PETITION
FOR WRIT OF HABEAS CORPUS AND SUPPLEMENT TO MOTION TO PRESERVE EVIDENCE AND FOR
ACCESS TO EVIDENCE FOR TESTING FILED BY PETITIONER
COMES NOW THE DEFENDANT AND PETITIONER, Jason Baldwin, through his attorneys
attorneys Blake Hendrix and John Philipsborn, petitioning for the issuance of a
Writ of Habeas Corpus, and supplementing his Motion to Preserve Evidence and
For Access to Evidence For Testing and renewing that motion, alleges and states
as follows:
1. This Petition and Supplemental Motion incorporates a petition for writ of
habeas corpus, and the reiteration of Baldwin’s March 9, 2001 Motion to
Preserve Evidence and For Access to Evidence For Testing (hereafter, “March 9,
2001 Motion”). In addition, Baldwin supplements his March 9, 2001 Motion by
bringing this Petition and Motion under Arkansas Code Annotated § 16-112-201, etseq., which
provides Baldwin with a statutory basis on which this Court can grant habeas
corpus relief, and
provide access to evidence for testing, while entering necessary orders to
preserve evidence.
2. This Petition and Supplement to the March 9, 2001 Motion, is based upon
Article II, Sections 8, 9, 13, and 29, of the Arkansas Constitution, the Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, and
all applicable statutory provisions including, but not limited to, Ark. Code
Ann. § 16-112-201 etseq.
3. Baldwin relies upon the Constitution of Arkansas, the United States
Constitution, and all currently available statutory provisions, including, but
not limited to, Ark. Code Ann. § 16-112-201 etseq., to assure
a full and fair review of the proceedings which resulted in his conviction, and
life sentences.
4. Baldwin is aware that his former co-defendant, Damien Echols, has recently
filed a “Motion for Forensic DNA Testing” partially based on Ark. Code Ann. §
16-112-201 etseq.,
seeking specific testing of biological material through Short Tandem Repeat
(“STR”) and/or Mitochondrial DNA testing. Baldwin had previously moved for
retesting of a number of different materials, including, but “not limited to
hairs, fibers, blood, semen and/or DNA samples.” (From Baldwin’s March 9, 2001
Motion at p. 2.) By and through this petition, and the related motion,
including the Supplement, Baldwin seeks testing, and review of evidence beyond
the “biological evidence” referred to in co-defendant, Damien Echols’ Motion
for Forensic DNA Testing. (See Echols Motion at p. 35.) To the extent and
degree necessary, under the current Arkansas statutory scheme, Baldwin is
prepared to join in motions and requests made by former co-defendant Damien
Echols (Case No. 93-450 and 450(A)), as well as in the petition and motions
brought by his former co-defendant Jessie Lloyd Misskelley, Jr. (Case No.
93-47, filed on September 27, 2002). Baldwin alleges, however, that his
petition and motion requests a wider range of relief than those filed either by
Echols or Misskelley.
I. THIS
PETITION IS BASED ON CONSTITUTIONAL AND STATUTORY GROUNDS.
5. Based on the United States Constitution, the Arkansas Constitution, and applicable
statutory authorities, including Ark. Code Ann. § 116-112-201 etseq., Baldwin is
entitled to the issuance of a Writ of Habeas Corpus and the grant of his Motion
to Preserve Evidence and For Access to Evidence For Testing, as well as this
Supplement.
(A) Under the
Fifth and Sixth Amendments of the United States and Arkansas Constitutions,
Baldwin is Entitled to Relief.
6. Baldwin is entitled to the issuance of a Writ of Habeas Corpus, and the
granting of his Motion to Preserve Evidence and For Access to Evidence For
Testing, as well as this Supplement to that motion, based on the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution, and Article
II, Sections 8, 9, 13, and 29, of the Arkansas Constitution.
(B) Under Applicable
Arkansas Statutes, Including Ark. Code Ann. § 116-112-201 et seq., Baldwin Is
Entitled To Relief.
7. Ark. Code Ann. § 16-112-102(a)(1)(A) and (B), etseq., provide
that prior to consideration for habeas relief, the petitioner, or moving party,
who satisfies the statutory criteria is entitled to acquire evidence and
materials related to his case, and to have them tested or retested. As
demonstrated below, Baldwin satisfies all of these statutory requirements. (See
Ark. Code Ann. § 16-112-201 etseq.)
8. Through the filing of this petition, Baldwin is entitled to relief based on
Ark. Code Ann. § 16-112-201(a). Baldwin
meets the requirements of Ark. Code Ann. § 16-112-201(a)(1) and (2) based on
the following: (a) his direct appeal has been concluded; (b) he has repeatedly
asserted his innocence of the offenses for which he was convicted; (c) the
scientific evidence not available at trial establishes his actual innocence;
and (d) the scientific predicate for the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable fact-finder would find him guilty of the
underlying offence. (Ark. Code Ann. §
16-112-201(a)(2).)
9. Under Ark. Code Ann. § 16-112-202(a)(1), Baldwin is entitled to “make a
motion for the performance of fingerprinting, forensic deoxyribonucleic acid
testing, or other tests which [have] become available through advances in
technology to demonstrate [his] actual innocence.” He is making such a motion
here.
10. The evidence to which Baldwin seeks access and retesting was secured in
relation to the trial which resulted in his conviction. Since the time of
trial, the State has had custody of this evidence. Thus, Baldwin meets the
requirement of Ark. Code Ann. § 16-112-202(a)(1)(A). In the alternative, or in
addition, chain of custody can be established. (Ark. Code
Ann. § 16-112-202(b)(2).)
11. The crime for which Baldwin was convicted occurred in 1994. In the eight
years since Baldwin’s trial, the courts, including the United States Supreme
Court, have recognized significant advancements in forensic science testing
techniques, tests and expertise. Certain of these scientific advancements and
testing techniques were not available at the time of the trial, and are
directly applicable to the evidence at issue. Thus, Baldwin satisfies the
requirement contained in Ark. Code Ann. § 16-112-202(a)(1)(B). In
the alternative, the testing sought here was
not available as evidence at the time of trial,
even if the technology was in existence, and could have been employed. (Ark.
Code Ann. § 16-112-202 (b) and (c).)
