testing.
(3) A fuller recitation of the facts (in the light most favorable to the State) appears in the Arkansas Supreme Court's opinion on direct appeal, Echols & Baldwin v. State, Ark. 917, 935-941, 936 S.W.2d 509, 516-519 (1996).
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unknown man who was described as bleeding. (T. 772-773). The "Bojangles" restaurant was located a mile or so away from the Robin Hood Woods. (T. 777).(4)
The following day at approximately 2:30 p.m., the bodies of the missing boys were discovered in a ditch containing water approximately 24 to 30 inches deep. Each of the three victims was naked, had various cuts on his body, and was tied hand to foot. Investigators wrapped each body in a white sheet and transported them to the medical examiner's office. (T. 1090).
From the stream, the West Memphis Police Department collected the boys' clothing which included: a blue Cub Scout shirt (E1); (5) a black and white shirt "with a square pattern" (E2); a pair of blue pants (E3); one white tennis shoe (right) (E4); a blue and yellow Cub Scout cap (E5); one black shoe (left) with a purple interior (E6); a pair of blue jeans with a blue wallet (E7); one black shoe (right) with a purple interior (E8) ; one striped shirt "with a surf board design" (E9); one pair of child's underwear (E10); one white tennis shoe (right) (E11); one black shoe (right), size 3, with one white sock (E12); one pair of blue jeans (E13); one black shoe (left), size 3 (E14); (T. 896-918) . See Appendix A. Police also collected a wooden stick (E17) and other physical evidence from the crime scene. Id. Police reported that there was no visible blood on the ground and no knives were recovered in the immediate area of the crime scene. (T. 813).
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(4) After the boys' bodies were discovered, police returned to the "Bojangles" restaurant to inquire about the unknown bloody man who had appeared there on the night the boys disappeared. (T. 810). They took blood scrapings from inside a door. (T. 943). Remarkably, given that these scrapings were taken after the boys' bodies had been found and thus at a time when the potential significance of such evidence could not have been mistaken, the police never sent these blood samples to the laboratory and subsequently claimed to have "lost" them. (T. 944-945).
(5) These "E" numbers are the identification numbers assigned to each item of evidence by the law enforcement agencies that collected them. We attach as Appendix A three "reports of laboratory analysis" from the Arkansas State Crime Laboratory, each dated "06/29/93," which describe these items of evidence and the analyses performed on them.
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Associate Medical Examiner Frank Peretti performed the autopsies. Michael Moore had lacerations and abrasions about his body, some defensive wounds, lip injuries consistent with forced oral sex or a punch or slap, and life-threatening head injuries. (T. 1045-52). Dr. Peretti attributed Michael Moore's death to "multiple injuries [and] drowning."
Steve Branch had head injuries (a large abrasion on the back of the head and underlying skull fracture), chest injuries, lower extremity injuries, upper extremity injuries, back injuries and evidence of having been submerged. Branch also had injuries to his genital area, including fine linear scratches on his penis. (T. 1057). Dr. Peretti attributed these scratches to some kind of tight binding or sexual abuse (T. 1058) , and Steve Branch's death to "multiple injuries [and] drowning." (T. 1061)
Chris Byers had a fractured skull and injuries to his neck, leg, back, arm and genital area. Dr. Peretti concluded that some of Byers' injuries occurred perimortem and some postmortem. (T. 1064). Byers' genitals were mutilated. (T. 1066). Dr. Peretti described these injuries as requiring both knowledge of anatomy and a very sharp instrument to inflict. Dr. Peretti testified that he himself could not have inflicted this injury within 5-10 minutes, even in a laboratory setting and using a scalpel. (T. 1112). Dr. Peretti testified that there were serrated patterns to the wounds. (T. 1067-68)
The following evidence was collected from Michael Moore: fingernail scrapings (FP2, FP3); shaved head hairs (FP5); combed head hairs (FP7); ligatures (FP6); and oral, anal, nasal, and penile swabs and smears. See Appendix A.
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The following evidence was collected from Steve Edward Branch: head hair combings (FP1); fingernail scrapings (FP3, FP4); shaved head hair from wounds (FP5); ligatures (FP6); and oral, anal, nasal, and penile swabs and smears. See Appendix A.
The following evidence was collected from Christopher Mark Byers: oral swabs and slides (Q1), rectal swabs and smears (Q2), nasal swabs and smears (Q3), hair found on the body (FP3); fingernail scrapings (FP4, FP5); hair found on lower body (FP6), shaved head hair from wounds (FP7); ligatures (FP8, Q4); hair from perineum (FP9), white sheet (FP10). See Appendix A.
Urine was found in the stomachs of two of the boys. See Appendix B (Letter from Inspector Gary Gitchell to Kermit Channel at Arkansas State Crime Laboratory, dated 5-26-93; item (9) "Dr. Peretti mentioned finding urine in the stomach of two boys").
Blood was found in each of the boys' oral and nasal swabs. See Appendix C (two "reports of laboratory analysis" from the Arkansas State Crime Laboratory, dated 06/02/93) and Appendix D ("report of laboratory analysis" from the Arkansas State Crime Laboratory, dated 06/01/93).
At the Crime Laboratory, the boys' clothing was laid on white paper to dry. That paper was preserved. Appendix I.
The Medical Examiner's Office and the West Memphis Police Department forwarded the biological evidence to the Arkansas State Crime Laboratory for analysis. See Appendices A, C. The results of this analysis were introduced at trial through prosecution witness Kermit Channell, (6) a forensic serologist. Mr. Channell testified that he examined State's Exhibit 48 (Q-6), a pair of blue jeans, and State's Exhibit 45 (Q-10), a pair of pants, for the presence of blood and semen. (T. 1325).
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(6) Mr. Channell's surname appears to be misspelled "Chanel" throughout the trial transcript. We use the spelling that appears on the laboratory reports bearing his signature.
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While Mr. Channell "could not determine if there were any blood present" on either item, he testified that his laser screening of both pants revealed possible semen stains in several areas. (T. 1326-7, 1328). Mr. Channell took several cuttings from the jeans and tested them for the presence of acid phosphatase, an enzyme found in semen. (T. 1327, 1328). This test was positive for the presence of semen. (1328) (7) The presence of semen stains on the pants of the pre-pubescent boys was of obvious importance.
Mr. Channell also testified that he examined State's Exhibit 80 (Q-39), ligature/shoestrings recovered from Michael Moore, and State's Exhibit 82 (Q-4), ligature/shoestrings recovered from Chris Byers. (T. 1324). Mr. Channell identified three to four very small pieces of material, thought to be cuticle tissue, which could be seen with the naked eye. He testified that he recovered this possible tissue from both State's Exhibit 80 and 82. (T. 1324). Mr. Channell submitted the pant and jean cuttings as well as the ligatures to Genetic Design Laboratories for further analysis.
Prosecution witness Michael DeGugliemo, the director of forensic analysis for Genetic Design, performed DNA testing on the items, using the less advanced testing techniques then available. As Mr. DeGugliemo testified, two types of DNA analysis were available at the time: RFLP and PCR-based DQ Alpha. (T. 1385). Mr. DeGugliemo testified that he examined the pants and jeans cuttings from State's Exhibit 48 and 25 (labeled as Q6 and Q10 respectively). (T. 1386).
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(7) While Mr. Channell also conducted a P30 test which suggested the presence of semen, he felt the results of that test were unreliable. The reason he thought the P30 test was unreliable, however, was because after obtaining the positive reaction from one area, he "did further work with a controlled area which was just as dirty or silty as the other questioned areas." (T. 1328.) On this controlled area, he "received a reaction...which could be considered consistent with a...positive P30." Id. Mr. Channell apparently inferred that this result suggested that the earlier P30 result was a false positive; however, it is equally possible that there was semen on the area Mr. Channell was using as his "control," since the condition of the fabric and the fact that it had been submerged made finding a pristine "control" area difficult.
