WESTERN DISTRICT
DAMIEN ECHOLS and CHARLES JASON BALDWIN PLAINTIFFS
vs. CR-93-450A & 450B
THE STATE OF ARKANSAS RESPONDENT
ORDER FOR DNA TESTING
THESE MATTERS are before this Court because Echols and Baldwin have separately filed Petitions and Motions for post-conviction evidence testing under Arkansas Code Section 16-112-201, et seq.
FINDINGS
The Court is informed and finds that counsel for Echols and Baldwin, and the State of Arkansas, represented by the Office of the Prosecuting Attorney for the Second Judicial Circuit, have agreed that DNA analysis of the below-described items of evidence will be conducted, and that the described parties have reached an agreement on protocols to accomplish this testing. The Court is further informed, and finds, that the parties have agreed that biological material found on the below-described evidence has the scientific
-1-
potential to produce new concumulative evidence which may be materially relevant to the defendants'/Petitioners' assertions of actual innocence for the purposes of this Court's finding of good cause for the agreed upon testing to proceed. The Court further is informed, and finds, that the State of Arkansas has reserved the right, based on reasonable notice to the Petitioners, to object to the relevance of test results obtained from testing of items enumerated and described in "List B" below as not being items which have the scientific potential to produce new noncumulative evidence materially relevant to the defendants'/Petitioners' assertions of actual innocence.
The Court is further informed, and finds, that Echols and Baldwin have agreed to pay for the testing to be conducted on the items of evidence enumerated and described below. Their agreement to make payment shall not be deemed a waiver of any rights that they may have to see reimbursement from the State for any or all of these testing related expenses pursuant to the provisions of Arkansas Code Sections 16-112-201, et seq. The Court is further informed, and finds, that the parties have agreed that Echols and Baldwin may initiate action either in this Court as a part of these actions, or by bringing separate legal actions either in this Court or in any other court the State of Arkansas, pursuant to Arkansas Code Sections 16-112-201, et seq., seeking reimbursement or payment of any costs of testing, or other costs for which the State of Arkansas is deemed and/or found to be liable, or responsible.
-2-
IT IS HEREBY ORDERED:
1. Based on the agreement of the parties, the Court orders that the following items of evidence are to be tested using technology and techniques applicable to DNA testing, and finds that any results pertinent to the items enumerated and described in "List A" below may produce relevant information within the meaning of Arkansas Code Sections 16-112-201, et seq.:
LIST A ITEMS
Evidence Item # Related #s Lab Case # Description
Michael Moore
FP2 93-05716 Left hand nail scrapings from victim
FP3 93-05716 Right hand nail scrapings from victim
FP5 93-05716 Two (2) Caucasian hairs removed from
Moore.
FP6 93-05716 One (1) package containing ligatures
from wrists to legs, right and left,
of victim Moore.
FP6 QH 93-05176 Hair from Moore ligature
FP6 93-05176 Skin/tissue/hairs from Moore ligatures
FP7 Qt-4 93-05716 Swabs taken from Moore
FP7 93-05716 Dyed hair from FP7 (Moore)
Steven Branch
FP3 93-05717 Nail scrapings from victim Branch
FP4 93-05717 Right hand nail scrapings, Branch
FP5 93-05717 Two (2) dark Caucasion hairs removed
from Branch.
