IN THE
CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
WESTERN DISTRICT
DAMIEN ECHOLS and CHARLES JASON BALDWIN, PLAINTIFFS,
vs. CR-93-450A & 450 B
THE STATE OF ARKANSAS, RESPONDENT.
______________________________/
JASON
DEPT: THE HON. DAVID BURNETT, CIRCUIT JUDGE
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1. INTRODUCTION
This pleading addresses items of evidence that the
permission to test prior to filing amended post-conviction petitions, including
fibers and animal hairs.
2. PROCEDURAL HISTORY AND
BACKGROUND
On March 9, 2001 Petitioner Baldwin filed a
“Motion to Preserve Evidence and for Access to Evidence for Testing.”
Thereafter, on November 20, 2002, Petitioner filed a “Petition for Writ
of Habeas Corpus and Supplement to Motion to Preserve Evidence and for Access
to Evidence for Testing Filed by Petitioner”.
The just-described November, 2002 petition followed Petitioner’s
conviction in 1994 on three counts of capital murder in violation of Arkansas
Code Annotated (hereafter A.C.A.) Section 5-10-101.
Petitioner’s convictions were affirmed on direct appeal in Echols and Baldwin v. State, 326
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In response to Petitioner’s March, 2001 motion for preservation of
evidence and the November 20, 2002 petition, and in anticipation of the filing
of a statutory petition for habeas corpus under A.C.A. 16-112-201 et seq., on December 18, 2002, the
Court issued an Order for Preservation of Evidence specific to Petitioner
Baldwin’s case. Subsequently, on June 2, 2004, this Court entered an
order for DNA testing. That order was amended on February 23, 2005 with the
issuance of the ‘First Amended Order for DNA Testing’. That First
Amended Order provided that a list of 35 numbered items should be transmitted
to a laboratory, Bode Technology, Inc., in Virginia for testing pursuant to the
times and conditions of the just-described Amended Order.
Since the issuance of the 2004 DNA testing orders, there have been subsequent
agreements between the parties for additional testing of items already released
to Bode Technology and in the care and custody of that laboratory.
Prior to reading an agreement on the 2004 DNA testing order, the parties agreed
to disagree on several aspects of Petitioner Baldwin’s Petition for Writ
of Habeas Corpus. Petitioner had alleged in that initial petition that
“SEM and other current technologies should be applied to all hairs,
fibers, and other trace evidence transmitted to the Alabama Department of
Forensic Services... [and described in forensic
scientist John Kilbourn’s letter and inventory dated January 5,
1994].” [November 20, 2002 petition at pp.16-19.]
In addition, Petitioner had sought access to test “[a]ll known and
unknown
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hair, clothing, and fiber evidence processed by the Arkansas State Crime
Laboratory, and transmitted to the Alabama Department of Forensic Sciences...[as described in Mr. Kilbourn’s letter dated
January 5, 1994].” Included in the items sought to be tested,
and specifically described at page 19 of the November 20, 2002 petition were:
black polyester fibers; blue polyester fibers; green polyester fibers; red
rayon fibers and cotton fibers, and the shirt and bathrobe from which they were
said to have possibly originated.
Criminalist Lisa Sakevicius, the Arkansas State Crime Laboratory (now deceased)
testified at Petitioner’s trial about finding a green polyester fiber on
a Cub Scout cap; the comparison between green fiber found on the cap and a
cotton polyester blend shirt that may have come in contact with some of Damien
Echol’s clothing (Reporter’s Transcript of trial, RT at 1468-1470).
Ms. Sakevicius also testified about the possible transfer of fiber from a red
robe found in the
Among the narrow group of evidence items that the State objected to releasing
during discussions of post-conviction evidence testing were the fiber evidence
and the clothing (for fiber comparison).
The defense submits that both fiber and animal hair evidence should be
released, and tested.
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Animal hair
The Baldwin defense believes that it is possible that the State may not object
to further examination of animal hair taken from the crime scene and
incorporated into hair slides prepared by the Arkansas Crime Lab. However,
since this specific topic was not discussed during recent exchanges between counsel, in an abundance of caution, it is brought up at
this juncture since the Court is setting a briefing and hearing schedule. As
has been made clear during the course of discussions of this case in the past
two years, the Petitioners have been reviewing the possibility that the
scientific evidence pertinent to cause of death and mechanism of injury given
by State Medical Examiner Frank Peretti, M.D., was scientifically inaccurate
and undermined, as well, by post-conviction DNA testing done to date.
Petitioner expects to file an Amended Petition for Writ of Habeas Corpus in
which he alleges that at least five qualified forensic pathologists, who have
been employed by various government entities in the United States, as well as
several qualified forensic odontologists, one of whom is the Chief Odontologist
for the State of Tennessee, and another a renowned odontologist with the Miami
Dade Medical Examiner’s Office, have reviewed the post-mortem examination
reports in this case; studied autopsy photographs; reviewed autopsy findings;
studied the area of the crime scene, and have concluded that the principal
scientific evidence theory under which the
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State prosecuted this case is not supported by the medical and forensic
pathology evidence. They provide a basis to dispute the account given by Jessie
Misskelley to Detective Gitchell (according to evidence at the Misskelley
trial) and other law enforcement officers. Generally the Misskelley statement
was that the three victims in this case were killed by Petitioner and his
co-defendant Damien Echols after having been assaulted sexually, stabbed and
beaten, and after one of them had been cut on his penis. These experts in
forensic sciences also undermine the State’s theory that these killings
were part of some satanic ritual (the theory specifically presented by the
State in the Echols and Baldwin trial). Petitioner also expects to tender
persuasive evidence concerning other aspects of the evidence against him.