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Since the stains were "questioned," Mr. DeGugliemo performed differential extraction, i.e., he separated the sperm cells from any other biological material that might be present. (T. 1387). DeGugliemo testified that "(i)n this test [we] detected small amounts of DNA in the sperm or male component of the two specimens we were testing." (T. 1388). He continued that it was a "marginal amount, meaning it was basically at the threshold of what we might be able to detect using the analysis, but it was definitely DNA that was there." (T. 1388). In the sperm fraction Mr. DeGugliemo found a small amount of DNA. (T. 1389).
Mr. DeGugliemo also performed testing on the tissue recovered from the ligatures of Chris Bryers and Michael Moore (labeled by Crime Lab as Q-4, and Q-39, respectively). (T. 1384). Mr. DeGugliemo testified that his DQ Alpha testing of the ligatures "failed to reveal the presence of any detectable amounts of DNA." (T. 1385). Mr. DeGugliemo further testified that this result could mean that the tissue was "either too small and degraded so that we were not able to obtain DNA from it." (T. 1386).
The Arkansas State Crime Laboratory also examined the victims' clothing, the sheets in which their bodies had been wrapped for transport to the Medical Examiner's office, and other items for hair evidence. Numerous human hairs were recovered. See Appendix A. A Caucasian hair was recovered from the ligatures which bound Chris Byers. Two hair fragments were recovered from the shaved head hair of Steve Branch. A dark brown dyed hair of unknown origin was recovered from the combed head hair of Steve Branch. A light brown Caucasian hair of unknown origin was recovered from the Cub Scout cap. Numerous Caucasian hairs were recovered from a bag of clothing and other items found near the crime scene. See Appendix A (item "BR1"); see also
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Appendix F. (8) Hair removed from a tree root at the crime scene consisted of a brown Caucasian hair, possibly a pubic hair. See Appendix A (item "LS1"). A single Negroid hair fragment was recovered from "FP10," the white sheet in which Chris Byers's body was transported. Appendix A; see also T. 1471-72. A brown Caucasian possible pubic hair fragment was recovered from "E134," a knife with a black leather sheath. See Appendix A. A single Caucasian hair was recovered from the perineum of Christopher Christopher Byers. Appendix A.
In the course of investigating this triple homicide, the West Memphis Police collected pubic hair, head hair, blood and saliva samples from several suspects ( i.e., suspects other than Mr. Echols and his co-defendants Jason Baldwin and Jessie Misskelley), including Kenneth Cagle, Richard Gordon Cummings, Jr., Steve Menard, John Mark Byers, Roy Todd Moore, and Christopher Morgan. See Appendix D ("Suspect Samples," Items K2 through K38, described as having come from Damien Echols, Richard Cummings, Steven Skaggs, Thomas Polletta, Tim Dodson, William Welch, Robert Deangelo, Robert Burch, Daniel LeFler, Tracy Laxton, James Martin, Anthony Barnes, Lance Renshaw, David Looney, Joe Gooch, Michael Headlee, Charles Morton, Thomas Holland, Christopher Morgan, Steve Menard, John (Mark) Byers, Roy Todd Moore, L.G. Hollingsworth, Michael Leiter, and Charles Craig).
Criminalist Lisa Sakevicius of the Arkansas State Crime Laboratory reported only on those hairs determined to be of forensic value. (9) See Appendix A. Ms. Sakevicius identified two foreign
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(8) Appendix F contains two items: (1) a memorandum of a conversation between investigator(s) and criminalist Lisa Sakevicius, noting that "A lot of hair on items at scene. Lisa is referring to separate clothing found close to pipe. On shirt a lot of hair around collar states this is typical;" and (2) a "report of laboratory analysis" dated 09/29/93, reflecting that "Two (2) Caucasian head hair fragments were recovered from the handle of [knife] E147," with handwritten notation, "Crime lab report on knife found at scene."
(9) Of course, Sakevicius' judgment -- that some of the many human hairs of unknown origin recovered from the
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brown Caucasian head hair fragments recovered from the shaved head hair of Steve Branch. See Appendix A. In her initial examination, Ms. Sakevicius reported observing microscopic similarities and dissimilarities between the two foreign hairs and known hair samples from Mr. Echols. According to Sakevicius, however, the hair sample obtained from Mr. Echols was inadequate and additional samples were needed for a more accurate comparison. See Appendex E. Ultimately Sakevicius concluded that the foreign hair fragments recovered from Steve Branch were microscopically similar to pulled head hairs from Mr. Echols and those from Tim Dodson (another suspect). Appendix A. While noting that some of the pulled head hairs from Dodson and Mr. Echols were similar to each other, Sakevicius stated that the hair fragments were "of this type and could have a common origin with either [Dodson] or [Echols]." Appendix A.
In addition, a Caucasian hair recovered from the ligatures that bound Chris Byers was found to be microscopically similar to known head hair samples from Jason Baldwin, consistent with having a common origin as the Jason Baldwin head hair sample. Appendix G.
The prosecutors requested the assistance of the Alabama Department of Forensic Sciences in further analyzing the hair evidence. See Appendix H. Forensic Scientists John H. Kilbourne and Roger Morrison initially examined the hair evidence at the Arkansas Crime Laboratory and then conducted further examination after the hair evidence was transferred to the Alabama Department of
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victims and the crime scene had no "forensic value" -- was made by reference to the now-discredited practice of microscopic hair comparison. In other words, Sakevicius described hairs which were inappropriate for such "comparison" as having "no forensic value." As explained infra, however, even hairs useless for "comparison" purposes can have definite (indeed, far greater) "forensic value" as a source for mitochondrial DNA which can be extracted and compared. Moreover, Ms. Sakevicius' report concludes that "It is possible that hairs not deemed of significant forensic value at the time of this report will become significant upon the submission of additional standards," and notes that all "hairs and fibers will be retained in the Laboratory pending possible future comparisons." Appendix A.
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Forensic Sciences, Huntsville Division laboratory. This evidence included: K1 (four slides of known hairs of Steven Branch); K2 (three slides of known hair of Chris Byers); K3 (four slides of known hairs of Michael Moore); K4 (nine slides of known hair of Damien Echols); K5 (three slides of known hairs of Jason Baldwin); K6 (one slide of known hairs of Jessie Misskelley); Q1 (one slide bearing one hair, labeled as "93-05717 FP5 QH shaved hair Branch"); Q2 and Q3 (one slide bearing two hairs labeled "93-05717 FP shaved Branch LS 5-20-93"); Q4 (one slide bearing two hairs labeled "9305716 E5 QH Boy Scout Cap LS 5-18-93, [uniform belonged to Michael Moore]); Q5 (one slide bearing one hair labeled "93-05716 E 148 QH inside shoe LS 10-14-93"); Q6 (one slide bearing one hair labeled "93-05716 E127LS1 QH Tree (root stump) LS 6/9/93"); Q7 (one slide bearing one hair "93-05716 E134 QH LS 6-14-93"); Q8 (one slide bearing one hair labeled "93-05716 E148 QH shoe lace LS 10-14-93"); Q9 (one slide bearing one hair labeled "93-05718 FP8 QH ligature Burns LS 5-18-93"); Q10 (one slide bearing one hair labeled "93-05718 FP6 QH lower leg vict. LS 5-14-93"). See generally Appendix H.