12. Baldwin meets all of the requirements of Ark. Code Ann. § 16-112-202(b) for
a prima facie case
for testing, or retesting, of evidence utilizing scientific advancements to
demonstrate Baldwin’s actual innocence. Baldwin is entitled to access to the
evidence described throughout this pleading because identity was an issue in
the trial which resulted in his conviction. In addition, the evidence at issue
has been subject to a chain of custody “to establish that it has not been
substituted, tampered with, replaced, or altered in any material aspect.” (See
Ark. Code Ann. § 16-112-202(b)(1) and (2).)
13. Baldwin is entitled to a court order to require testing, or re-testing, of
the evidence at issue under Ark. Code Ann. § 16-112-202(c)(1) which provides,
“The court shall order that the testing be
performed if: (A) A prima
facie case has been established under subsection
(b) of this section [see above]; (B) The testing has the scientific potential
to produce new noncumulative evidence materially relevant to the defendant’s
assertion of actual innocence; and (C) The testing requested employs a
scientific method generally accepted within the relevant scientific community.”
[Emphasis added.]
Baldwin satisfies all of these elements based on the following facts:
(a) Identity was an issue at his trial;
(b) He has repeatedly contended that he was
incorrectly identified as a perpetrator, and claims
his actual innocence;
(c) The evidence to be tested has been the subject of
a chain of custody sufficient to establish that it
has not been substituted, tampered with,
replaced, or altered in any material aspect;
(d) The testing has the scientific potential to produce
new, non-cumulative evidence materially relevant
to Baldwin’s claim of actual innocence;
(e) The testing requested employs scientific methods
generally accepted within the relevant scientific
community.
14. In sum, Baldwin satisfies all the requirements contained in the applicable
Arkansas statutes. Baldwin’s claims are authorized by Ark. Code Ann. §
16-112-201, and he meets all of the conditions specified in Ark. Code Ann. §
16-112-202.
15. Further allegations of fact supporting these allegations are set forth
below in the sections immediately following.
II. STATEMENT
OF FACTS
16. On March 18, 1994, Baldwin was convicted in Craighead County of three
counts of murder in Case No. CR-93-450A. Baldwin was sentenced to life imprisonment.
(Reporter’s Transcripts of Trial Proceedings, hereafter “RT” at 2761.) The
facts and procedural history of Baldwin’s case support his claims and
demonstrate his entitlement to relief.
(A) Pretrial
Facts and Procedural History.
17. Petitioner was arraigned on August 4, 1993. He was represented by appointed
attorneys Ford and Wadley when he entered not guilty pleas that day. (RT at
15.) That same day, biological and other materials were ordered taken from him,
including, but not limited to: handwriting samples; blood; saliva; pubic hair;
and fingerprints. (RT at 17.) Baldwin’s counsel indicated that the State had no
objections to the severance of co-defendant Jessie Misskelley, Jr., from
Baldwin. (RT at 31.) This Court granted the severance. (RT at 32.) At defense
request, the Court ordered that copies of all photographs be released by the
State Medical Examiner. (RT at 32.)
18. On September 27, 1993, Baldwin moved for severance from Echols stating that
his defense expected that its position would be antagonistic to that of
co-defendant Echols. (RT at 93-95.) Attorney Paul Ford, representing Baldwin,
stated that Baldwin’s defense was that he was innocent, and he was not present
at the scene of the crimes. (RT at 101-102.)
19. Baldwin’s counsel brought motions to discover tests and to inspect all the
physical evidence. Prior to the commencement of evidence, Baldwin’s counsel
specifically requested review of hair and fiber evidence. His trial counsel
represented that they were told that “...there will not be any DNA or
serological evidence ... against my client [Baldwin].” (RT at 142-143.) 1
20. During pretrial hearings in June 1993, State Crime Laboratory Criminalist
Lisa Sakevicius was called to establish the reasons for the State’s searches of
the Baldwin and Echols homes, and for its review of fiber evidence. She
testified that it was a long shot for there to be any matter of evidentiary
value available, particularly as far as fiber evidence was concerned, because
the victims’ clothing had been recovered from the water. She also testified
that she had recovered a variety of fibers during the searches, including one
from a toilet seat cover, and another from a red robe. (RT at 207.)
21. In connection with Baldwin’s claim of actual innocence, during pretrial
motions, attorney Paul Ford moved to question former co-defendant Jessie
Misskelley, and co-defendant Damien Echols, as to whether Baldwin was involved
with the crimes. (RT at 132.) The motion was denied.
22. Baldwin’s defense also moved to exclude three sticks found at the crime
scene on grounds that their admission was improper. The Court overruled this
objection, indicating that because such sticks could have been used to inflict
the injuries, evidence that they had been removed from the crime scene was
relevant. (RT at 401-403.) Similarly, Baldwin’s counsel moved to exclude
testimony concerning a knife found by an Arkansas State Police scuba diver in
the lake behind Baldwin’s residence on grounds that it was not relevant because
it could not be connected to the crimes or to Baldwin, but the Court eventually
admitted not only the knife, but also testimony concerning the manner in which
it was found. (RT at 407.)
23. Baldwin’s counsel moved to exclude testimony concerning the allegation or
theory that there was a sexual assault connected with the homicides. The Court
overruled Baldwin’s objections ruling that the testimony was relevant. (RT at
426-427.)
(B) Trial Facts
and Procedural History
24. The opening statements in Baldwin’s trial for the May 10, 1993 murders of
Chris Byers, Steve Branch, and Michael Moore began on February 28, 1994. In
those statements, the Baldwin defense made it clear that it disputed the
State’s allegation that Jason Baldwin was in any way involved in the homicides.
(RT at 701-701.)
25. The early part of the prosecution’s case consisted of testimony from the
parents of the victims who testified about their searches for the victims. Patrol
Officer Regina Meek, of the West Memphis Police Department, testified that she
searched the wooded area after the boys had been reported missing. Early in the
investigation, Detective Mike Allen of the West Memphis Police Department also
traveled with a colleague to the wooded area near the Blue Beacon Truck Stop. At
approximately 1:30 p.m. on March 6, 1993, he discovered the body of Michael
Moore. The remains of the two other boys were located downstream. (RT at
805-806.) He noted that part of the bank near the water was slick and devoid of
leaves. (RT at 807.) He thought he had seen a tennis shoe imprint near the
first body. (RT at 807.) He also reported participating in an investigation at
the Bojangles Restaurant, where an African American male had been reported
tracking blood into the restaurant the night before the boys were located. (RT
at 810.)