DNA testing now establishes that there is no evidence that Petitioners were
involved in any sexual activity with any of the victims. Significantly, the
defense’s experts on forensic pathology, and medical issues, are
unanimously of the view that injuries described at trial as having been made by
one or more knives are not knife wounds, but rather artifacts of animal
predation, mostly post-mortem.
In reviewing the evidence in this case, Bode Technology informed the parties
that on the various hair slides prepared by the Arkansas State Crime Laboratory
in this case, and elsewhere in the evidence submitted
to it, there were a number of animal hairs. This scientific opinion was arrived
at after the defense (with the agreement of the State)
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approved a microscopic examination of hair evidence to differentiate between
human and animal hairs, in part because the Bode Technology, Inc. laboratories
did not, when it first started testing the samples in this case, conduct DNA
testing of animal tissue or animal hair as part of its normal forensic work.
Certain of the injuries observed on the victims were consistent with non-human
bite marks; the extrusion of tissue from the area of lips, eyelids, and wounds
on faces consistent with animal feeding behavior. Also, pathologists working
with the defense have identified a series of wounds that Dr. Peretti had opined
were knife wounds as wounds actually caused by animal claws.
The defense submits that under the facts as they have been developed in this
case, and given the State’s theory at trial, as well as given Petitioner
Baldwin’s claim of innocence, and satisfaction of the requirements under
A.C.A. 16-112-201 et seq.,
the various animal hairs impounded, and kept in laboratory settings, should be
released for further microscopic and DNA examination.
Fiber evidence
The main disagreement between the parties on fiber evidence is the
State’s
contention that there are no new technologies to apply to the fibers; that the
fiber evidence was correctly tested by the Arkansas Crime Laboratory, as well
as by a forensic scientist in Alabama, and that the reports pertinent to this
testing were made known to the
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defense at the time of the trial of this case. The
During post-conviction case review, Petitioner Baldwin has had the fiber evidence
at issue reviewed by Max Houck, former Physical Scientist in the Trace Evidence
Unit of the Federal Bureau of Investigation, who now runs the Forensic Science
Initiative (see attached resume). Mr. Houck’s 2004 letter about the case
and CV are appended here as Exhibits A and B. The State was served with the
Houck letter in 2004.
Mr. Houck reports that one of the difficulties here (which will likely be a
basis of one of the ineffectiveness claims in the upcoming amended Baldwin Rule
37 petition) is that the documentation produced by the State to evidence what
work was actually done on the fibers does not substantiate the opinions on
fiber evidence stated at trial, in part because the documentation was
incomplete and insufficient as a matter of accepted laboratory practice to
serve as the foundation for an expert’s opinion. Mr. Houck notes as well
that Ms. Sakevicius (see Houck letter at p.2) used other than an accepted
practice in conducting her analysis of the colors of the textiles involved. Since
it was a combination of color and weave patterns that provided the foundation
for Ms. Sakevicius’ testimony that the crime scene fibers were consistent
with fibers found in the Echols and Baldwin households, this error in the
analysis is significant.
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The State has been in possession of the Houck letter since 2004, and while
prosecutor Brent Davis was kind enough to verbally relay some verbal
disagreements of Arkansas State Crime Laboratory criminalists who were involved
in the investigation of this case (Kermit and Lisa Chanell), it is not clear
that the Chanells would qualify as proficient technical reviewers of expert
evidence on fiber analysis conducted by their own laboratory. Further, and more
significantly, it is not clear that there is any scientifically valid basis on
which to rebut Mr. Houck’s statements.
Since the trial of this case
systematized protocols for fiber analysis have been developed as have new
analysis techniques pertinent to fibers - further, existing techniques cannot
be said to have been reliably applied in this case, such as to have produced
scientifically accepted, valid and reliable results.
As noted above, the concern expressed by Mr. Houck in his review of the
pertinent evidence, based in part on his tenure with the FBI’s Trace
Analysis Section, is that the Arkansas State Crime Laboratory’s
fiber-related documentation in this case does not provide a sufficient basis
upon which to conclude that at the time of the analysis of the fibers in this
case, or at the time of trial, a qualified analyst used accepted methods and
protocols to obtain valid and reliable scientific evidence, and thus testified
on the basis of a reliable and valid scientific foundation on the issue of
fibers. This set of observations, however, does not seem to be the basis for
the State’s objections to the defense’s petition/motion/requests
for the release of fiber evidence for analysis. Rather,
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the objection offered by the State has been that the techniques for analysis of
fibers have not changed since the time of trial.