Items Q1-Q9 were examined and compared to the known samples. Q1 and Q2 consisted of two shaved Branch hairs, hairs with razor cut proximal ends. Kilbourne reported these hairs exhibited some similarities to both the known hair of Mr. Echols and that of Tim Dodson. Appendix H. Kilbourne concluded that these hairs could have originated from one of these individuals or another individual whose hair exhibits similar microscopic characteristics. Id. Q10, a hair collected from the lower leg of one of the victims, exhibited according to Kilbourne microscopic characteristics consistent with the known hair of Mr. Echols. Id. Kilbourne concluded that this hair could have originated from Mr. Echols or another individual whose hair exhibited similar microscopic characteristics. Id. Kilbourne stated that the remaining questioned ("Q") hair samples
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were either dissimilar to the known hairs of the suspects or in Kilbourne's opinion lacked sufficient microscopic characteristics for an adequate comparison. Id.
Biological material was identified on Defense Exhibit E6 (from trial), a "Kershaw" folding knife which had belonged at the time of the murders to John Mark Byers, Chris Byers's father, whom the defense intimated might have had a role in his son's death. Dr. Peretti testified that Exhibit E6 was consistent with some of Chris Byers's wounds. (T. 1085). The police received this knife on January 8, 1994 (T. 1252) and submitted it to Genetic Design, a DNA laboratory, because there appeared to be some blood and unknown substance on the knife. (T. 1275). Michael DeGuglielmo testified that there appeared to be some blood or tissue in a crevice in the knife. (T. 1390). He performed DQ Alpha DNA testing, the only type of DNA testing then available. The results indicated that the blood on the Kershaw knife was consistent with both Chris Byers and John Mark Byers. The testing could not further differentiate between father and son. (T. 1391-92).
At least two other knives recovered in the course of the investigation from suspect Richard Cummings were identified as having biological material on them. See Appendix D (noting that "Blood, too limited in quantity for further characterization," was identified on Q44 (Knife E-58 from Richard Cummings), and that tissue was recovered from Q37 (Knife E-27 from Richard Cummings)).
A shirt recovered from suspect Steve Menard likewise tested positive for blood. See Appendix D (noting that "human blood" was identified on Q52 (shirt from Steve Menard, item E-50)). The prosecution was sufficiently interested in Mr. Menard as a suspect that it had its own DQ Alpha DNA testing performed on this item by Mr. DeGuglielmo at Genetic Design.
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A plastic pill bottle was recovered near the crime scene containing cigarette butts, which often contain biological material now testable through DNA technology that did not exist at the time of Mr. Echols' trial. See Appendix J (Item E-177, "plastic bottle containing cigarette butts").
A shirt found at the residence of Jessie Misskelley tested positive for blood. DQ Alpha type DNA testing showed that the blood was the same DQ Alpha type as both Michael Moore and Jessie Misskelley. See Appendix K (noting that "human blood, too limited for further characterization, was identified on Q85 [described as "T-shirt (E-114)"]); see also T. 1332 (statement of prosecutor Fogleman during colloquy that "There was human blood identified, and it [the T-shirt] was sent to Genetic Design, and [it] was the same DQ Alpha type [as] Michael Moore, and also the defendant Jessie Misskelley").
2. Procedural history (required by ARK. CODE ANN. § 16-112-203(a)(2) and (a)(3)).
Mr. Echols was tried and convicted in Craighead County on three counts of capital murder (for the deaths of Michael Moore, Steve Branch, and Chris Byers) in cause number CR-93-450. The judgment of conviction and sentence was entered on March 19, 1994.
Mr. Echols' conviction was affirmed on direct appeal. Echols & Baldwin v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied; Echols v. Arkansas, 520 U.S. 1244 (1997). He raised the following issues on appeal: (10) (1) sufficiency of the evidence to convict, Echols, 326 Ark. at 937-941, 936 S.W.2d at 518-519; (2) failure of the jury to find the mitigating circumstance that he had no significant prior history of criminal activity, Echols, 326 Ark. at 941-943, 936 S.W.2d at 520; (3) denial of a separate trial, Echols, 326 Ark. at 943-945, 936 S.W.2d at 521-522; (4) denial of motions
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(10) We note that several of these issue categories contained multiple sub-issues. See Echols, 326 Ark. at 937, 936 S.W.2d at 517-518 ("Echols' and Baldwin's arguments together contain forty-four points of appeal, and some of those points have subpoints. Some of the points of appeal are made by both appellants, but many are
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to supress evidence, Echols, 326 Ark. at 949-954, 936 S.W.2d at 524-527; (5) admission of improper evidence at trial, Echols, 326 Ark. at 954-971, 936 S.W.2d at 527-536; (6) allegedly improper comments by the trial court, Echols, 326 Ark. at 971-973, 936 S.W.2d at 536-538; (7) improper demonstration during closing argument, Echols, 326 Ark. at 974-975, 936 S.W.2d at 538-539; (8) improper questioning of Mr. Echols during his testimony, Echols, 326 Ark. at 976-977, 936 S.W.2d at 540; (9) improper rebuttal testimony by Dr. Duke Jennings, Echols, 326 Ark. at 978-979, 936 S.W.2d at 540-541; (10) improper admission of a serrated-edged knife, Echols, 326 Ark. at 979-980, 936 S.W.2d at 541-542; (11) improper admission of wooden sticks found at the crime scene, Echols, 326 Ark. at 980-981, 936 S.W.2d at 542; (12) denial of mistrial after a police witness improperly mentioned the confession of co-defendant Jessie Misskelley, Echols, 326 Ark. at 981, 936 S.W.2d at 542-543; (13) the court's giving of an accomplice witness instruction, Echols, 326 Ark. at 981-982, 936 S.W.2d at 543; (14) a challenge to the death penalty as per se cruel and unusual punishment, Echols, 326 Ark. at 982, 936 S.W.2d at 543; (15) unconstitutional "overlapping" between capital murder and first degree murder, Echols, 326 Ark. at 982-983, 936 S.W.2d at 543-544; (16) that Ark. Code Ann. § 5-4-603 is unconstitutional because it mandates a death sentence upon certain findings, Echols, 326 Ark. at 984-985, 936 S.W.2d at 544; (17) that ARK. CODE ANN. § 5-4-604(8) is unconstitutionally vague, Echols, 326 Ark. at 985-988, 936 S.W. 2d at 544-546; (18) that his death sentence is unconstitutionally disproportionate, Echols, 326 Ark. at 988-989, 936 S.W.2d at 546; (19) that his attorneys were not paid, denying him the assistance of counsel and due process, Echols, 326 Ark. at 989-990, 936 S.W. 2d at 546-547; (20) that the trial court committed cumulative error, Echols, 326 Ark. at 990, 936 S.W.2d at 547; and (21) that the trial court had
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individual arguments. For clarity, we group the arguments into seven general categories.").
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improper contact with the jury, Echols, 326 Ark. at 990-991, 936 S.W.2d at 547-548.
Mr. Echols then sought post-conviction relief under AR.Cr.P.37.5. He filed an original petition on or about March 11, 1997, and was granted leave to amend that petition on several occasions, the last being on or about July 16, 1998. Mr. Echols alleged the following grounds for relief in his post-conviction proceeding: (1) that newly discovered evidence demonstrated Mr. Echols' actual innocence; (2) that trial counsel labored under a conflict of interest; (3) that he was denied counsel and the effective assistance of counsel at both stages of trial and on appeal; (4) that ARK. CODE ANN. § 5-4-604(8) was vague and overbroad, both facially and as applied; and (5) that he was denied his constitutional rights for multiple reasons previously asserted on direct appeal (and raised again in the post-conviction proceeding "to avert the State's anticipated claim that failure to raise these issues in Rule 37 constitutes abandonment of them"). The Circuit Court ultimately denied relief on June 17, 1999.
On Mr. Echols' timely appeal, the Supreme Court affirmed in part, and reversed and remanded in part, the Circuit Court's judgment denying relief; it directed the Circuit Court to enter further findings on some of Mr. Echols' claims. Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001). Those findings, denying relief, were entered on July 30, 2001. Mr. Echols' timely appeal of that judgment is pending.