FP6 93-05717 Ligatures from victim Branch
-3-
FP6 93-05717 Skin, tissue or hair removed from Branch
ligatures
FP6 K1-Q1-4 93-0717 Branch blood sample; swabs
Christopher Byers
FP3 93-05718 Hair found on Byers' body
FP4 93-05718 Left hand nail scrapings from Byers
FP5 93-05718 Right hand nail scrapings, Byers
FP6 QH 93-05718 Hair on lower body, Byers
FP8 93-05718 Ligatures from right and left
extremities, Byers
FP8 QH 93-05718 Hair from Byers' ligature
FP8 93-05718 Tissue, skin or hair, Byers' ligature
FP9 93-05718 Hair, perineum, Byers
Evidence Item # Related #s Lab Case # Description
FP10 QH 93-05718 Negroid hair removed from white sheet 1
FP10 Q1-3 93-05718 Swabs from Byers
Other Evidence
E3 93-05716 Hair from E3
E5 93-05716 Hair from Scout cap
E126 QH 93-05716 Hair from knife
E127 LS1-QH 93-05716 Hair from tree stump
E147 QH 93-05716 Hair from knife
Clothing Cuttings
E3 93-05716 Cuttings from blue pants
E7 93-05716 Cuttings from jeans
------------
1 The Court is informed, and finds, that the State has reserved the right to dispute the relevance of this item.
-4-
Knife
E178 93-05716 Kershaw folding knife
2. Based on the agreement of the parties, the Court reserved the parties the right to object to the relevance of results of testing on Item E-178, listed immediately above, a Kershaw folding knife. The objections reserved to all parties include the objection that there was a failure to maintain a chain of custody sufficient to establish that the knife was neither tampered with, nor altered in any material aspect.
3. Based on the agreement of the parties, the Court orders testing of the items enumerated and described in "List B" below using technologies and techniques pertinent to DNA testing. The Court is informed, and finds, that the State has reserved the right to dispute whether the items in "List B" below have the potential to produce new noncumulative evidence which may be materially relevant to the defendants'/Petitioners' assertions of actual innocence.
LIST B ITEMS
Evidence Item # Related #s Lab Case # Description
E1A 93-05716 Bag of clothing, area of homicide
E27 93-05716 Hair from knife
E28 93-05716 Hair from E28 butterfly knife
E134 QH 93-05716 Hair from knife
E17 93-05716 One (1) wooden stick, scene
FP10 QH 93-05716 Negroid hair removed from white sheet
4. Within thirty (30) days of the filing of this Order, the Prosecuting Attorney, Second Judicial Circuit, and/or his designees from the Arkansas State Crime Laboratory, specifically Laboratory Criminalist Kermit Channell, shall package and deliver to the agreed upon and below described independent laboratory all of the evidence, exhibits,
-5-
and biological material enumerated and described above. The evidence shall be delivered in packaged form using currently accepted laboratory packaging standards for the transmission by mail, or express delivery, of evidence acquired in a criminal case.
5. Within five (5) days of having transmitted the evidence, the Prosecuting Attorney and/or his designee Kermit Channell shall be responsible for ensuring that the evidence, accompanied by a copy of this Order, and a transmittal latter identifying for chain of custody purposes all of the evidence described and enumerated above, is transmitted to the laboratories of the Bode Technology Group in Springfield, Virginia ("Bode"). The Prosecuting Attorney, or his designee at the Arkansas Crime Laboratory, Kermit Channell, shall file with the Court, and shall serve upon below described counsel, an affidavit describing: all evidence packaged and transmitted; the manner of packaging and transmission, including the specification of any Airbill or shipment number; and a confirmation of the receipt of the specific evidence by the agreed upon laboratory.
6. The cost of shipping the evidence shall be paid for by Petitioners Echols and Baldwin. Petitioners shall transmit to the Prosecuting Attorney and/or his designee a Federal Express account number to which the cost of the overnight delivery service shall be billed. Petitioners shall also provide the address for Bode, to which the evidence is to be shipped. On the date of the shipment, the Prosecuting Attorney and/or his designee,
-6-
Kermit Channell shall promptly transmit either by telefax, or by mail, a legible copy of the Federal Express air bill to counsel for all parties, using the fax numbers below.
7. Upon receipt of the evidence, Bode shall inventory the evidence, using this Order as the basis for the inventory. Prior to beginning any testing, Bode shall examine the evidence to determine whether it is feasible to split the evidence so as to permit replicate testing by the State or by Petitioners. Bode shall promptly inform counsel for Petitioners of its conclusion with respect to this inquiry.