A number of publications explain the state of the science of fiber analysis at
or near the time of the trial of this case. See, for example, Laing D.K. et al., A Fibre Data Collection for Forensic
Scientists - Collection and Examination Methods, 32 Journal of
Forensic Science 364 (1967). 1
Since the time of this trial, the Scientific Working Group for Material
Analysis (SWGMAT), Fiber Subgroup, one of the several scientific working groups
assembled by the United States Department of Justice for the purpose of setting
forth accepted forensic science methodologies, laboratory practices, and the
like, has published several pertinent works. Included in the published
materials is the May, 1994 ‘Forensic Fiber Examiner Training
Program’ publication that sets out the various training proficiencies
that the SWGMAT Fiber Subgroup outlined for fiber analysts. In doing so, the
Fiber Subgroup has usefully divided up the various bodies of knowledge involved
in fiber analysis, including the methodologies used to classify fibers, and
fiber dyes (see Exhibit C, appended).
Notwithstanding the Arkansas State Crime Laboratory’s reported assumption
that forensic fiber analysis has not changed since 1994, it is clear that
certain areas of fiber analysis have indeed evolved. One of the world renowned experts
on fiber evidence,
1 Several
publications use the “English” spelling of the word fiber.
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Scotland Yard’s Ken Wiggins (whose work is relied upon by the Fiber
Subgroup, described above, in the United States) was the Chairman of the
European Fibres Group for several years. Wiggins has written a number of
influential publications including Forensic
Textile Fiber Examination Across the USA and Europe,
46 Journal of Forensic Sciences 1303 (November, 2001). The just described
article was described by another expert as follows:
.... the outcome of a comparative survey relating to textile fibre examination
and analysis in North America and across
Since many areas of the forensic sciences in the
2
Dr. Stefan Becker “Current Issues
and Trends in the Crime Laboratory Developments in the Last Ten Years - New
Challenges for the Trace Examiner”.
http//projects.nfstc.org/trace/docs.
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authoritative in the
A number of leading fiber examiners, including Wiggins, are
represented in Robertson and Grieve, eds., Forensic
Examination of Fibres (2d ed., 1999). As explained in that
generally accepted source, while it is true that the microscopic and other
techniques used by the Arkansas State Crime Laboratory in this case are
accepted by fiber examiners (if correctly applied), so are several other
techniques specific to the analysis of fibers, including color measurement
techniques, and techniques of interpretation of fiber evidence that were either
not available at the time of this case, or were not applied in Arkansas or
Alabama by the crime laboratories that were involved in the fiber analysis in
this case.
The defense is aware that the protocol in use in
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of extracted dye that allows for enhanced discrimination of trace fiber
evidence. See, generally, Stefan et al.,
Capillary Electrophoresis/Mass Spectrometry for the Forensic Analysis of Dyes
Extracted from Fibers, February, 2006, Proceedings of the American
The application of new technologies, and technologies not applied at the time
of this case, is of considerable importance to the analysis of this case, given
that the State presented fiber evidence that occupied a significant amount of
trial time (since it involved presentations during the State’s case in
chief, defense case in chief, and in the State’s rebuttal case). While
the net effect of the fiber evidence may have been to corroborate other
evidence, since the case against Petitioner was largely circumstantial, the
State’s testimony was significant in that it purported to demonstrate a
scientific basis for identifying Petitioner as having been at the scene. Though
Ms. Sakevicius did not purport to definitively identify the unknown fibers to
the known garments, she did state that they were similar in appearance and
color in such a way as to offer circumstantial evidence of identity.
Based on the information made available here, the Court should allow the
release of these fibers for advanced testing, particularly so that the dye
components can be
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analyzed in highly discriminating ways to enable reliable and valid testimony
to be provided.
Exhibits appended
A Houck 2004 letter
B Houck CV
C SWGMAT publication excerpt
CONCLUSION
For the reasons stated here, the Baldwin defense urges the Court to order the
release of both animal hair and fiber evidence for examination and analysis.
Dated: April 8, 2008
Respectfully Submitted by
PETITIONER CHARLES JASON BALDWIN
J. Blake Hendrix, Esq
John T. T. Philipsborn, Esq.
By: _____________________________
JOHN T. PHILIPSBORN
Attorneys for Charles Jason Baldwin
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PROOF OF SERVICE
I, Steven Gray, declare:
That I am over the age of 18, employed in the County of San Francisco,
California, and not a party to the within action; my business address is 507
Polk Street, Suite 350, San Francisco, California 94102.
On today’s date, I served the within document entitled:
JASON BALDWIN’S MEMORANDUM IN SUPPORT
OF PREVIOUSLY
MADE STATUTORY MOTION FOR RELEASE OF
FIBER EVIDENCE AND ANIMAL HAIRS
(x) By placing a true copy thereof enclosed in a sealed envelope with postage
thereon fully prepaid, in the United States Mail at San Francisco, California,
addressed as set forth below;
(x) By electronically transmitting a true copy thereof;
( ) By serving a true copy by facsimile to the person and/or office of the
person at the address set forth below
.....
Executed this 8th day of April, 2008, at
Signed:
_______________________
Steven Gray
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