On or about February 27, 2001, Mr. Echols filed a petition in the Arkansas Supreme Court Seeking to have that court reinvest jurisdiction in the Circuit Court for purposes of considering a petition for writ of error coram nobis. His petition to reinvest jurisdiction was accompanied by the proposed coram nobis petition and extensive exhibits. The proposed coram nobis petition raises three issues: (1) whether Mr. Echols was competent at the time of trial; (2) whether he was
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improperly administered psycho-active medication during trial; and (3) whether the State concealed exculpatory evidence. The Supreme Court ordered briefing on the issues presented by the petition. Briefing is complete and a decision is pending.
3. Names and addresses of counsel (required by ARK. CODE ANN. § 16-112-03(a)(4)(A)).
Barry C. Scheck
Cardozo Law School
55 5th Avenue
New York, New York 10003
(212) 790-0368
Edward A. Mallett
Mandell & Wright, LLP
712 Main St. Ste. 1600
Houston, Texas 77002-3297
(713) 228-1521
Al Schay
300 Spring St., Suite 515
Little Rock, Arkansas 72201
Mr. Echols now seeks to have forensic DNA testing performed, using the Short Tandem Repeat (STR) method currently employed by the State of Arkansas and the FBI in conjunction with their respective DNA database systems. Mr. Echols also seeks mitochondrial DNA testing ("mtDNA"), a technique now relied upon by law enforcement agencies throughout the country. Just last year, the Arkansas General Assembly established the right of a convicted person who asserts his innocence, like Mr. Echols, to obtain post-conviction DNA testing. The recently added sections of the Code reflect the General Assembly's recognition of the need to provide a procedural mechanism for wrongfully convicted persons to seek exoneration through DNA testing.
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ARGUMENT
ARK. CODE ANN. § 16-112-202 provides, in pertinent part, that a person convicted of a crime may, for purposes of demonstrating his actual innocence, move the court in which the conviction was entered to have forensic DNA testing performed on evidence secured in relation to the trial which resulted in his conviction. ARK. CODE ANN. § 16-112-202(a)(1)(A) & (2). ARKANSAS CODE §16-112-125 further directs that the court shall order such testing if:
(i) the evidence was not subject to the testing because either the technology for the testing was not available as evidence at the time of the trial or the testing was not available as evidence at the time of the trial;
(ii) a prima facie case is made that identity was an issue in the trial;
(iii) a prima facie case is made that the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect;
(iv) the testing sought has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant's assertions of actual innocence; and
(v) the testing requested employs a scientific method generally accepted within the relevant scientific community.
1. The Evidence Was Not Subject to the Requested DNA Testing Because Either the Technology Was Not Available as Evidence at the Time of the Trial or the Testing Was Not Available as Evidence at the Time of the Trial.
Mr. Echols seeks to have STR and/or mtDNA testing performed on biological evidence collected in connection with the murders of Michael Moore, Steve Branch and Chris Byers, for which he was convicted and currently awaits execution. Mr. Echols' convictions in this matter
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indisputably became final before the STR and mtDNA technologies were readily available and admissible as evidence. The STR DNA testing system was not developed until the mid-1990s. See Commonwealth of Massachusetts v. Rosier, 425 Mass. 807, 685 N.E.2d 739 (1997) (first court opinion to mention STR testing, noting that STR testing was commercially unavailable until "several years" after 1991); Postconviction DNA Testing: Recommendations for Handling Requests, (Pub. No. NCJ 177626 of the U.S. Department of Justice's National Institute of Justice, Office of Justice Programs) (Sept. 1999) at 28 (report published in 1999 notes that "DNA testing at a number of STR locations will likely replace RFLP and earlier PCR-based tests in most laboratories throughout the United States and the world.").
Similarly mtDNA evidence was not admitted as evidence in a court until 1996. C. Leland Davis, Mitochondrial DNA: State of Tennessee v. Paul Ware, Profiles in DNA, Vol. 1, No.3 (1998). Indeed, the FBI Laboratory did not even begin conducting mtDNA examinations on evidentiary samples until June 1996. Alice R. Isenberg and Jodi M. Moore, "Mitochondrial DNA Analysis at the FBI Laboratory," in Forensic Science Communications, Vol. 1, No. 2 (July 1999) (a publication of the U.S. Department of Justice, Federal Bureau of Investigation), at 1 (available online at http://www.fbi.gov/hq/lab/fsc/backissu/july1999/dnalist.htm). Thus, both the STR and mtDNA technologies satisfy the requirement of ARK. CODE ANN. § 16-112-202(a)(1)(B).
2. Identity Was an Issue in the Trial.
Identity was an issue in Mr. Echols' trial.
Generally, "when courts speak of identity in a criminal case, they are referring to whether the defendant was indeed the perpetrator or whether somebody else committed the crime." People v.
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Hockenberry, 737 N.E.2d 1088, 1091 (Ill. App. 2000). Therefore, under post-conviction DNA statutes requiring that identity was an issue at trial, a convicted person seeking testing must make a prima facie showing "that there was an issue at trial as to whether the defendant or somebody else committed the crime." Id at 1091. See also People v. Rokita, 736 N.E.2d 205, 210 (Ill. App. 2000) (identity was "the" issue at defendant's trial for aggravated criminal sexual assault, permitting defendant's post-conviction attempt to obtain forensic DNA testing, where basis of defense at trial was that defendant was not the person who assaulted victim, and defense counsel argued at closing that "[T]his is simply a case of mistaken identity.").
Hockenberry is instructive on the distinction between when identity is, and is not, at issue. The defendant (Hockenberry) sought post-conviction DNA testing under § 116-3 of the Illinois Code (11) in order to support his claim of innocence of aggravated criminal sexual assualt of his ex-wife and of home invasion. Like ARK. CODE ANN. § 16-112-202(b)(1), § 116-3(b) requires a prisoner seeking DNA testing to present a prima facie case that "identity was the issue" in the trial that led to his conviction. The Hockenberry court considered separately whether identity was at issue with regard to the charges of home invasion and aggravated criminal sexual assault.
At trial, Hockenberry had testified that he was present in his ex-wife's home, but claimed that he entered it with her consent and that he did not sexually assault her. The court found that identity was not an issue as to the home invasion charge, since at trial Hockenberry had admitted entering the victim's residence at the time in question and had asserted consent as a defense to this charge. Id. at 1092. In addition, the victim had testified that Hockenberry entered her residence through the back door and without her consent, and the back door itself was broken, corroborating
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(11) The full cite of the relevant statutory section is Ill. Stat. Ch. 725, Act 5, Tit. VI, Art. 116, § 116-3
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her testimony. In light of Hockenberry's admission and the other evidence, the court found there was no dispute at trial as to Hockenberry's identity as the person who entered the victim's residence. Id.
The court, however, rejected the State's assertion that identity could not be an issue with respect to the second charge because the victim had identified Hockenberry as her attacker. At trial, although Hockenberry admitted being present in the victim's residence, he denied having engaged in any sexual act with her. Following the alleged offense, seminal stains were found on the victim's underwear and bed sheet. Vaginal swabs taken from the victim also revealed the presence of semen. Given Hockenberry's denial that he had any sexual contact with the victim, the appellate court concluded that the identity of the perpetrator of the sexual assault was necessarily an issue at Hockenberry's trial. Id. at 1092. The court reached this conclusion even though the police had found Hockenberry naked and asleep at the victim's kitchen table: "[a]lthough such evidence certainly corroborated the State's theory that the defendant had committed a sexual act on the victim, it was in direct conflict with the defendant's testimony that he did not... ." Id. Accordingly, the court held that the identity of the perpetrator was an issue in the case. Id.