26. Detective Bryn Ridge testified about the processing of the scene, including
the taking of a number of photographs, and the acquisition of various pieces of
clothing and debris found near the bodies. (RT at 871-873.)
27. Detective Ridge described the manner in which clothing was impounded and
dried, prior to being bagged. (RT at 907-911.) Some items of evidence were
described as having been left to dry in offices at the police department. (RT
at 918.)
28. Various cuttings of clothing were taken from the pants, and shirts, found
at the crime scene. (RT at 957-962.) These cuttings were submitted for
laboratory processing. Attempts were made by criminalists and evidence technicians
to match known and unknown footprints. (RT at 963-973.)
29. Dr. Frank Peretti testified as to his opinions on the manner and causes of
death of the three victims, indicating that there could have been sexual abuse
of the young persons prior to their death. (RT at 1058, for example.) He opined
that some of the knives shown to him in court could have inflicted the wounds
that he viewed on all three bodies. He also indicated that he did not detect
any sperm consistent with sexual activity during the processing of the remains.
(RT at 1097-1098.)
30. Michael Carson, a juvenile, was held in the same juvenile detention
facility as Baldwin after the latter’s arrest. According to Carson, Baldwin
initially denied any involvement in the murders, and then later Baldwin ‘went
into detail about it’ indicating that he had dismembered the bodies and had
sucked blood out of one of the victims. (RT at 1168-1169.)
31. Detective Mike Allen testified that on November 17, 1993, a knife was
recovered by a state police dive team. This knife was eventually marked and
admitted as State’s Exhibit 77. (RT at 1202-1203.)
32. Detective Griffin of the West Memphis Police Department played a part in
the recovery of the children’s bicycles, which had been placed in the bayou at
the east end of a major water pipe. (RT at 236)
33. Detective Gary Gitchell was questioned about the acquisition of the knife
which belonged to John Mark Byers, and which was reported to have blood on it
that matched the victim Chris Byers. (RT at 1256-1268.) 2
34. Several witnesses reported having seen Damien Echols and his girlfriend,
Domini, walking in the vicinity of the Blue Beacon wearing black clothing in
early May – at least one witness put this date as the date of the young boys’
disappearance. (RT at 1281-1231.)
35. Arkansas State Laboratory Forensic Serologist, Kermit Channel, reviewed
some of the evidence: removing a possible tissue sample from each of the two
ligatures marked Q4 and Q39, and testing pants and other clothing for the
presence of stains, including items Q6 and Q10. While he did not get any clear
indication of the presence of biological material, he did find some areas that
might have contained biological stains. He sent these materials to Genetic
Design, which had the capacity to conduct DNA testing. (RT at 1327-1328.)
Though he had received some positive reactions with some of his presumptive
tests, he could not tell whether semen was present.
36. Mr. Channel also testified that a shirt found at Jessie Misskelley’s house
had blood on it that could have come from the victim Michael Moore, or from
Jessie Misskelley. (RT at 1331-1332.) 3
37. Michael De Guglielmo was the Director of Forensic Analysis at Genetic
Design. Several items of evidence were sent to Mr. De Guglielmo’s laboratory for
review, including ligatures Q-4 and Q-39, as well as cuttings from jeans
contained in Q-6 and Q-10. His laboratory also ran some tests on defense
Exhibit 6, a knife. The laboratory found nothing to connect Baldwin to the
homicides (RT at 1395). However, they did find some blood on Exhibit 6, as well
as what was characterized as “most likely” DNA that came from sperm cells in
the cuttings from the pants. (RT at 1390.) On redirect, De Guglielmo testified
that there had been no ‘match’ of anyone as a result of biological materials
testing. (RT at 1397.)
38. Several additional law enforcement officers were called in the prosecution
case, including Jerry Driver, Chief Juvenile Officer in Crittenden County who
stated that he had seen the three Defendants together, at some point, while he
was investigating a case. Lieutenant Sudbury testified that when he went to the
Damien Echols residence in June of 1993, and he had found Jason Baldwin there. (RT
at 1405-1409.) Officer Durham of the West Memphis Police Department described
an extensive statement that he took from Damien Echols on May 10, 1993. (RT at
1423.)
39. Lisa Sakevicius, Criminalist with the Arkansas State Crime Laboratory,
testified about: her examination of the ligatures; finding a green polyester
fiber on a Cub Scout cap (references are to Exhibit E-7 and E-5, trial exhibits
85 and 8); and the comparison between the green fiber found on the Cub Scout
hat and a cotton polyester blend shirt that may have come in contact with some
of Damien Echols’ clothing. (RT at 1468-1470.) She also testified about the
possible transfer of fiber from a red robe found in the Baldwin home to a pair
of pants pertinent to the case. (RT at 1470-1471.) Finally, she testified that
a single unidentified Negroid hair was found on a sheet used to recover the
Byers’ child. (RT at 1471-1472.)
40. Ralph Turbyfill, the Chief Latent Fingerprint Examiner for the Arkansas
Crime Laboratory reviewed a bike reflector and a small toy Sheriff’s star and
found no prints of any value. A similar fingerprinting effort was made on
certain sticks submitted to him, with similar results. (RT at 1507-1510.)
41. Several witnesses were called in an attempt to establish what sorts of
knives might have been possessed by Damien Echols. (RT at 1511-1524.) The jury
then heard lengthy testimony about statements given by Damien Echols on May 10,
1993 from Detective Bryn Ridge (beginning at RT 1550). Mr. Echols’ defense was
that he had an alibi, which included his involvement in a long telephone
conversation on the night of the crimes. (RT at 1587.)
42. The prosecution also called Dale Griffis, a ‘consultant’ who works with
‘non-traditional groups,’ who testified that in his review of the crime scene photographs,
the autopsy reports, and based on his knowledge of the case, he saw some
“possibility of occultism” involved. (RT at 1657.) Griffis had been a law
enforcement officer in Ohio. (RT at 1774, etseq.)
43. The prosecution also called witnesses to establish that they had
heard Mr. Echols in the presence of Jason Baldwin, stating that he had killed
the three boys or words to that effect. (RT at 1812-1831.)