8. If Bode represents that there is insufficient evidence to split, counsel for Petitioner shall immediately notify Prosecuting Attorney Brent Davis of that conclusion, either verbally or in writing. If notice is oral, it shall be promptly confirmed in writing. If the parties cannot agree on how to proceed with the testing of items as to which too little biological material exists for splitting, the parties shall then notify the Court, in writing, either in a joint or in separate pleadings, that the matter must come before the Court for decision. Bode shall then proceed with the DNA analysis of the biological evidence.
9. The parties have agreed that if Bode determines that any of the hair evidence is not suitable for nuclear DNA testing, it shall forward such evidence to Mitotyping Technologies, L.L.C., in State College, PA, for mitochondrial DNA analysis.
-7-
10. Upon completion of their testing and analysis, each designated laboratory shall reduce its findings in a written report, which shall be provided to the Office of the Prosecuting Attorney, and to counsel for the Petitioner. Copies of these reports shall be filed with the Court.
Reservations of Rights
11. The parties have agreed, and the Court finds, that each of the parties in this case has reserved certain rights as set forth below. The Court recognizes these reservations without purporting to adjudicate or enforce those rights at this juncture in the proceedings.
12. The State of Arkansas, through the Office of the Prosecuting Attorney for the Second Judicial Circuit, reserves the right to object to the relevance of any results of testing on any items listed herein insofar as those results may pertain to the defendants'/Petitioners' claims for relief resulting from said tests. In addition, the State has further reserved objections to the results of any test conducted on the items enumerated and described in List B above for the reasons specified in paragraph 3 above, and to the results of any test conducted on List A, Item E-178 for the reasons specified in paragraph 2, above.
13. Petitioners Echols and Baldwin reserve the right to litigate the legal and scientific validity of any of the State's objections. Petitioner have also specifically
-8-
reserved the right to demonstrate the relevance of any biological materials, or test results, pertinent to items on List B and of any biological material, and test results, pertinent to List A, Item E-178. Echols and Baldwin also reserve the right to contest the validity of the State of Arkansas' objections to the testing of evidence items that are not the subject of this Order, but which the parties stipulate, and the Court finds, are the subject of Echols' and Baldwin's written requests, and the State's written objections. The parties have agreed, and the Court finds, that the parties have exchanged letters that evidence both the requests and objections just noted. Finally, Echols and Baldwin also reserve the right to seek reimbursement for the costs of testing pursuant to Arkansas Code Section 16-112-201, et seq., insofar as this Court, or any other court of the State of Arkansas, finds that testing was conducted on items, evidence, or biological material as provided for, covered by, or defined in, Arkansas Code Sections 16-112-201, et seq.
14. Upon written application by any of the parties to this action, this Court will adjudicate any claim of right specifically reserved under the agreement which has led to the issuance of this Order.
IT IS SO ORDERED.
David Burnett [signed]
CIRCUIT JUDGE DAVID BURNETT
DATE OF ENTRY: 5/26/04
-9-
APPROVED BY COUNSEL:
FOR PETITIONER DAMIEN ECHOLS:
Dated: May 19, 2004
Robert C. Owen [signed]
Owen & Rountree, L.L.P.
P.O. Box 40428
Austin, Texas 78704
(512) 804-2667 phone
(512 804-2685 fax
FOR PETITIONER CHARLES JASON BALDWIN:
J. Blake Hendrix
John T. Philipsborn
Dated: May 6, 2004
John T. Philipsborn [signed]
By John T. Philipsborn
Civic Center Building
507 Polk Street, Suite 250
San Francisco, CA 94102
(415) 771-3801 phone
(415) 771-3218 fax
FOR THE STATE OF ARKANSAS:
Dated: 5/20/04
Brent Davis [signed]
Brent Davis
Prosecuting Attorney
Second Judicial Circuit of Arkansas
P.O. Box 491
Jonesboro, Arkansas 72403
(870) 972-9505 phone
(870) 933-8560 fax
Criminal Bk 95 Pg 377-386
DATE: 06-02-2004
TIME: 04:25:49 PM
RECORDED IN
OFFICIAL RECORDS OF
CRAIGHEAD COUNTY, AR.
ANN HUDSON
CIRCUIT CLERK
-10-