The same reasoning should apply here. Plainly, the General Assembly included § 16-112-202(b)(1) in the Arkansas DNA testing statute to preclude post-conviction requests from defendants who did not dispute at trial their participation in the events underlying the criminal charge. Put another way, if the defendant at trial conceded his participation in those events -- but argued that he committed no crime ( e.g., because he acted in self-defense, or under duress, or with consent, or without the necessary criminal intent) -- then there is no issue of "identity" that would justify post-conviction DNA testing. This follows because the primary evidentiary value of DNA evidence is to prove that a particular person (or biological material from that person, which is generally the same
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thing) had contact with a particular thing or person, or was present in a particular place. Where a defendant has conceded that he had such contact, or was present where the events underlying the charge took place, equitable principles counsel against permitting him to "change his story" in post-conviction proceedings. ARK. CODE ANN. § 16-112-202(b)(1) thus prevents a defendant from taking a position (regarding his involvement in the events underlying the charge) after trial that is inconsistent with his position at trial -- which promotes the General Assembly's ultimate purpose of "punish[ing] the guilty and exonerat[ing] the innocent," (12) since it is reasonable to assume that an innocent person will continuously maintain his innocence, rather than changing his story to suit new potential defenses that might become available based on emerging scientific technologies.
As the Arkansas Supreme Court acknowledged on direct appeal, with respect to the defense mounted by Mr. Echols and his co-defendant Jason Baldwin, "The defense of each [was] that he did not commit the crimes." Echols, 326 Ark. at 946, 936 S.W.2d at 522. The "essence" of Mr. Echols' defense at trial, as characterized by the Arkansas Supreme Court, was "an alibi...that he was visiting friends with his parents when the murders took place." Id. Likewise, Jason Baldwin "presented an alibi defense that relied upon the fact that he was in school the day of the murders, was at home by ten o'clock that night, and was never placed near the scene." Id., 326 Ark. at 946, 936 S.W.2d at 522-523. These findings by the Arkansas Supreme Court compel the conclusion that the defense at trial indisputably placed the "identity" of the assailants in issue as contemplated by § 16-112-202(b)(1).
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(12) See A.C.R.C. Notes, Acts 2001, No. 1780, §1.
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3. The Evidence Has Been Subject to a Chain of Custody Sufficient to Establish That It Has Not Been Substituted, Tampered With, Replaced, or Altered in Any Material Aspect.
Ever since the biological evidence in this case was collected, it has remained with the State. With respect to the evidence actually introduced at trial, of course, the State was obliged to establish a proper chain of custody in order to introduce it. With respect to any other items of evidence collected by the State and still in its possession, there is no evidence of tampering or other reason to suspect that the evidence is not authentic. When the General Assembly enacted ARK. CODE ANN. § 16-112-202(b)(2), requiring that Mr. Echols show that the evidence "has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect," it is presumed to have done so in awareness of existing Arkansas law, (13) which recognizes that
The purpose of establishing the chain of custody is to prevent the introduction of evidence which is not authentic. To prove its authenticity the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with.
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(13) Bunch v. State, 344 Ark. 730, 736, 43 S.W.3d 132, 136 (2001) (General Assembly is presumed to legislate with "full knowledge" of preexisting judicial decisions); Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991) (when legislature uses term of art which has been defined in Supreme Court caselaw, Court will presume it was aware of, and intended, that definition); Matter of Adoption of Samant, 333 Ark. 471, 475, 970 S.W.2d 249, 251 (1998) (in construing statute, Court presumes "that the General Assembly knew of [its] decisions made pursuant to the preexisting law on the same subject"), citing McLeod v. Santa Fe Trail Transp. Co., 205 Ark. 225, 168 S.W.2d 413 (1943).
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Gomez v. State, 305 Ark. 496, 502, 809 S.W.2d 809, 814 (Ark. 1991) (citations omitted); see also, e.g. Gardner v. State, 263 Ark. 739, 763, 569 S.W.2d 74, 86 (Ark. 1978) ("in the absence of evidence indicating tampering with the evidence," trial court is within its discretion in finding chain of custody satisfied); Koontz v. State, 2001 WL 196948m *2-*3 (Ark. App. 2001) (notwithstanding "gaps" in chain of custody, including absence of proof regarding how many people handled "rape kit" at crime lab before tests were conducted on its contents, trial court was within its discretion in finding chain of custody sufficient). Thus, this Court may not treat § 16-112-202(b)(2) as imposing any stricter "chain of custody" requirement on Mr. Echols than the common-sense one which applies to the State under Arkansas caselaw, namely, that he show a "reasonable probability" that the evidence he proposes to test "has not been altered in any significant manner." (14) Mr. Echols can make that showing.
Equally important, Mr. Echols seeks DNA testing of, in part, semen/sperm evidence, a type of biological material whose very nature and characteristics provide the most reliable method for determining whether the evidence has been contaminated. The reason is because the biological material in the seminal stains on the jeans must be broken open to permit access to the DNA material itself, and the walls of sperm cells are more difficult to break open than those of other cells. This
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(14) The "reasonable probability" standard has been uniformly described by courts around the country, including the U.S. Supreme Court, as "not stringent," requiring a showing by less than a preponderance of the evidence. See, e.g., Nix v. Whiteside, 475 U.S. 157, 175 (1986) (reasonable probability standard less demanding than preponderance standard); Williams v. Taylor, 529 U.S. 362, 404-06 (2000) (treating "reasonable probability" as a preponderance standard is not just incorrect but objectively unreasonable); Sharkey v. State, 672 N.E.2d 937, 940 (Ind. App. 1996) (reasonable probability is less than a preponderance); State v. Calloway, 718 So.2d 559, 563 (La. App. 1998) (same); Commonwealth v. Hickman, 2002 WL 987988 (Penn. Super. Ct. 2002) ("reasonable probability test" is "not a stringent one," citing Nix); Skaggs v. Parker, 235 F.3d 261, 270-271 (6th Cir. 2000) ("[A] petitioner [claiming error under this standard] need not prove by a preponderance of the evidence that the result would have been different..."); Hull v. Kyler, 190 F.3d 88, 110 (3rd Cir. 1999) (same); Paters v. United States, 159 F.3d 1043, 1049 (7th Cir. 1998) (Rovner, J., concurring) (same); Belyeu v. Scott, 67 F.3d 535, 540) (5th Cir. 1995) (same).
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provides an internal control which virtually assures the integrity of the sample when semen/sperm evidence is involved. Even if the biological evidence consists of skin cells as well as sperm cells -- for example, the skin cells of a police officer or lab technician on the samples or swabs -- any DNA from any source other than the donor(s) of the sperm will be removed before the sperm samples themselves are tested, as follows. When the seminal stain is tested, the technician will use a mild detergent to break open all non-sperm cells, allowing her to extract the DNA from those cells and leave behind only the intact sperm cells. The sperm cells then will be separated -- ensuring that no contamination or other irregularity could affect them -- before a second, stronger, detergent is used to break them open for the extraction of the DNA material inside. Thus, the very testing Mr. Echols seeks, by its nature, provides reasonable certainty that the semen/sperm was not altered, substituted or contaminated prior to analysis, in any way that would affect the results of the analysis.
Finally, DNA testing of hair evidence involves analysis of the root (STR testing) or the hair shaft (mitochondrial testing). Hair is remarkably stable over long periods of time and contamination of hair evidence is not an issue. Moreover, much of the hair evidence Mr. Echols seeks to have tested has been preserved on slides since it was originally recovered from the crime scene and the bodies of the victims. No evidence exists to suggest that these hairs have been substituted or replaced while in the State's possession, mounted on slides.
With respect to all the evidence he seeks to have tested, Mr. Echols can prove a satisfactory chain of custody as defined by the Arkansas cases cited supra.
4. The Testing Has the Scientific Potential to Produce New, Noncumulative Evidence Materially Relevant to the Defendants' Assertions of Actual Innocence.
