APPEAL FROM THE CIRCUIT COURT

INITIAL PETITION

__________________________________________________________________

TERRI L. BACKHUS Florida Bar No. 0946427

Backhus & Izakowitz, PA.

P.O. Box 3294

303 S. Westland Avenue

Tampa, FL 33601-3294

(813) 259-4424

Attorney for Mr. Bogle

JURISDICTIONAL STATEMENT

In Trepal v. State, 754 So.2d 702, 707 (Fla. 2000), this Court established the parameters of interlocutory appeals in collateral proceedings noting that it accepted jurisdiction under Article V, Sec. 3 (b)(1), Fla. Const. This Court further held that:

... to obtain relief an appellant must establish that the order compelling discovery does not conform to the essential requirements of law and may cause irreparable injury for which appellate review would be inadequate.

Trepal, 754 So. 2d at 707. Mr. Bogle alleges both in this petition for extraordinary relief, and requests that this Court accept jurisdiction over this matter under Article V, Sec. 3 (b)(1) of the Florida Constitution.

ISSUE PRESENTED

In light of evidence disclosed last year by the State which impeached the testimony of the State’s expert witnesses from the FBI Crime Lab and which served as a basis for Mr. Bogle’s Rule 3.850 attack upon his conviction, the State orally sought to compel blood samples from Mr. Bogle in order to conduct DNA analysis in the hopes of finding new evidence of guilt, thereby bolstering its shaken confidence in the verdict. Mr. Bogle opposed the discovery request. As the State concedes, Mr. Bogle argued "that by requesting retesting the State is conceding error and should be required to show cause for retesting." Response in Opposition to Defendant’s Motion to Stay Proceedings and State’s Motion to Dismiss Appeal, at 4. As the State acknowledges, the trial court overruled Mr. Bogle’s argument. Thus, the issue presented is whether the State was required to show cause in order to compel Mr. Bogle to provide a blood sample so that it could engage in post-conviction discovery. And if so, has good cause been shown.

FACTS UPON WHICH PETITIONER RELIES

The Circuit Court for the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, entered the judgment of conviction and sentence of death at issue in this case. On direct appeal, this Court affirmed the conviction and sentence. Bogle v. State, 655 So. 2d 1103 (Fla. 1995). Mr. Bogle’s petitioned for certiorari review was denied. Bogle v. Florida, 116 S. Ct. 483 (1995).

Because Mr. Bogle's sentence became final after January 1, 1994, Mr. Bogle was required to file his motion for post-conviction relief within one (1) year of the denial of his petition for certiorari review. An extension of time in which to file the Rule 3.850 motion was granted, allowing Mr. Bogle until November 20, 1997. Bogle v. State, Case No. 81,345 (Fla. November 20, 1996)(order granting extension of time to designate counsel). On March 14, 1997, Mr. Bogle filed an initial, albeit incomplete, Rule 3.850 motion in order to toll the time in which to file his Petition for Writ of Habeas Corpus in federal court in light of the newly adopted AEDPA provisions signed into law by President Clinton.

Mr. Bogle filed an amended Rule 3.850 motion on July 5, 2000. On July 13, 2000, undersigned counsel received a phone call from the Assistant State Attorney Vollrath who said she had just discovered new information regarding the shoddy work performed by the FBI crime laboratory in Mr. Bogle’s case and would turn the information over to the defense. See Appendix - Tab 1. The State also stipulated to a sixty-day (60) day period of time for counsel to investigate the information.

On July 24, 2000, a hearing was held on the State’s stipulation to a sixty-day (60) extension of time to amend Mr. Bogle’s post-conviction motion with this new information. The court granted Mr. Bogle until September 25, 2000 to amend his Rule 3.850 with any new claims that may arise.

As of the September 25, 2000 deadline, Mr. Bogle had not received full access to all of the files. Mr. Bogle and the State stipulated to another extension of time until November 30, 2000, to file an amended Rule 3.850 motion. As a result, Mr. Bogle filed another amendment to his Rule 3.850 motion on November 30, 2000. In this amendment, Mr. Bogle included claims that his 1992 guilt phase trial produced an unreliable result in light of the information gleaned from the revelations regarding the FBI Crime Lab. These claims were couched in the alternative of Brady violations, ineffective assistance of counsel, and newly discovered evidence of innocence which undermined the reliability of the 1992 trial.