The Defense Case
44. The defense began its case by presenting alibi witnesses, including Pam
Hutchinson, mother of Damien Echols. (RT at 1847, etseq.) Ms.
Hutchinson’s testimony covered a number of matters, including Echols’ prior
medical and psychiatric treatment, his interest in religion and other matters,
and his possession of a knife collection at one point in his life. Michelle
Echols also provided her brother with an alibi. Damien Echols took the witness
stand (RT at 1929) and denied any involvement in the killings. (RT at
1957-1958.) He was examined at length about his possession of various items
evidencing an interest in witchcraft, and other matters, as well as his
statement to law enforcement officers.
45. The defense also called Christopher Morgan, then a resident of Oceanside,
California, who admitted that at one point he had stated that he had killed the
three boys, but now denied having done so.
46. During further defense evidence, Detective Gary Gitchell, testified about
the manner in which certain evidence was acquired by the police, including the
Byers knife marked as Evidence Item E-6. John Mark Byers, stepfather of one of
the victims, took the stand, admitting the knife was his. While contending it
had been used in a variety of ways, he could not account for the presence of
human blood on it. (RT at 2195.) Mr. Byers also explained that on the day of
his stepson’s disappearance he had started looking for Chris Byers at about
6:15 or 6:30, had spoken with Officer Regina Meek at his house at about 8:10
p.m., and had continued searching into the night. (RT at 2200-2205.)
47. Bojangles’ Restaurant Manager Marty King stated that on May 5 or May 6 of
1993, a black man had been found seated in the women’s restroom, with blood
dripping off his left forearm, and that blood was left against the wall. There
was mud on his feet. An officer finally appeared and took a report. (RT at
2212.) Eventually detectives came by to take blood scrapings off the wall,
though they did not pick up a bloody roll of toilet paper. (RT at 2216.)
48. The defense also presented expert testimony in an attempt to rebut evidence
concerning the testimony from prosecution expert Dale Griffis. (RT at
2326-2301.) Similarly, evidence from trace evidence analyst Charles Lynch was
offered in an attempt to dispute some of the prosecution’s pertinent evidence.
49. In addition to further defense testimony about Jason Baldwin, who was at
school on the day of the killings, the Baldwin defense called Dr. Duke
Jennings, who, as a sitting member the State Crime Lab Board, presented rebuttal
to the testimony of Dr. Peretti, on the question of time of death.
The State’s
Rebuttal
50. Further testimony from Criminalist Lisa Sakevicius and Alabama Department
of Forensic Science Trace Evidence Section Supervisor John Kilbourn was
tendered by the State in rebuttal, particularly as to the fiber evidence. Mr.
Kilbourn confirmed that his examinations and opinions were based on microscopic
examination of the questioned fibers. (RT at 128-129.) 4
51. On March 17, 1994, there was discussion about a necklace taken from Damien
Echols at the time of his arrest and which was noted to have some red spots on
it. (RT at 2454.) This necklace had been sent to Genetic Design, which had
apparently found “two separate DNA sources on that particular necklace”
according to the offer of proof. (RT at 2455-2456.) There was discussion that
the sources appeared to be consistent with Mr. Echols, Mr. Baldwin, and victim
Stevie Branch. (RT at 2456-2457.) The State requested time to deal with this
matter, which, according to the Baldwin defense would be of no direct
evidentiary value as to the case against Baldwin. (RT at 2565-2566.)
52. In its closing statements, the State argued that Baldwin had been present
at the time of the killings. The State relied, in part, on fiber evidence which
it contended linked Baldwin to the crime. (RT at 2507-2508.) The prosecution
also asserted that Baldwin had made certain damaging admissions to Michael
Carson. (RT at 2542-2543.)
53. Baldwin’s closing argument was that not only was he in school on May 5,
1993, but also that no evidence linked him to the crime other than the belated
statements to law enforcement from juvenile facility informant Michael Carson. (RT
at 2586-2591.)
C. Post-Conviction
Facts and Procedural History.
54. Arkansas State Supreme Court Opinion
- Baldwin’s conviction was affirmed on direct appeal to the Arkansas State
Supreme Court. (See, Echols and Baldwin v. State,
326 Ark. 917; 936 S.W.2d 509 (1996).) A number of issues were considered, and
rejected, by the Arkansas State Supreme Court. Pertinent to this motion were
matters specific to physical evidence, including allegations that: evidence
from the forensic pathologist was insufficient to establish sexual attack, or
the use of a particular serrated knife; and, the prosecutor mis-characterized
the nature of the physical evidence by performing an experiment with a knife
during his closing argument. The Supreme Court also considered, but turned
aside, objections that this Court erroneously admitted evidence concerning
various sticks found on the ground which the prosecution argued might have been
used to inflict the types of injuries found on the victims. (936 S.W.2d at 524-547.)
55. After his conviction, Echols filed a petition under Rule 37 of the
Arkansas Rules of Criminal Procedure which was the subject of a formal response
by the State in February, 2002. Baldwin filed his abbreviated Rule 37 Petition
in pro se. As this
petition/motion is filed, Baldwin’s Rule 37 Petition has been held in abeyance,
and now that Baldwin has counsel, he intends to amend his Rule 37 Petition as
soon as possible.
56. After his conviction, and acting in pro se,
Baldwin filed a Motion to Preserve Evidence and For Access to Evidence For
Testing, which was responded to by the State in a filing dated February 2,
2002. Baldwin supplemented his Motion to Preserve Evidence and For Access to
Evidence For Testing by writing in a letter to the Court entitled, “Request for
Scheduling of Hearing on Preservation and Release of Evidence [and Related
Motion]” on September 9, 2001. In doing so, he informed the Court that he was
still trying to secure representation by counsel, and was hoping for the
Court’s prompt action on his Motion for Preservation and Release of Evidence.
III. GROUNDS
FOR RELIEF.
57. Baldwin incorporates his prior Motion for Preservation and Release of
Evidence filed with this Court, and moves for access to testing and evaluation
of the evidence or information at issue as permitted by Ark. Code Ann. § 16-112-201
etseq.
(A) SPECIFIC
TESTING WAS EITHER NOT AVAILABLE AT TIME OF TRIAL, OR NOT AVAILABLE AS EVIDENCE
CURRENTLY AVAILABLE, AND ACCEPTED TECHNOLOGY SHOULD BE EMPLOYED TO EXAMINE ALL
EVIDENCE.