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STR and mtDNA testing in this case could result in new, noncumulative evidence, materially relevant to Mr. Echols' assertion of actual innocence. The technology available at the time of the trial, DQ Alpha DNA testing (which was unable to yield results), has been replaced by STR and mtDNA testing. Two advantages of the STR system are that it "can be used with degraded samples" and that it "permits analysis of extremely small amounts of DNA." SeeThe Future of Forensic DNA Testing: Predictions of the Research and Development Working Group, (Pub. No. NCJ 183697 of the U.S. Department of Justice, National Institute of Justice, Office of Justice Programs) (Nov. 2000) at 41. In fact, STR can be used to amplify very small amounts -- less than one billionth of a gram -- of DNA. Id. at 39. If examination of the evidence reveals that STR testing may not be feasible ( e.g., the human hairs lack roots or there is insufficient biological material on the ligatures), the evidence could be subjected to mtDNA analysis. Mitochondrial DNA testing is appropriate and highly probative where there exists "very little or highly degraded nuclear DNA" for which other forms of DNA testing are inappropriate. Moreover, mtDNA testing can be performed on the shaft of a hair, obviating the need for a root. Postconviction DNA Testing: Recommendations for Handling Requests, (Pub. No. NCJ 177626 of the U.S. Department of Justice, National Institute of Justice, Office of Justice Programs) (Sept. 1999) at 28.
DNA testing of the sperm recovered on the pants of one of the three pre-pubescent victims is of obvious significance. Given the circumstantial evidence that the victims were sexually assaulted at or near the time they were killed -- including the presence of sperm on one victim's pants, the fact that the boys were found naked, the fact that Chris Byers had been surgically emasculated (T. 1112-1113), the fact that Steve Branch had injuries to his penis consistent with binding or some kind of sexual torture (T. 1058), and the fact that the boys had mouth injuries consistent with forced oral sex
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(T. 1046, 1101) -- there is every reason to believe that the sperm belongs to the real killer. The same is true for the urine in the stomachs of the two boys, see Appendix B, because given the evidence of forced oral sex, it is equally possible that the urine in the boys' stomachs resulted from sexual abuse by the person(s) who killed them. (15) Likewise, the swabs (oral, nasal, anal, and penile) taken from the victims may contain evidence which was not evaluated given the limitations of the available technology prior to Mr. Echols' trial. For example, it appears that the swabs were tested only for the presence of blood and semen, see Appendices C and D, and not for saliva (or foreign saliva, in the case of the oral swabs). This is particularly significant in the case of the penile swabs, which if the boys were sexually assaulted could contain the saliva of their attacker. (16)
Kermit Channell's examination of several cuttings from one pair of jeans -- State's Exhibit 48 (Q-6) -- revealed sperm. (T. 1327, 1328) . Although analysts were unable to obtain a DNA profile using the relatively less sophisticated PCR-based DQ Alpha testing available at the time, subsequent advances in DNA technology make it mandatory to reexamine all clothing of the victims for the presence of sperm and to conduct STR or mtDNA testing on all sperm evidence identified. (17)
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(15) The potential value of urine as a source for human DNA for forensic identifications is illustrated by the fact that the FBI Handbook of Forensic Sciences provides detailed instructions on how to collect and preserve urine samples for that purpose. Seehttp://www.fbi.gov/hq/lab/handbook/examsdna.htm. See also Amy L. Smuts and Pamela D. Pogue, "DNA From Urine As A Potential Source of Identification," (http://www.promega.com/geneticidproc/ussymp10proc/abstracts/38Smuts.pdf) (a study "attempt[ing] to evaluate the usefulness of extracting nuclear and mitochondrial DNA" from urine; using a mitochondrial amplification, the researches were able to extract "sufficient amounts of clean template DNA" to permit identification of the DNA profile obtained).
(16) "DNA can be typed from saliva deposited on...cups, bottles, telephone mouthpieces, bite marks and penile swabs." (emphasis added). Seehttp://www.genelex.com/paternitytesting/paternitybook2/html
(17) The Department of Justice has emphasized that in determining which samples to test in a post-conviction context, "it may be important to reevaluate/analyze previously collected samples to determine if there [are] samples containing stains or other biological samples that had not been detected previously...." Postconviction DNA Testing: Recommendations for Handling Requests, (Pub. No. NCJ 177626 of the U.S. Department of
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For the same reason, the white paper on which the boys' clothing was laid to dry, see Appendix I, should also be examined and tested, as biological material may have been transferred by contact or osmosis from the clothing to the paper.
STR DNA testing of the sperm left on the victim's jeans or any other item of evidence from this case, if it excludes Mr. Echols or either of his codefendants as the donor, will constitute material exculpatory evidence that would conclusively demonstrate Mr. Echols' innocence.
In addition, the genetic profile from the sperm on the victims' clothing could be compared to those contained in state and national DNA databanks. Such a search might well result in a match between the DNA profile from the victim's jeans and that of a convicted ( i.e., known) offender, or a profile recovered from the scene of an unsolved crime committed since Mr. Echols has been in custody. The FBI's CODIS database alone currently contains 686,867 searchable convicted offender profiles and 25,164 searchable forensic profiles. According to the FBI, entering DNA profiles into CODIS has aided 3,323 investigations around the country, and this number grows each month. (18) DNA evidence has exonerated the wrongly convicted in 102 cases -- and in more than twenty of those cases, DNA databanks have also led to the identification of the actual perpetrator. (19)
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Justice, National Institute of Justice, Office of Justice Programs)(Sept. 1999) at 23. This is certainly the case here.
(18) See http:/www.fbi.gov/hq/lab/codis/aidedmap.htm.
(19) For example, DNA evidence exonerated Frank Lee Smith, who had been sentenced to death for rape and murder, and who had served twenty-one years in prison. Smith died of cancer on Florida's death row, about one year before DNA testing exonerated him. A database search of the unknown assailant's DNA pofile identified the actual perpetrator, Eddie Lee Mosely, who had been a suspect in numerous rapes and murders. See Paula McMahon and Andy Friedberg, DNA Clears 21-Year Inmate Reverses 2 Murder Cases; 4 Others Await, SOUTH FLORIDA SUN-SENTINEL (April 28, 2001). Another man, Jerry Townsend, was also exonerated through DNA after being convicted of another crime actually committed by Mosely. Likewise, Kevin Greene, who had served seventeen years in prison for attacking his wife and killing her unborn fetus, was released when a DNA database search identified a serial murderer as the actual assailant. See John McDonald,
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Prosecution witness and forensic analyst Kermit Channell also testified that he identified and recovered biological material from the ligatures used to bind the victims. (T. 1324). DNA testing of the skin cells left on the ligatures may reveal the presence of DNA which does not belong to the victims or to Mr. Echols, and which would likewise constitute material exculpatory evidence which, alone or in conjunction with other exculpatory DNA results, will prove Mr. Echols' innocence. (20) The DNA profile(s) thus obtained can similarly be searched through the state and federal DNA databanks and may match a convicted offender or evidence from an unsolved crime which Mr. Echols could not have committed.
Finally, at the State's direction, microscopic hair comparison analysis was performed on some of the evidence recovered from the crime scene and the victims' bodies. The results of this analysis purportedly linked Mr. Echols and Mr. Baldwin to the crime. Forensic analyst Kilbourne concluded that foreign hair recovered from Steve Branch's head exhibited some similarities to the known head hair of Mr. Echols and that a hair collected from the lower leg of one of the victims exhibited microscopic characteristics consistent with the known hair of Mr. Echols. On the basis of these comparisons, Kilbourne concluded that these hairs could have originated from Mr. Echols.
-------------------------------- Exonerated O.C. Man Supports Evidence Tests, ORANGE COUNTY REGISTER (Sept. 21, 2000), at B06. Finally, Keith Williamson (sentenced to death for rape and murder) and Dennis Fritz (sentenced to life imprisonment for the same crime) were both exonerated when DNA evidence (run through a DNA database) identified Glen Gore as the actual perpetrator. See Diana Baldwin, Experts Disagreed on Hair Analysis, DAILY OKLAHOMAN (May 27, 2001), at 1A.