Before filing an answer to Mr. Bogle’s Rule 3.850 motion, the State on May 24, 2001, made an oral request for a blood sample in order to do new DNA testing. Because the request was made orally, without notice, the court deferred argument until June 6, 2001.

On June 6, 2001, Mr. Bogle’s counsel argued that the State’s request to reinvestigate and attempt to gather new evidence of guilt demonstrated that even the State’s confidence in the reliability of the outcome of the 1992 trial had obviously been undermined by the revelations regarding the FBI Crime Lab. However, the State’s request in 2001 was nine years after the trial, and thus late. Mr. Bogle’s counsel acknowledged that before a retrial, the State would be able to conduct DNA testing. But at a retrial, there would be an adversarial testing of any DNA evidence regarding the outcome that the State chose to present and Mr. Bogle’s Sixth Amendment rights would be honored. Therefore, the State should not be permitted to conduct DNA testing in post-conviction proceedings in an attempt resuscitate a constitutionally unreliable trial by substituting new evidence not submitted to the crucible of an adversarial testing subject to compliance with the Sixth Amendment. Alternatively, Mr. Bogle’s counsel argued that the State should be required to make a showing of good cause for re-testing the DNA evidence as set out for defendants in the newly adopted provisions contained in Fla. Stat. 925.11. The judge rejected Mr. Bogle’s arguments. Given the judge’s position, the manner of how the blood draw would be conducted was addressed. On June 13, 2001, Judge Fuente issued his order formally rejecting Mr. Bogle’s arguments that the State should not be permitted to do post-conviction DNA testing in Mr. Bogle’s case. Appendix - Tab 2. Judge Fuente also ruled that the State was not required to follow Fla. Stat. 925.11, as these provisions only restricted the defendant’s ability to obtain post-conviction DNA testing. Id.

A notice of appeal and a request to stay the drawing of the blood sample was filed on June 21, 2001. Appendix - Tabs 3 and 4. However, the trial court did not rule on the issue raised in the stay motion regarding the deadline for the blood draw, until it could hear argument of counsel. That argument could not be scheduled due to Judge Fuente’s court docket until July 13, 2001.

On July 16, 2001, the State filed a answer to the Rule 3.850 motion. The State agreed that the files and records did not conclusively refute Mr. Bogle’s Brady, ineffective assistance, and newly discovered evidence claims.

On July 16, 2001, Judge Fuente denied a stay and set a new deadline for drawing blood from Mr. Bogle for August 2, 2001. Appendix - Tab 5. On July 27, 2001, Mr. Bogle received a "replacement order" filed by Judge Fuente on July 24, 2001, nunc pro tunc to July 16, 2001, reiterating that the State had until August 2, 2001 to draw the blood sample from Mr. Bogle. Appendix - Tab 6. The State scheduled the blood draw for July 31, 2001. This Court issued a stay of the blood draw on July 27, 2001 and gave Mr. Bogle until August 6, 2001, to respond to the State’s motion to dismiss.

NATURE OF THE RELIEF SOUGHT

Mr. Bogle asserts that the orders dated June 13, July 16 and July 24, 2001, authorizing the State to draw a blood sample of Mr. Bogle’s blood to permit DNA testing do not conform to the essential requirements of law and may cause irreparable injury for which appellate review would be inadequate in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth amendments to the United States Constitution, and the corresponding provisions of the Florida Constitutions for each of the reasons set forth below. Accordingly, Mr. Bogle seeks to have the orders vacated.

In Rule 3.850 proceedings, this Court has authorized pre-hearing discovery: "On a motion which sets forth good reason, however, the court may allow limited discovery into matters which are relevant and material...." State v. Lewis, 656 So.2d 1248, 1250 (Fla. 1994)(quoting and adopting language from Davis v. State, 624 So.2d 282, 284 (Fla. 3d DCA 1993))(emphasis added). But, this Court cautioned: "We conclude that this inherent authority should be used only upon a showing of good cause." Lewis, 656 So.2d at 1250(emphasis added). Subsequently, this Court specifically found that in order to be able to engage in discovery and conduct DNA testing on evidence in the State’s possession, a criminal defendant in post-conviction proceedings must establish that the proposed DNA testing could not have been done sooner. Zeigler v. State, 654 So.2d 1162 (Fla. 1995). And the law of this State is that procedural default rules apply equally to the State. Cannady v. State, 620 So.2d 165, 170 (Fla. 1993).