58. Baldwin satisfies the Ark. Code Ann. § 16-112-202(a)(1)(A) requirement that
the requested testing be performed on evidence secured in relation to the trial
which resulted in his conviction. This is true of all the evidence sought to be
preserved and retested by this Petition for Writ of Habeas Corpus, by Baldwin’s
separate Motion to Preserve Evidence and For Access to Evidence For Testing,
and by this Supplement to that motion.
59. Baldwin satisfies the Ark. Code Ann. § 16-112-202(a)(1)(B) requirement that
the requested testing was not available at the time of trial or the testing was
not available as evidence at the time of trial.
(1)
HAIR AND FIBER EVIDENCE
60. During the presentation of trial evidence, and arguments, Baldwin was
alleged to have been linked to the crimes, in part, by fiber evidence. This
evidence was initially the subject of testimony from Arkansas State Criminalist
Lisa Sakevicius. Later, Alabama Crime Laboratory Trace Evidence Section
Supervisor John Kilbourn added his testimony and rebuttal to a defense fiber
examination. All
of the experts who testified (or conducted) hair and fiber evidence review at
trial used what would today be considered limited examination of the fiber
evidence, using some forms of light sources, and microscopic examination.
61. According to the reports made available by the State prior to the
commencement of trial, and notably the report prepared by John Kilbourn of the
Alabama Department of Forensic Sciences on January 5, 1994, numerous items of
physical evidence, including hairs, and many other samples, were under
examination. With respect specifically to fiber comparisons, Criminalist
Kilbourn noted the examinations of Criminalist Lisa Sakevicius. (Kilbourn
Report, p. 10, Exhibit A
to this pleading.) During the examination fibers were flattened, and then
reviewed by the use of a microscope. (Kilbourn Report, pp. 3-4, Exhibit A to
this pleading.)
62. The use of the Scanning Electron Microscope in fiber and hair analysis is
discussed at length in scholarly works including Giannelli & Imwinkelreid, ScientificEvidence 3d Ed.(
Lexis Law Publishing) 1999, with 2001 Supplement. A number of different tests,
not used in this case, are available to assess, and compare, fibers. Some of
these techniques were not commonly available at the time of the crimes charged.
These tests include: burning tests; solubility tests; chromatography tests (of
various kinds); fluorescent microscopy; Scanning Electron Microscopy (“SEM”);
Small Angle Light Scattering (“SALS”); photometry; polarized light microscopes,
etc. The use of scanning electron microscopy, discussed at some length in
Chapter 24 of Giannelli & Imwinkelreid (supra;
beginning at page 429) is also discussed in Deedrick, Douglas, “Hairs, Fibers,
Crime, And Evidence” 2 Forensic Science Communications, No. 3. (Part 2) Fiber
Evidence, July 2000 (U.S. Department of Justice). Mr. Deedrick is the former
Unit Chief of the Trace Evidence Unit of the Federal Bureau of Investigation.
63. The use of the Scanning Electron Microscope (also known as “SEM”), among
other things, has been the subject of extensive litigation. Many crime
laboratories now regularly use SEM technology to review gun shot residue, as
well as other types of evidence because SEM produces a three dimensional image.
SEM is described as a useful instrument for studying surface structure in order
to analyze foreign material, as well as the composition of items such as
fibers. (See, generally, People v. Marks,
54 Cal.App.3d 100; 126 Cal.Rptr. 350 (1975), discussing the use of scanning
electron microscopy to review bite mark evidence.)
64. Baldwin asserts that the trace evidence, including hair and fiber evidence,
should be reviewed through techniques in use and accepted by the Trace Evidence
Units of the F.B.I., and all major accredited crime laboratories, as evidenced
in currently accepted journals of the forensic sciences.
65. While the above technologies were known at the time of the trial, some had
not been the subject of computer-assisted comparison capabilities. The fact
that these technologies and techniques were known, and not employed in this
case, makes them ‘not available at the time of trial or the testing was not
available at time of trial.’ (Ark. Code Ann. §
16 112-202(a)(1)(B).)
66. A variety of courts have allowed application of microscopic examinations in
comparisons of hair. (See, for example, State
v. Faircloth, 99 N.C. App. 685, 691-93; 394 S.E.
2d 198, 202 (1990).) Under certain circumstances, the value of testimony
concerning hair is highly dependent on the kind of examination performed by the
examiner – leading one court to note that hair examination is an art, and that
an expert can exceed the scope of that art. (See, for example, McCarty
v. State, 765 P.2d 1215 (Okla. Crim. 1988).) A
variety of tests can distinguish various types of hairs, including SEM, and
Neutron Activation Analysis (“NAA”). Here, neither SEM nor NAA were used, and
it is unclear whether basic scientific techniques involving careful measurement
of the hair samples were used, though there is evidence that microscopic
examination occurred. (See, in general, for more modern techniques than used in
this case Giannelli & Imwinkelreid, supra,
Chapters 24-25 (Trace Evidence and Instrumental Analysis).)
67. SEM and other current technologies should be applied to all hairs, fibers,
and other trace evidence transmitted to the Alabama Department of Forensic
Sciences, and described in Forensic Scientist John Kilbourn’s letter and
inventory dated January 5, 1994, are appended here as Exhibit A. 5
68. All known and unknown hair, clothing, and fiber evidence processed by the
Arkansas State Crime Laboratory, and transmitted to the Alabama Department of
Forensic Sciences, described in Mr. Kilbourn’s letter dated January 5, 1994,
including, but not limited to, Items K-1 through K-111, Q-1 through Q-36.
69. Included in the above-described list of fibers are: black polyester fibers,
blue polyester fibers, green polyester fibers, red rayon fibers and cotton
fibers found in Items Q-11 through Q-34, as described in Mr. Kilbourn’s January
14, 1994 letter.
70. In addition, these techniques should be applied to all evidence which was
reviewed by the Arkansas State Crime Laboratory Criminalist Lisa Sakevicius
(See Exhibit B).
(2)
FINGERPRINTS
71. Attempts were made to fingerprint a number of items including: E-3, a toy
sheriff’s star; a broken bicycle spoke reflector; a wooden stick marked E-17; a
box of mud containing possible fingerprints marked E-21; E-23 a knife and a
scabbard; E-24 an ice ax with a blue handle; E-169 a survival knife.