(20) Indeed, handwritten notes on a "Criminal Investigation Field Report" form which appear to document a conversation between Inspector Gary Gitchell, one of the lead officers in the investigation, and criminalist Lisa Sakevicius of the Arkansas State Crime Laboratory, reflect that "Lisa says skin found in strings possibly cuticules [sic] -- best chances that this skin is not that of the boys." Appendix I. If it is "not that of the boys," it very likely belongs to the person who bound them.
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Appendix H. Similarly, as noted, other questioned hairs were found likely to share a common origin with the known head hairs of Jason Baldwin. Appendix G. (21)
The significance of these microscopic hair analyses is not their purported content -- that hairs found at the scene or on the bodies of the victims were or were not superficially "similar" to the known hairs of the accused -- but the fact that they compel the conclusion that determining the origin of those hairs is relevant to identifying the real killer, and that common-sense inference was apparent to the State during its investigation of this crime. Simply put, the fact that the boys were found naked and bound in a relatively remote location in the middle of the woods (as opposed to, e.g., fully clothed in a room inside a residence) gives special significance to any human hair present that does not belong to the victims themselves. Given that one would not expect to find human hair where these victims were killed, the odds are good that at least some of the many unidentified human hairs found at the scene or on the victims' bodies belong to the real killer(s). DNA testing of the foreign hairs recovered from the victims' body and clothing will constitute material exculpatory evidence if the results reveal that these hairs belong neither to the victims nor to the defendants. Mitochondrial DNA testing can be performed on the shafts of these hairs; if any of the hairs recovered in the course of the investigation of this triple homicide have roots, the roots could be the source for an STR test which would produce a DNA profile searchable in the state and federal databanks described above.
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(21) As the court is no doubt aware, microscopic hair examination and comparison, like that believed by the State to link Mr. Echols to the hairs found in this case, has been widely discredited since the time of Mr. Echols' trial. In fact, "no branch of forensic science has come under more withering attack or faced greater discrediting in the DNA age than [the] practice of microscopic hair comparison -- a subjective procedure criticized for lacking scientific standards and accountablility." Mark Wrolstad, Hair Analysis Flawed As A Forensic Science DNA Testing Reveals Dozens of Wrongful Verdicts Nationwide, DALLAS MORNING NEWS (March 31, 2002). More than a quarter of the confirmed wrongful convictions discovered through the use of DNA evidence were based in part on hair evidence that mistakenly implicated defendants whose hairs had the same microscopic characteristics as those recovered at crime scenes. Id.
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STR testing also can provide gender typing of certain samples, i.e., it can confirm the sex of the person from whom the biological material came. Such testing could provide exculpatory evidence in this case, where the victims and the convicted defendants are all male. If, for example, STR DNA testing of the human tissue recovered from the ligatures that bound the victims proves that the source of that tissue was a woman, that evidence would tend to exonerate Mr. Echols. (22)
In addition, there is no question that STR DNA testing can be performed on the DNA extract obtained from the John Mark Byers knife by Genetic Design, the laboratory to which it was submitted in 1994. Such testing will conclusively determine whether the blood on the knife belongs to John Mark Byers -- as he eventually claimed to police (after initially denying there could be blood on the knife at all, and then changing his story to say the blood was his own) -- or to his son Chris, one of the victims in this case, as the defense attempted to suggest at trial. DNA testing performed with the technology available in 1994 could not distinguish between the two; STR DNA testing now can. If the blood belongs to Chris, that fact is exculpatory as to Mr. Echols because John Mark Byers was a suspect in the murders and has no innocent explanation for why his son's blood could be on that knife.
One important way in which DNA testing results on the various items of evidence in this case could produce powerfully exculpatory evidence is through the "redundancy" of the results obtained. For example, if the results of DNA testing on the tissue from the ligatures which bound Michael Moore and those which bound Chris Byers produces profiles which match one another (and which exclude Mr. Echols, Mr. Baldwin, Mr. Misskelley, and the three victims), that will strongly (1)
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(22) We are not suggesting that a woman was solely responsible for this crime, but simply that a woman may have been an accomplice. The involvement of any woman, however, would be impossibly inconsistent with the State's theory of prosecution and thus exculpatory as to Mr. Echols.
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corroborate the inference that the DNA belongs to a single individual who tied up both Michael Moore and Chris Byers and (2) tend to disprove the State's theory of how the crime occurred. Similarly, if a DNA profile recovered from the hair found on the lower leg of one victim matches the DNA profile obtained from the tissue on the ligatures that bound another one of the victims, that would likewise provide powerful evidence that a single person (who was not Mr. Echols or his co-defendants) in all probability tied up both boys. If the DNA profiles from several of the foreign hairs (those found at the scene and on the victims' bodies) match one another and do not match the DNA profiles from Mr. Echols and his co-defendants, that will strongly suggest that all those hairs came from the same individual and that that individual was involved in the killings. STR DNA testing on, e.g., epithelial cells from the clothing found near the scene of the crime (Appendix A, item "BR1") could produce a profile which might match the DNA profile of a hair found on one of the victims' bodies, or the tissue recovered from the ligatures. Mitochondrial DNA testing on the hairs found on some of the clothing in item "BR1" (Criminalist Sakevicius reported to Inspector Gitchell that numerous hairs were present on that clothing) might produce a profile that matches an mtDNA result from one of the hairs found where the bodies were recovered, or on the bodies themselves. In sum, the persuasive power of the exculpatory inferences to be drawn from the DNA testing results will increase with any DNA results which not only exclude Mr. Echols, Mr. Baldwin, and Mr. Misskelley, but match one another. (23)
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(23) These examples are illustrative only, and we do not suggest that they exhaust the potentially exculpatory significance of DNA testing results which may be obtained if this Motion is granted. Any DNA testing result from any biological evidence recovered in this case which excludes Mr. Echols is significant and exculpatory; we are simply pointing out that the strength of the inferences which can be drawn from the testing results may increase with the number and variety of tests performed.
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The contemplated DNA test results, excluding Mr. Echols as the source of the biological material linked to the victims and the crime scene, would constitute new, noncumulative evidence materially relevant to Mr. Echols' assertion of actual innocence. See ARK. CODE ANN. § 16-112-202(c)(1)(B). The evidence is "new" because it was not available at the time of trial and "noncumulative" because no scientific proof concerning the origins of any of the biological evidence was presented by the defense at trial. The evidence would be "materially relevant" because, if "viewed in light of the evidence as a whole," it would establish by clear and convincing evidence that no reasonable fact-finder would find Mr. Echols guilty of the murders. See ARK. CODE ANN. § 16-112-201(a)(2). That conclusion is especially true because the State's proof at trial included NO uniquely identifying evidence linked to either Mr. Echols or Mr. Baldwin, (24) NO reliable corroborated confession by either Mr. Echols or Mr. Baldwin, (25) and NO other physical evidence tending to show that they committed the crime (as opposed to the fact that someone did). As is apparent from the direct appeal opinion of the Arkansas Supreme Court, see Echols, 326 Ark. at 937-941, 936 S.W.2d at 518-519, the proof of Mr. Echols' guilt is entirely circumstantial and is held together by the "glue" provided by the State's theory of motive -- that Mr. Echols was a "Satanist" and the killings bore the
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(24) Neither of the key pieces of physical evidence -- a knife found in a lake behind Mr. Baldwin's home, which was one of at least two weapons "consistent" with some of the wounds on the victims (Defense Exhibit E6, the knife belonging to John Mark Byers, was the other), and textile fibers found on the victims' clothing which were "microscopically similar" to fibers from clothing found in Mr. Echols' home -- was uniquely connected to either of the accused.