The legislature has recently adopted Fla. Stat. 925.11 which sets a procedure for post-conviction DNA testing, which as the State has acknowledged: "provides a procedure under which a defendant may petition a court to order an examination of DNA evidence by the Florida Department of Law Enforcement." Response in Opposition to Defendant’s Motion to Stay Proceedings and State’s Motion to Dismiss Appeal at 4. Subsection (2) of 925.11 is in fact entitled: "Method for seeking postsentencing DNA testing." This statute seemingly overturned Zeigler and provided a post-conviction procedure allowing a criminal defendant to obtain DNA testing of evidence.

By its orders of June 13, July 16, and July 24, 2001, the circuit court granted the State’s discovery motion and ordered Mr. Bogle to provide the State samples of his blood without requiring a showing of good cause that the proposed DNA testing would produce admissible evidence relevant and material to Mr. Bogle’s claims that his 1992 trial was a constitutionally inadequate adversarial testing. The State has conceded that the judge rejected Mr. Bogle’s argument that the State was required to make a good cause showing: "Bogle also argues that by requesting retesting the State is conceding error and should be required to show cause for retesting. There is no support for this claim and the trial court’s denial of this argument was clearly within its discretion." Response in Opposition to Defendant’s Motion to Stay Proceedings and State’s Motion to Dismiss Appeal, at 4.

The judge further ruled that the procedural requisites for post-conviction DNA testing as set forth in Fla. Stat. 925.11 were not applicable to the State. See Tab 2. The State agrees with this legal ruling: "As the trial court found, the statute does not attempt to regulate the State’s existing rights with regard to testing of evidence." Response in Opposition to Defendant’s Motion to Stay Proceedings and State’s Motion to Dismiss Appeal, at 4.

The State has explained its justification for the discovery request: "because of allegations made in defendant’s Motion for Post-conviction Relief, the State felt it was prudent to retest certain evidence in preparation for any subsequent evidentiary hearing." Response in Opposition to Defendant’s Motion to Stay Proceedings and State’s Motion to Dismiss Appeal, at 4.

The trial court erred in concluding that the State need not make a showing of good cause and the State’s asserted justification does not constitute good cause.

B. Purpose of Rule 3.850 Proceedings.

The predecessor provision to Rule 3.850 was adopted to "facilitate and expedite the handling of post-conviction claims." Roy v. Wainwright, 151 So.2d 825, 827 (Fla. 1963). This court explained: "The rule is intended to provide a complete and efficacious post-conviction remedy to correct convictions on any grounds which subject them to collateral attack." Roy, 151 So.2d at 828.

In State v. Matera, 266 So.2d 661, 665 (Fla. 1972)(italics in original), this Court undertook to address the proper the procedure adopted in Rule 3.850. There, this court concluded that the "Petition for motion to vacate in this case is a classic example of what post-conviction relief is not intended to be, that is, a procedure for retrial of matters of questions of law litigated" at trial. Thus, it is clear that Rule 3.850 may not be used to simply retry the issue of guilt and innocence. Rule 3.850 may be used to challenge the constitutional adequacy of the trial.

Accordingly, a criminal defendant filing a Rule 3.850 motion must file cognizable claims that undermine confidence in the constitutional adequacy of the trial. Where a criminal defendant meets his burden of persuasion, a new trial is required. At that new trial, the defendant is entitled to constitutional rights to which he is not entitled in the Rule 3.850 proceedings. For example, he is entitled to have a unanimous jury determine whether the State has proven guilt beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277 (1993); Duncan v. Louisiana, 391 U.S. 145, 149 (1968). And, he is also entitled effective representation.

Thus, a Rule 3.850 evidentiary hearing is not a criminal trial, and a criminal trial is not a Rule 3.850 evidentiary hearing. A criminal defendant who proclaims at his arraignment "I am innocent" is entitled to all of the rights guaranteed by the Sixth Amendment, including the right to a jury trial. A criminal defendant who has been convicted at a trial and asserts in a Rule 3.850 motion "I am innocent" is entitled to nothing. "I am innocent" is not a cognizable claim in a Rule 3.850 motion. See State v. Matera. In a Rule 3.850 motion, a defendant must plead facts that taken as true establish a legally cognizable challenge to the validity and reliability of the trial. Richardson v. State, 546 So.2d 1037 (Fla. 1989).

The focus of the Rule 3.850 proceedings is the constitutional fairness and adequacy of the trial. The focus of the trial is on the guilt or innocence of the defendant. A convicted defendant who claims he is innocent must pled specific facts that were unknown at his trial and convince the judge that, when the new facts pled are evaluated against "the evidence which was introduced at the trial," it is probable that the jury would have acquitted. Jones v. State, 591 So.2d 911, 916 (Fla. 1991). If that burden is met, then a new trial is granted. And the new trial must comport with the Sixth Amendment. Alternatively, if the defendant pleads and proves that the State possessed exculpatory evidence that it failed to disclosed and/or the trial unreasonably failed to discover, and the previously unpresented exculpatory evidence undermines confidence in the guilty verdict, a new trial is required.

Accordingly, a defendant’s proffer of a witness’ testimony that supports his not guilty plea is relevant and admissible. In post-conviction, such testimony may not be admissible absent a showing it could not have been discovered sooner and that it is relevant to a cognizable claim. Jones v. State. Since this court explained in State v. Lewis that post-conviction discovery requires a showing of good cause, i.e. that the evidence sought is relevant and material, resolution of good cause requires examination of the cognizable claims by the criminal defendant.

C. Mr. Bogle’s Rule 3.850 Allegations.

In his Rule 3.850 motion, Mr. Bogle alleged that no adequate adversarial testing occurred at his trial regarding the DNA and hair evidence, and thus the verdict is unreliable. Mr. Bogle alleged that either the state withheld exculpatory information regarding the testing or that trial counsel unreasonably failed to adequately investigate the state’s forensic evidence. See, July 5, 2000, Amended 3.850 at page 42. After these allegations were filed, the State disclosed additional material in its possession impeaching the two forensics experts from the FBI Crime Lab called by the State at Mr. Bogle’s trial. See Appendix - Tab 1. Mr. Bogle amended his Rule 3.850 motion with newly disclosed information that the FBI’s testing of the DNA and hair evidence was seriously flawed to such an extent that it was scientifically unreliable. See id. The testimony given by FBI Agents Malone and Deadman was inaccurate. These agents misrepresented the methods and results of their forensic testing. Their conduct prejudiced Mr. Bogle by preventing the true nature of the forensic evidence from being shown to the jury. Accordingly, Mr. Bogle alternatively alleged that this information which was not provided to the jury was 1) not disclosed in violation of Brady, 2) not discovered because of constitutionally ineffective assistance, or 3) new evidence impeaching the State’s experts which was not previously discoverable. This alternatively pleading was done in conformity with this Court’s decision in State v. Gunsby, 670 So.2d 920 (Fla. 1996).

Before filing an answer to Mr. Bogle’s Rule 3.850 motion, the State sought the discovery order at issue in this appeal in order find evidence to bolster its sagging confidence in the reliability of the guilty verdict. Before this Court, the State has explained the basis for its desire to conduct the post-conviction DNA testing: "Because of the allegations made in defendant’s Motion for Post-conviction Relief, the State felt it was prudent to retest certain evidence in preparation for any subsequent evidentiary hearing." Response at 4.

D. The Report on the FBI Crime Lab Impeaches the State’s Trial Experts.

At Mr. Bogle’s trial in 1992, the State presented scientific evidence that it claimed proved Mr. Bogle’s guilt. In fact, Assistant State Attorney Karen Cox argued to the jury in closing that:

There was a well-connected chain of events that leads to one conclusion and one conclusion alone, but the Hillsborough County Sheriff’s Office continued their investigation and enlisted the help of the greatest crime laboratory in the world, the FBI Crime Laboratory...

(R. 556-557). The newly disclosed FBI Crime Lab report sets forth a wealth of impeaching evidence.

1. Trial testimony of Agent Malone.

For example, in the Brady information disclosed by the State on July 13, 2000, was a report by the Department of Justice Task Force on the FBI Crime Laboratory. Appendix - Tab 1. The report was an independent review of the findings of Agent Malone in Mr. Bogle’s case. In the report, an independent examiner found that Agent Malone’s testimony was not consistent with the laboratory reports in the case. The independent examiner was unable to determine whether a scientifically acceptable analysis was performed on the forensic evidence in Mr. Bogle’s case. The independent examiner found that Malone’s examination results were not supported by or adequately documented in the laboratory bench notes. More importantly, the independent examiner stated:

#2 The lab report and testimony state a hair in Q18 is a match to the victim’s pubic hair K6. The examination notes show a Q18 public hair "=" K7. K7 is the victim’s head hair. Apparently confirmation of a hair match was conducted by a second examiner (Qualified ?). The confirmation does not identify which hair were examined by the second examiner.

Appendix - Tab 1 - Independent Case Review Report at page 3.

Special Agent Malone testified at trial that he had found no head hair of the victim on the white pants Mr. Bogle was wearing on the night of the crime. Instead, he found one pubic hair from the victim on the white pants. (R. 317-318). The independent report, however, revealed that the pubic hair was in fact the victim’s head hair and not a pubic hair at all. Id. This was a crucial point in the case because Mr. Bogle spoke with the victim on the evening of the crime. The victim’s sister testified that Mr. Bogle had retrieved the white pants from the clothes dryer in the trailer she shared with her sister, Margaret Torres. At trial, prosecutor Karen Cox argued that the victim’s pubic hair could not have gotten on Mr. Bogle’s pants by casual contact. (R. 559, 561). The implication to the jury was that the only way a pubic hair could have gotten on Mr. Bogle’s pants was through some type of sexual contact.

The jury was also not told that Agent Malone did not do his own testing, but was interpreting the results of another examiner. The independent report showed that another examiner was involved in the case. Id. It is still unknown at this time who the person was who actually did the testing or whether that person was qualified. The jury was not told that Agent Malone was not a scientist or that the methods he or someone else used to perform the testing were not scientific. The Independent Case Review Report clearly concluded that Agent Malone testified falsely at Mr. Bogle’s trial and at the re-sentencing. Appendix - Tab 1. His results were neither reliable nor scientifically sound.

2. Trial testimony of Special Agent Deadman.

The Independent Case Review Report revealed the same flawed forensic testing methods and testimony with regard to the DNA testing of the semen sample. Appendix - Tab 1. At trial, the only piece of physical evidence linking Mr. Bogle to the crime was Special Agent Deadman’s testimony regarding the DNA. Deadman testified that he conducted three DNA tests on the vaginal swab and obtained DNA patterns on two of the tests. (R. 459). One was a match. The other produced an inconclusive result, but for a "technical reason" he could not measure the pieces of DNA. Therefore, he said, it was inconclusive. (R. 465). Trial counsel failed to question Mr. Deadman about his "technical reasons" nor did he question the statistical profiles he relied on.

On direct-examination by the State the following had been elicited:

MS. COX: And how conservative was the FBI in coming up with this data base, the statistics?

DEADMAN: The numbers that we generate using our data bases were designed, if anything to be an overestimate. In other words, the frequency that I am discussing here is very likely larger than the actual frequency and we did this simply because we’re dealing with population samples. Our data bases obviously do not contain all of the people in the United States, they contain only a small percentage of the people and because we’re dealing with population samples and samples from different geographic regions, we designed what we believe to be a very conservative way of developing these population frequencies and so we - - it would be my opinion that, if anything the frequencies that were obtained in this case are over estimates. So in the case of the black data base, the ten percent frequencies would be an overestimate. It’s very likely much smaller than that.

(R. 467-468).

* * *

Q. Can you tell us why you were unable to develop more DNA on these samples?

A. Simply a limitation in the amount of DNA that was recovered. I can’t tell you positively why that occurred. My opinion would be simply that there was very little DNA left at the time that I obtained the vaginal swabs to recover anymore than what was recovered.

(R. 469-470).

On cross examination, trial counsel asked a total of four questions about the DNA analysis. None of the questions challenged the validity of the tests, the gathering of the sample or the statistics Deadman relied upon. (R. 471-472). Mr. Deadman is now retired from the FBI.

In light of the newly disclosed report, Mr. Bogle pled that Agent Deadman did not conduct the actual testing of the DNA samples in this case. According to the Report someone else conducted the tests and Deadman merely interpreted someone else’s results. Appendix - Tab 1.

The Report also indicated that Deadman’s testimony regarding one probe being a conclusive match was scientifically unreliable and unsound because he could not replicate his result. Id. Mr. Deadman testified that there was one other DNA probe that could possibly have been interpreted as a match. But, Deadman stated, he interpreted the probe as "inconclusive" because "for technical reasons" he could not measure the pieces of DNA. (R. 465). However, the Report revealed that this testimony was not accurate and was a misinterpretation of the actual evidence in the FBI file. In addition, the Report suggests that Mr. Deadman’s testimony that he did not have enough DNA sample to test was highly questionable. Id.

Trial counsel failed to request the complete DNA file that, according to the Report, would have revealed problems with the data Mr. Deadman relied upon in reaching his conclusions. According to the Report the FBI Crime Lab in 1991 was relying on faulty databases to conclude that a person was within a certain percentage of the population to leave that DNA. Id. Evidence existed that showed that duplicates were present in the FBI database. The same person could be listed both in the Caucasian and the Afro-American databases. The Report revealed that the lab had a high error rate and that the FBI had made mistakes. Appendix - Tab 1. The Report recognized that two people, just as Mr. Bogle and the victim in this case, can share the same band that could falsely indicate a match when in fact it is really an exclusion. Id. The Report concluded that in 1991 Agent Deadman did not conduct the actual testing that he interpreted. Appendix - Tab 1. The Report disclosed that the FBI lab used agents instead of scientists to conduct their tests. Id. The Report revealed that agents would alter the amount of exposure time of the DNA if they were not getting the results they wanted. Id. Shockingly, the agent would then testify that his results were inconclusive. The Report indicated that FBI agents were notorious for throwing away leftover sample, or keeping the extra samples in their personal refrigerators for private research. Appendix - Tab 1. In fact, the DNA test results testified to by Special Agent Deadman in this case were so unreliable that they would be insufficient to establish identity in a paternity suit no less identification in a death penalty case.

E. State’s Argument for Post-Conviction Discovery.

The State has argued it is not re-opening the criminal investigation and that it has an inherent right to conduct any testing that it wants: "As the trial court found, the statute does not attempt to regulate the State’s existing rights with regard to testing of evidence." Response at 4. The State argues that the trial court correctly rejected Mr. Bogle’s claim that the State was obligated to show cause. Response at 4. The essence of the State’s argument is that the newly-discovered/ Brady information from the Report justifies the State’s request for DNA testing without showing good cause. But the fact is, new DNA testing would not rebut or refute any aspect of a Brady or newly-discovered evidence claim.

The State does not address State v. Lewis, 656 So.2d at 1250, and the requirement therein that in order to obtain discovery in Rule 3.850 proceedings, a party must make a showing of good cause that the evidence it seeks is relevant and material to the Rule 3.850 proceedings. The State does not address the caveat in Rule 3.220(c), which permits pretrial discovery by the prosecutor "subject to constitutional limitations." The State does not address Schmerber v. California, 384 U.S. 757, 770 (1966)("The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great."). The State does not address Winston v. Lee, 470 U.S. 753, 760 (1985)(Schmerber recognized that the ordinary requirements of the Fourth Amendment would be the threshold requirements for conducting this kind of surgical search and seizure."). The State does not address Blore v. Fierro, 618 So.2d 762, 763 (Fla 4^th DCA 1993)(recognizing that a "‘compelled intrusion into the body for blood to be analyzed for alcohol content’ must be deemed a Fourth Amendment search.").

Under well established law, the State was obligated to show good cause and/or probable cause for the extraction of blood from Mr. Bogle for DNA testing. The State has stated:

A court order is only needed to obtain a sample of the defendant’s blood and to release any evidence in the property of the Clerk of the Court to be tested. The granting of that order is a matter within the discretion of the court and to obtain relief Bogle must show that the order departs from the essential requirements of the law and may cause irreparable harm to the defendant.

Response in Opposition to Defendant’s Motion to Stay Proceedings and State’s Motion to Dismiss Appeal, at 5.

So despite recognizing that a court order is necessary, the State’s position is that it need not show good cause. According to the State, it may properly obtain blood from a defendant because "the State felt it was prudent to retest certain evidence in preparation for any subsequent evidentiary hearing." Response in Opposition to Defendant’s Motion to Stay Proceedings and State’s Motion to Dismiss Appeal, at 4.

F. Cause Must Be Shown.

The law of this State could not be much clearer. A Rule 3.850 "court may allow limited discovery into matters which are relevant and material." State v. Lewis, 656 So.2d at 1250. However, the court’s "inherent authority [to permit discovery] should be used only upon a showing of good cause." Id.

The State is seeking to extract blood from Mr. Bogle’s body. Appendix - Tab 7. Not only is such a request properly categorized as "discovery," it constitutes an intrusion into another’s body and requires a showing of probable cause. Schmerber v. California, 384 U.S. at 770.

In circumstances where a capital post-conviction defendant was seeking access to evidence in the State’s possession to conduct DNA testing, the access was denied because the defendant could not establish that he could not previously made the request in conformity with the time limitations imposed by Rule 3.851. Zeigler v. State. And the State of Florida is currently relying upon the decision in Zeigler in proceedings pending before this Court in Gudinas v. State, Sup Ct. No. SC00-954, as precluding access to the State’s evidence for purposes of conducting DNA testing.

Here, the State did conduct DNA testing and presented the results at Mr. Bogle’s 1992 trial. Evidence has now been disclosed revealing the scientific unreliability of the testing that was conducted. The State now seeks a do-over, nine years later, because it would be "prudent." Under the law enunciated in Zeigler, the State cannot show good cause.

G. The New DNA Legislation.

Defendants such as Mr. Bogle have made allegations that forensic evidence testing was flawed since the inception of DNA testing in the late 1980's. Never before, though, has the State found it "prudent" to re-test its DNA evidence. The State wants to re-prosecute the case without having to admit error or concede that a new trial is necessary. The State does not want to rely on the evidence it produced at trial, even though in post-conviction, it should be limited to the record that was presented at trial. The State is fishing for new evidence to replace the evidence upon which Mr. Bogle’s conviction rests.

During this legislative session, the Florida legislature passed Fla. Stat. Sec. 925.11 (hereinafter referred to as "DNA statute"). The DNA statute confers to the defendant the ability to request DNA testing in his case. However, the defendant cannot make this request lightly, he can only request DNA testing if he petitions the court to order an examination of the physical evidence collected "at the time of the investigation of the crime for which he or she has been sentenced which may contain DNA and which would exonerate that person or mitigate the sentence the person received." Sec. 925.11 (1)(a) Fla. Stat. The legislature placed great emphasis on limiting the evidence to that which was collected at the time of the crime. This shows a continued effort by the legislature to have these claims assessed in the context of the record and evidence adduced at trial.

In addition to petitioning the court, a defendant has two years to petition the court after collateral counsel is appointed and must make his petition under oath. His petition must allege:

1. A statement of the facts relied on in support of the petition including a description of the physical evidence containing DNA evidence to be tested and, if known, the present location or the last known location of the evidence and how it was originally obtained;

2. A statement that the evidence was not previously tested for DNA or a statement that the results of any previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques would likely produce a definitive result;

3. A statement that the sentenced defendant is innocent and how the DNA testing requested by the petition will exonerate the defendant of the crime for which the defendant was sentenced or will mitigate the sentence received by the defendant for that crime;

4. A statement that identification of the defendant is a genuinely disputed issue in the case, and why it is an issue;

5. Any other facts relevant to the petition, and;

6. A certificate that a copy of the petition has been served on the prosecuting authority.

Sec. 925.11 (2)(a) Fla. Stat.

The statute, however, is silent as to the requirements for the State when it requests DNA testing of evidence. Oddly, the State asserts that this means that the Statute does not regulate discovery requests by the State. According to the State, "the statute does not attempt to regulate the State’s existing rights with regard to testing of evidence." Response at 4.

Perhaps, the State eschews reliance upon the Statute because it wishes to embark on a fishing expedition and cannot meet the pleading requirements contained in the statute. The State has never identified what evidence it proposes to test, where it is or what it hopes to prove. The State simply argues that DNA testing at this point in the proceedings is the most "expeditious way of fairly addressing defendant’s arguments." Response at page 5. However, Mr. Bogle’s claims deal with the prejudice that inured to him at the time of trial in the context of the evidence that was presented. The State does not show how new DNA testing has any relevance to rebutting a Brady or newly-discovered evidence claim.

Mr. Bogle suggests, as he did at the argument on the State’s motion before the circuit court, that the State should be compelled to follow the same rules as the defense. In this case, the State would be hard pressed to show how any results from their re-testing would affect the Brady/newly-discovered evidence analysis. Any results would be extra-record information that could not be used to argue harmless error.

H. Irreparable Harm

Mr. Bogle welcomes the State’s sagging confidence in the reliability of the outcome of the 1992 trial. However, if the State recognizes that flawed forensic evidence was presented to Mr. Bogle’s jury to such an extent that it has no confidence in the reliability of that evidence, then it is incumbent upon the State to concede that Mr. Bogle has been prejudiced and is entitled to a new trial under Brady and/or Jones. Only then, should the State be entitled to re-test the evidence and present it for an adversarial testing to the trial court. Anything less creates an irreparable harm to Mr. Bogle.

The United States Supreme Court has recognized that before there can be governmental intrusion into an individual’s body it is of great importance to have an "informed, detached and deliberate determination[]" made of the need for such an intrusion. Schmerber v. California.

The FBI documents in this case reflect that the semen samples on the vaginal swabs were consumed back in 1991. Should the Court decide that testing is warranted, Mr. Bogle would be entitled to request that either the sample be split so that he could have testing done at an independent laboratory not connected with the prosecution, or that his expert be present for any testing done by FDLE. Mr. Bogle’s concern is that what little sample that remains would be destroyed by the FDLE agents the State intends to use to test the evidence. In light of the independent FBI report, Mr. Bogle has no confidence that any FBI-trained or law enforcement-affiliated laboratory would fairly and impartially test the forensic evidence.

Mr. Bogle also is concerned that the State’s blanket request to test "everything" is a recipe for disaster since the same law enforcement agencies involved in the original prosecution are the ones who will be responsible for the care and the custody of the samples of the unidentified items to be tested. The defense has no way of knowing what evidence is being tested or when the evidence was collected. Under the circuit court’s order, the State is not even required to show that the evidence they are testing was collected at the time of the crime. Mr. Bogle should not be required to take it on faith that the State will not switch the samples or lose them, as has occurred in some cases.

The most disturbing aspect of the State’s Response is its argument that Mr. Bogle would not be prejudiced by the State re-testing the forensic evidence.

The only possible harm that the defendant has asserted is that the evidence may be used up during testing. Since FDLE is the laboratory specified in the statute to do such testing, this concern is of no moment.

See, State’s Response at page 5.

The fact that FDLE is to conduct the DNA re-testing is of great importance to Mr. Bogle because the FBI crime lab, which trained the FDLE technicians, admits it bungled the testing in 1991. See Appendix - Tab 1. That is why the State finds it necessary to re-test the evidence in the first place. Justifiably, Mr. Bogle has no confidence that the FDLE, a branch of the prosecution, will be any more thorough or careful than the "greatest crime lab in the world." A cavalier scatter-gun approach to such important matters was precisely what the Florida Legislature tried to avoid by promulgating the DNA statute. At the very least, the State should be required to follow the rules of court and be allowed to prosecute the case only once. The State has no right to a "do over" of just the DNA testing when it is no longer confident in the results it presented at trial. Under these circumstances, if there is to be a do-over, it should be of the entire trial. The process the State has chosen to employ carries great risk of irreparable harm to Mr. Bogle. For proof of that, one simply needs to look at the Independent Case Review Report. See Appendix - Tab 1.

WHEREFORE, for the foregoing reasons, Mr. Bogle respectfully requests that this Court vacate the order authorizing the State to extract blood from Mr. Bogle’s body for purposes of DNA testing.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Petition for Extraordinary Relief has been furnished by United States Mail, first class postage prepaid to all counsel of record on August__, 2001.

CERTIFICATION OF TYPE SIZE AND STYLE

This is to certify that the Initial Petition has been reproduced in a 14 point Times New Roman type, a font that is not proportionally spaced.

__________________

TERRI L. BACKHUS

Florida Bar No. 0946427

Backhus & Izakowitz, PA.

303 S. Westland Avenue

Tampa, FL 33606

(813) 259-4424

Attorney for Mr. Bogle

cc:

Ms. Sharon Vollrath

Office of the State Attorney

Courthouse Annex, 4th Floor

800 E. Kennedy

Tampa, FL 33602

The Honorable William Fuente

Courthouse Annex

800 E. Kennedy

Tampa, FL 33602

Ms. Kim Hopkins

Asst. Attorney General

2002 N. Lois Ave., Ste. 700

Tampa, FL 33607