72. Fingerprint evidence has been accepted by the Arkansas courts for many
years. It has been accepted in the Eighth Circuit as well. (See, for example, U.S.
v. Dorsey, 852 F.2d 1068 (8th Cir. 1988). See
also, generally, U.S. v. Howard,
260 F.3d 597 (7th Cir. 2001).) As is alleged in Section 3, below (and
incorporated here by reference), today, specific photographic enhancement
techniques are available to apply to the examination of fingerprints. The use
of technology to enhance photographs of finger and palm prints is technology
that has been accepted by courts. (See, generally, State
v. Hayden, 90 Wash. App. 100; 950 P.2d 1024,
1025 (1998).)
73. There have been concerns about the way fingerprint evidence has
historically been reviewed, as well as concerns about the relative scientific
basis of certain fingerprint identification and comparison systems. (See, for
example, U.S. v. LLera. Plaza,
188 F.Supp. 2d 549 (E. D. Penn., 2002).)
74. Ongoing investigation by counsel has revealed that some major law
enforcement agencies, and related laboratories, have developed extensive
databases which now allow relatively quick comparison of known and unknown
fingerprints. Also, certain digital photography techniques allow the comparison
of difficult to read fingerprints. A number of pattern analysis programs have
been created which allow use of biometric databases, many of which are in
operation in crime laboratories today.
75. For these reasons, the Court should grant Baldwin’s request for analysis of
fingerprint or potential fingerprint evidence using current technology.
(3)
CRIME SCENE PHOTOGRAPHS
76. The paragraphs set forth immediately above note that there are current
photographic techniques applicable to the evidence in this case. In addition to
the above, Baldwin notes that there have been measurable advances in the
technology of photography as it has been applied to crime scenes, crime scene
analysis, and to the review of crime scene evidence. So long as the technology
is established to be reliable, the use of image enhancement technology,
including digital enhancement, is properly applied in criminal cases. (See,
generally, Nooner v. State,
907 S.W.2d 677 (Ark., 1995), cert. denied
517 U.S. 1143 (1996).) Computer technology has been used to great advantage in
the restoration or improvement of conventional photographic images. (See
Giannelli & Imwinkelreid, supra,
2001 Supplement, Chapter 25 “Instrumental Analysis” – section specific to the
use of photography.)
77. In the present case, numerous photographs were taken by investigators not
only at the crime scene, but also by criminalists in laboratory settings. There
is nothing in the current record that evidences any use of digital enhancement,
or computer enhancing technology, as recognized by the current literature, and
pertinent decisions. This technology can be applied to great advantage in this
case, in part, to deal with the question of whether the State correctly
presented this as a case in which the killing took place near the scene in
which the victims’ bodies were found, and involved a thorough cleaning of the
scene. The reprocessing of the photographic images will also allow the
assessment of whether there is any evidence linking Baldwin with the crime
scene – as the State obtained its conviction on the basis that Baldwin was
present, an active participant, and aider and abetter.
(4) DNA
78. Items Baldwin seeks to have tested and assessed using either: multiple
marker PCR (polymerase chain reaction) testing; short tandem repeat testing
(STR); or mitochondrial DNA testing, on the items listed in paragraphs 78 to
89, including:
Q6 (2S) cuttings from blue jeans: identified and
questioned stain;
Q10 (1S) cuttings from blue jeans: questioned stain;
Q37 possible tissue recovered from knife;
Q4 possible tissue recovered from ligature from
Christopher Byers;
Q39 possible tissue recovered from ligature from
James Michael Moore;
Q52(1b) human blood recovered from shirt;
Q52(2b) human blood recovered from shirt; 6
79. All samples obtained from victims Christopher Byers; James Michael Moore;
Steven Branch.
80. All samples obtained from Damien Wayne Echols, Richard G. Cummings, Jason
Baldwin, Steve Menard, John Mark Byers, Jessie Misskelley, Jr, and all other
suspects or potential suspects whose hair, blood or other biological samples
were taken during the investigation.
81. All clothing and personal items booked by the West Memphis Police
Department with the following evidence series designations: Q, FP, BR and E
which include victims’ clothing, clothing, samples and personal property
belonging to possible or actual suspects as listed in West Memphis Police
Department or Arkansas State Crime Laboratory reports. The above items include,
but are not limited to:
E-1 bag of clothing;
E-2 shirt;
E-3 blue pants, including Q10 and blue Boy Scout
shirt;
E-3 packaged with E-169;
E-4 white tennis shoe;
E-5 Cub Scout hat;
E-6 black tennis shoes;
E-7 blue denim jeans and blue wallet;
E-8 black tennis shoes;
E-9 striped shirt;
E-10 red and white underpants;
E-11 white tennis shoes;
E-12 black tennis shoes;
E-13 blue denim jeans;
E-14 black athletic shoe;
E-23 knife from Susan Baldwin;
E-51 shoes from Steve Menard;
E-57 knife from apartment 67, Mayfair Apartments;
E-58 knife from Michael Hellee;
E-59 knife from Waller Street;
E-79 blue shirt;
E-91 black boots;
E-119 robe with red-brown stains;
E-129 boots reportedly from Damien Echols;
E-134 knife from principal Hilth;
E-169 knife;
E-176 folding knife;
E-179 knife;
Manila envelopes labeled E-53, 56, 58, 63, 60, 54;
Manila envelopes labeled E-55, 57, 59, 61, 62;
82. All ligatures booked into evidence in any series of evidence, including,
but not limited to evidence series E, Q, FP, BR and K.
83. All fingernail scrapings taken from the victims, and booked into evidence,
and currently retained by the West Memphis Police Department, Arkansas Crime
Lab, or any other authorized custodian of records, documents and evidence.
84. All hairs booked into evidence which came: from the crime scene; any item
of evidence booked by the West Memphis Police Department, the Arkansas State
Crime Laboratory, or any other agency working on the investigation of this
case; any suspect as listed by the West Memphis Police Department in reports
pertinent to this case.
85. All knives, including, but not limited to, folding and serrated knives
booked into evidence in any
series of booked evidence, including, but not limited to the: E, Q, K, BR, FP
series of exhibits, including E1-172.
86. All hair and body fluid evidence recovered from any listed suspect,
including, but not limited to, hair and biological material impounded in the:
E, K, Q, BR, FP series of evidence. 7
87. The contents of any bag, paper, container or sheet used to transport or impound
any evidence in this case, including, but not limited to: the bodies of the
victims; suspect clothing; victims’ clothing; knives; sticks; shoes; boots;
branches or wooden objects.
88. All tissue or suspected human tissue impounded in the following series of
evidence: E, Q, K, BR, FP.
89. Exhibits appended to this pleading, consisting of transmittal letters, and
letter-reports from the Arkansas State Crime Laboratory to Genetic Design,
Inc., and from Genetic Design to the Crime Laboratory, demonstrate that some
basic DNA testing available in 1993 was performed on a total of 13 items (see,
Exhibit B Forensic Case Report from Genetic Design dated July 13, 1993,
appended under the cover sheet “DNA Test Documentation”). The State of Arkansas
has recognized that persons can be falsely convicted of crimes. To remedy
erroneous convictions or major errors in adjudication of identification, the
State of Arkansas allows post-conviction testing of specific types of evidence.
(Arkansas Code Ann. § 16-112-202; see also, “Convicted By Juries, Exonerated By
Science: Case Studies In The Use Of DNA Evidence To Establish Innocence After
Trial,” Connors, etal., National
Institute of Justice, June 1996.)
90. The methods used by laboratories and forensic scientists for “DNA testing”
in forensic sciences has changed vastly since 1993. For example, the Arkansas
Crime Laboratory received technology permitting the use of Polymerase Chain
Reaction (“PCR”) testing which became available in 1995, and was used initially
in 1996. Today, the Laboratory is acquiring the technology and expertise to
conduct Mitochondrial DNA testing. Mitochondrial DNA is passed from mother to
child, and when located and identified in a given sample, allows very
‘specific’ identification of biological material.
91. Kermit Channel, who is employed at the Arkansas Crime Laboratory and who
worked on this case at the time of trial, has recently conferred with counsel
for the State, and has suggested some ‘outside’ laboratories for DNA testing of
evidence in this case. 8
92. A variety of techniques, including DNA length variations and related
examination technologies, have been developed within the last few years which
allow scientists far greater ability to: amplify the DNA from a given known or
unknown sample; produce specified repeats of sequences of given DNA (“STR”);
perform various types of electrophoresis, etc. In fact, many laboratories now
have advanced technology which allow for a far more detailed examination of a
given sample than the simple “DQ Alpha” techniques, which were applied in this
case. Such is the evolution and development of pertinent forensic sciences that
various manufacturers of scientific products have developed complex “packages”
of technology that permit the application of new DNA technologies to a given
item. These technologies are known by names such as: the Promega GenePrint
Silver Stain STR Kit, the AMP F1STR Profiler Plus as analyzed by the ABI Prism
310 Genetic Analyzer, etc. 9
93. Several states have considered, and decided to admit, testing based on
either multiple loci within DNA or based on the application of new technology. (See,
for example, State v. Jackson,
582 N.W. Rptr.2d 317 (Nebraska, 1998) [dealing with STR testing]; State
v. Butterfield, 23 P.Rptr.3d 1133 (Utah, 2001)
[dealing with Profiler Plus technology]; People
v. Hill, 89 Cal.App.4th 48 (2001) [Profiler
Plus].) Indeed, under specific circumstances, it has been held an abuse of
discretion for a federal court reviewing post-conviction claims to deny a
habeas petitioner’s motion to conduct DNA testing where the appropriate testing
was unavailable at trial. (See, for example, Toney
v. Gammon, 79 F.3d 693, 700 (8th Cir. 1996).) Case
law encourages the use of current DNA technology, where possible. (See, for
example, in Cherrix v. Braxton,
131 F.Supp.2d 756 (E.D.Va., 2000), where it was deemed that 1994 DNA testing
methods were technologically inferior to testing methods current in 1999-2000.)
94. In sum, the combination of case law, scientific literature, and DNA
specific scholarship (and research) makes it clear that there are procedures,
techniques and methods available today to analyze biological material that go
far beyond the DQ Alpha techniques used in this case in 1993.
B. BALDWIN
SATISFIES THE REQUIREMENTS FOR A PRIMA FACIE CASE FOR ACCESS TO/AND
REEXAMINATION OF EVIDENCE BASED ON ARK. CODE
ANN. §16-112-202(b).
(1)
IDENTITY WAS AN ISSUE
95. Baldwin satisfies the “identity was an issue in the trial” element
contained in Ark. Code Ann. § 16-112-202(b)(1) because identity was an issue in
the trial.
96. Baldwin has consistently contended that he was incorrectly identified as a
perpetrator, and claims actual innocence.
(2)
CHAIN OF CUSTODY ESTABLISHED
97. Baldwin satisfies the chain of custody element for
a prima facie case
under Ark. Code Ann. § 16-112-202(b)(2) which requires 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.”
98. The State has had custody of the evidence in this case and has had the duty
to preserve such evidence. On two occasions, counsel for Misskelley looked at
the evidence and made efforts to ensure that it was properly bagged. The State
has been on notice since Misskelley’s November, 2000 Motion to Preserve
Evidence, that Misskelley sought preservation of this evidence. Baldwin filed
his Motion for Preservation of Evidence soon after Misskelley.
C. BALDWIN IS
ENTITLED TO A COURT ORDER FOR TESTING OF EVIDENCE BASED ON ARK. CODE
ANN. § 16-112-202(c)(1).
99. Baldwin has established a prima
facie case for retesting (see above) as required
in Ark. Code Ann. § 16-112-202(b)(1) and (2), and thus, has satisfied Ark. Code
Ann. § 16-112-202(c)(1)(A).
(1)
NON-CUMULATIVE AND MATERIAL EVIDENCE WILL RESULT
100. Baldwin satisfies Ark. Code Ann. §
16-112-202(c)(1)(B) which requires “The testing has the scientific potential to
produce new noncumulative evidence materially relevant to the defendant’s
assertion of actual innocence...”
101. The testing and examinations sought here are intended to apply current,
updated, testing and examination methods to a variety of evidence which was
either: not tested or examined at the time of trial; tested and examined
through the use of what would today be considered outdated or only partially
accepted techniques, and presented to the jury in such form; or examined and
partially tested according to present standards, and never presented to the
jury. As a result, he is seeking new evidence, as he is applying either new,
but accepted, techniques to previously tested evidence, or similar techniques
to evidence that was not tested. Moreover, where evidence presented to jurors
did not comport with scientific standards, he seeks to ensure the availability
of accepted, and appropriate science in the analysis of the evidence in this
case.
102. Baldwin seeks relief to assure that inconclusive tests or examination
results are revisited; insufficient or incomplete tests or examinations are
sufficient and complete; and untested or unexamined evidence is examined.
103. As a result, Baldwin seeks non-cumulative evidence through this
application, and submits that the use of currently accepted techniques of
examination as alleged and described above will produce relevant, material and
non-cumulative evidence.
(3)
TESTING METHODS ARE GENERALLY ACCEPTED
104. Baldwin satisfies the Ark. Code Ann.§ 16-112-202(c)(1)(C) requirement that
“The requested testing employs a scientific method generally accepted within
the relevant scientific community.”
105. Baldwin has alleged in detail, above, the basis for his requests and
motions. He had set forth justifications for the testing and examinations that
he seeks through references to the relevant case law and scientific literature.
He has specifically made reference to cases specific to technologies or
techniques at issue, and has referred the Court and the parties to recent, and
relevant scientific literature. He has made reference to works by scientists
who are acknowledged to be experts in their fields.
IV. EXHIBITS
SUBMITTED
106. Baldwin incorporates by reference all Exhibits submitted by Damien Echols
and Jessie Misskelley, Jr. in their motions, petitions, and other submissions
to the Court. He appends here, and incorporates by reference as fully included
in this Petition and Supplement to his Motion the following appended Exhibits:
• Exhibit A–January 5, 994 Letter Report From
Alabama Department of Forensic Sciences, John
Kilbourn, Examiner;
• Exhibit B–Evidence Submission Forms, and
January 1994 Lisa Sakevicius Trace Evidence
Report;
• Exhibit C–May and July, 1993 State Laboratory
Transmittal, and Genetic Design report with
August, 2002 State Laboratory Explanation.
V. CONCLUSION
107. Baldwin has had a motion for preservation and re-examination of physical
evidence pertinent to his case on file for more than a year. He seeks here what
he is entitled to under the laws of the State of Arkansas, and of the United
States. Baldwin moves this Court for relief as specified above.
RESPECTFULLY SUBMITTED,
BLAKE HENDRIX, ESQ.
J.T. PHILIPSBORN, ESQ.
_______________________
By: BLAKE HENDRIX
Attorneys for Charles Jason Baldwin
----------
Footnotes:
1
As noted below, evidence implicating Baldwin was in fact introduced, but this
evidence was circumstantial. No specific serological or DNA evidence actually
connected Baldwin to these crimes.
2
Testimony on this point was that both John Mark Byers and Chris Byers had the
same D.Q. Alpha markers. (RT at 1268-1269.)
3
This evidence is discussed here because of its importance to the motion at
issue. Several matters were raised by the parties during Mr. Channel’s
testimony. (RT at 1332-1338.) The defense urged the Court to allow presentation
of testimony regarding testing of potential alternate suspects. Various actual
and/or potential suspects had given statements, and physical evidence,
including clothing and knives, to investigators during the investigation. Some
contained what might have been blood. This evidence was the subject of
discussion, and is pertinent here in so far as there is a claim of actual
innocence proffered by Baldwin that requires the retesting of material,
clothing, and any other evidence seized from potential alternate suspects. The
pertinent testimony is at RT 1348-1378.
4
As will be noted further in this Supplemental Motion, this point is important,
as Mr. Kilbourn and Arkansas State Laboratory Criminalist Lisa Sakevicius had
what, today, would be considered limited technology to conduct their
assessments and examinations.
5
See Footnote 1, above regarding the numbering of various items.
6
These items were sent for DNA testing with the DQ Alpha system in 1993/1994. (
See Exhibit C–letters regarding DNA testing)
7 It
is evident from a review of materials and paperwork connected with this case that
several different evidence identification and evidence booking systems were
used during the investigation and prosecution of this case. For example, the
West Memphis Police Department has assigned a certain identification system to
this case which includes numbering and description of items of evidence on
numerous evidence bags that are being retained in the custody of the West
Memphis Police Department. Many of the evidence bags bear the West Memphis
Police Evidence item description, a laboratory item number and description, and
may bear other identifying information as well. The Arkansas State Crime
Laboratory appears to have used a system which consisted of labeling items by
specific item number, together with an item description. For example, a June 1,
1993 letter from serologist Kermit Channell of the Arkansas State Crime
Laboratory identifies Item K-33 as a ‘blood sample from Steve Menard.’ Other
documents, however, seem to duplicate and confuse this system. A letter dated
January 5, 1994 from the Alabama Department of Forensic Sciences also has
assigned both Q and K numbers to many different items submitted to that
laboratory. At page 9 of the Alabama Department of Forensic Sciences’ letter
Item K-107 is described as, “one paper bag labeled ‘E-105 white tennis shoes
from Jason’s 93-05716 Q74 Q75.’” Items identified in this motion by number can
be located on specific law enforcement agency inventories, if necessary.
8
This information was made known to counsel through copies of a letter, and
through discussions with Mr. Davis.
9
Discussions of various new technologies can be found not only in the pertinent
scientific literature, but also in the record of proceedings in numerous cases.
See, for example, Commonwealth v. Rosier,
425 Mass. 807; 685 N.E. Rptr.2d 739 (1997). See also, Imwinkelried and Kaye,
“DNA Typing: Emerging And Neglected Issues,” 76 Washington Law Review 413
(2001); Perker-Elmer-Applied Biosystems: Human Identity Home Page; Validation
of STR Systems Reference Manual (March, 2001), Promega Corporation; Quality
Assurance Audit Guidelines For Forensic DNA And Convicted Offender DNA
Databasing Laboratories, Director of the FBI,
Forensic Science Communications, Vol. 3, No. 1 (January, 2001). A number of
scientists testified about these emerging techniques at length in People
v. Parnell, et al., California Superior Court,
County of Sacramento, 98 F.008869 etseq. [A series
of cases consolidated for hearing on the acceptance of current technology].