(25) The State presented the testimony of two children -- a fifteen-year-old girl and a twelve-year-old girl -- who claimed to have heard Mr. Echols say he killed the victims, in a public place with many other children and teenagers present. See T. 1812-1822. The State also presented the testimony of Michael Carson, a jailhouse snitch who claimed that Mr. Baldwin had confided in him and confessed his guilt for the murders -- and that Carson waited four months to tell anyone about it. For purposes of considering whether exculpatory hard scientific evidence resulting from newly available DNA technology would be "materially relevant" to Mr. Echols' claim of innocence, the overriding point is that there was no formal confession, recorded and/or reduced to writing and adopted by the maker after a waiver of constitutional rights, by either Mr. Echols or Mr.
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trappings of "satanic ritual."
5. The Testing Requested Employs a Scientific Method Generally Accepted Within the Relevant Scientific Community.
Short Tandem Repeat DNA testing is not only "generally accepted within the relevant scientific community," it is now the national standard for DNA testing. As the FBI noted in its report, The CODIS STR Project: Evaluation of Fluorescent Multiplex STR Systems, Tamyra R. Moretti, Ph.D. and Bruce Budowle, Ph.D., presented at the 50th Annual American Academy of Forensic Sciences Meeting, February 9-14, 1998 (hereinafter, "FBI Report"), "STR typing results can be routinely achieved from typical forensic specimens, including degraded and low-quantity DNA sample. The simultaneous amplification of several STR loci...expedites and simplifies sample analyses, reduces DNA consumption and the chance of contamination...." The FBI Report further concluded that "STR typing is robust, accurate, highly sensitive, and suitable for forensic application." Similarly, the National Research Council of the National Academy of Sciences has called the molecular technology of STR testing "thoroughly sound." National Research Council, The Evaluation of Forensic DNA Evidence (1996) at 23.
STR testing is the technique now used in Arkansas, and in every other state, to perform DNA testing for case work as well as profiles to be included in national, state, and local DNA databanks.
In addition, courts have found STR DNA testing admissible under legal standards reflecting its general acceptance in the relevant scientific community. See, e.g., Commonwealth v. Rosier, 685 N.3.2d 739, 743 (Mass. 1997) (STR DNA testing satisfies Daubert test of scientific validity); People v. Shreck, 22 P.3d 68, 80 (Colo. 2001) (same); State v. Butterfield, 27 P.3d 1133, 1143 (Utah 2001) (same); United States v. Trala, 162 F.Supp.2d 336 (D. Del. 2001) (same); State v. Jackson, 582
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Baldwin
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N.W.2d 317, 325 (Neb. 1998) (STR technique satisfies "general acceptance" test of Frye v. United States); People v. Brown, 110 Cal. Rptr. 750, 762 (Cal. App. 2001) (same); Lemour v. State, 802 So.2d 402, 405 (Fla. App. 2001) (same).
For all these reasons, there can be no serious dispute that STR DNA testing is "generally accepted within the relevant scientific community."
Similarly, mitochondrial DNA testing is now used by law enforcement agencies throughout the country. In fact, "because of its usefulness when limited biological material is available, and due to its unique pattern of maternal inheritance, mtDNA is playing a significant role in investigation and prosecution of active criminal cases, post-conviction exoneration, re-examination of cold cases, genealogical studies where maternal relatedness is in question, and missing persons investigations." See http://www.mitotyping.com (the web page of the country's leading mitochondrial DNA testing laboratory). Moreover, numerous courts around the country have concluded that mitochondrial DNA testing meets traditional legal standards for admissibility. See, e.g., Adams v. State, 794 So.2d 1049, 1060-1065 (Miss. App. 2001) (Southwich, P.J., concurring, writing for six members of the court) (mitochondrial DNA testing is generally accepted in the relevant scientific community and is capable of producing reliable and probative results); State v. Underwood, 134 N.C. App. 533, 543, 518 S.E.2d 231, 239-240 (N.C. App. 1999) (noting more than "four years of solid research, testing, and publications in peer-reviewed scientific journals on mtDNA analysis," finding mitochondrial DNA "sufficiently reliable to warrant its admissibility into evidence"); State v. Pappas, 256 Conn. 854, 878 n. 6, 776 A.2d 1091, 1107 n. 6 (Conn. 2001) ("All of the state appellate courts that have considered the methodology of mtDNA analysis in criminal trials thus far have concluded that it is scientifically valid and admissible," citing appellate decisions from North Carolina, South Carolina
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and Tennessee, as well as a trial court case from New York). In addition, we note that at least one Arkansas trial court has admitted mitochondrial DNA evidence in a capital murder prosecution. See Ware v. State, 348 Ark. 181, __, 75 S.W.3d 165, 170 (2002) (noting that at Ware's trial, FBI scientist John Stewart "testified that he conducted a mitochondrial DNA test on the bones recovered in this case").
In sum, both Short Tandem Repeat DNA testing and mitochondrial DNA testing "employ[]a scientific method generally accepted within the relevant scientific community," as required by ARK. CODE ANN. § 16-112-202(c)(1)(C). (26)
CONCLUSION
For all the foregoing reasons, petitioner DAMIEN WAYNE ECHOLS respectfully requests that this Court order the release of all biological evidence secured in relation to the trial which resulted in his three capital murder convictions and death sentences, to a reputable laboratory or laboratories for the purpose of having STR DNA testing and mtDNA testing performed. In the meantime, Mr. Echols requests that this Court issue an order directing the preservation of the evidence in question while this Motion for Forensic DNA Testing is pending. Mr. Echols also
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(26) In addition to these testing methods, where appropriate Mr. Echols may also request to have "y DNA" testing performed. This type of DNA testing, as its name implies, examines genetic markers on the Y chromosome. This is also a reliable technique which is generally accepted in the relevant scientific community. "The forensic utility of mtDNA and Y chromosome markers are well established. ...Y chromosome markers have also been useful in forensic DNA casework. Y chromosome specific markers may provide a useful screen on sexual assualt evidence to eliminate potential donors before conducting a differential extraction." David Carlson, et al., "Interlaboratory Studies on Multiplexed Mt DNA HV and Y Chromosome SNP Typing Using An Automated Liquid Bead Array System," available at http://www.promega.com/geneticidproc/ussymp12proc/abstracts/carlson.pdf
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requests a hearing to determine the location of evidence reported "lost" and to make the showings required under ARK. CODE ANN. § 16-112-202, and a hearing under ARK. CODE ANN. § 16-112-205.
It is the understanding of undersigned counsel that motions for forensic DNA testing have been filed by or on behalf of co-defendant Jason Baldwin and alleged co-participant Jessie Misskelley, which necessarily will relate to much if not all the same biological evidence described above and in the Appendices to this Motion for Forensic DNA testing. Mr. Echols joins these motions, and incorporates all arguments in those motions as if raised herein, in addition to the grounds asserted above. Accordingly, Mr. Echols respectfully requests that the Court consolidate all such motions for hearing and disposition, and that all parties be permitted to appear and take part in any and all proceedings in this Court concerning the proposed forensic DNA testing. Mr. Echols also moves the Court to grant such other relief as law and justice may require.
Respectfully submitted,
[signed] Edward A. Mallett
Edward A. Mallett
Mandell & Wright, LLP
712 Main St., Ste. 1600
Houston, Texas 77002-3297
(713) 228-1521
Al Schay
300 Spring St., Suite 515
Little Rock, Arkansas 72201
Barry C. Scheck
Peter Neufeld
Vanessa Potkin
Innocence Project
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Cardozo Law School
55 5th Avenue
New York, New York 10003
(212) 790-0368
Counsel for petitioner
DAMIEN WAYNE ECHOLS
CERTIFICATE OF SERVICE
I hereby certify that I have served a true copy of the foregoing Motion by certified mail, return receipt requested to:
