IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT,
IN AND FOR DADE COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff,
CASE NO. 87 - 42355
v.
DIETER RIECHMANN,
Defendant.
______________________/
MOTION FOR DNA TESTING
COMES NOW THE DEFENDANT, DIETER RIECHMANN, by and through undersigned counsel, and respectfully moves this Court to grant his request to conduct DNA testing on the forensic evidence gathered at his original trial. In support thereof, Mr. Riechmann argues the following:
1. On October 18, 2001, the Florida Supreme Court issued Fla. R. Crim P. 3.853, which authorized procedures for obtaining DNA (deoxyribonucleic acid) testing under section 923.11 Florida Statutes. See, Amendment to Florida Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), slip op at page 15 (attached). The rule took effect one day before the Huff hearing in the above case. Mr. Riechmann requested leave to file this motion with the Court, which was granted on October 19, 2001.
2. This new rule affects the issues raised in Mr. Riechmann’s post-conviction motion. Mr. Riechmann maintains his innocence of the charges for which he stands convicted and has maintained his innocence since 1988 when he was indicted in this case. The new rule provides a vehicle for criminal defendants to request DNA testing if the results of the test would "exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for the crime." See, Rule 3.853 (b)(3).
3. During trial, the State presented the testimony of state serologist Rhodes, who testified about the presumptive blood spatter present on a shawl/blanket inside the rental car. The blanket/shawl was tested three times by the Metro-Dade Crime lab. The first two times it came up negative for blood evidence. The third time it came back positive. The defense learned this information on July 7, 1988 (R. 1090-91). Mr. Rhodes sprayed a large piece of filter paper with distilled water and then sprayed the blanket with phenothiazine reagent and sodium perborate reagent. Thereafter, Rhodes looked for a "pink" color to appear on the filter paper. (R. 3769-3770). Rhodes testified that these pink specks could be blood or plant material that is found in different places in nature (R. 3771). The presumptive blood specks were so "minute" that Rhodes placed a plastic overlay on the blanket to assist the jury in seeing the location of these tiny pink specks. To emphasize these specks so the jury could see them, Mr. Rhodes marked them with big circles (R. 3787). The defense objected to the introduction of the overlay with the large circles drawn on it. (R. 3787). The objection was overruled.
4. Despite the fact that the back of Mr. Riechmann’s jeans did not have blood on them, the State suggested at trial that the spots on the blanket that Mr. Riechmann was supposedly sitting on showed that he could not have been in the driver’s seat at the time of the shooting (R. 3794-3802; 3863). Mr. Riechmann testified that he had used the blanket in Germany to wrap his dogs after they had surgery, and for other purposes. Mr. Rhodes testified that other plant material common to nature could have caused the pink color to appear. The testing was not sophisticated enough at the time to determine what the pink spots were.
5. On direct appeal, the Florida Supreme Court underscored the significance that this blood evidence played in convicting Mr. Riechmann. Citing testimony from Rhodes that blood on the driver’s door "could not have gotten there if the driver’s seat was occupied," the Florida Supreme Court stated, "We are satisfied...[e]vidence of blood spatter and stains on the car, blanket and clothes was consistent with the state’s theory of what happened that night." Riechmann v. State, 581 So. 2d 133, 136, 141 (Fla. 1991).
6. At the 1996 evidentiary hearing, defense expert Stuart James concluded that Rhodes’ testing of the blanket was so unscientific that to use it as proof that the driver’s seat was unoccupied was "very misleading." (PC-R. 3702-3703).
7. The DNA technology for testing the blanket was not developed at the time of Mr. Riechmann’s trial in 1988. Since that time, mitochondrial DNA testing has been developed that allows physical evidence to be tested even when the sample is very small. DNA testing was not conducted on the blanket, which could have established conclusively whether the specks on the blanket were blood, and if it was blood, whether it was animal or human. This blanket/shawl is located in the Dade County Circuit Clerk’s Office as an exhibit to Mr. Riechmann’s trial.
8. Should defense testing prove that the specks are not Ms. Kischnick’s blood, this finding would exonerate and mitigate Mr. Riechmann’s conviction. Mr. Riechmann has repeatedly and vehemently maintained his innocence. The only physical evidence that could be tested in this case is the blanket. The blanket is readily available and could be divided so that a defense expert of Mr. Riechmann’s choosing could conduct the mitochondrial DNA testing. At the time the rule goes into effect, Mr. Riechmann would request that he be granted leave to have mitochondrial DNA testing of the blanket by a defense expert.
9. Even though Rule 3.853 (c)(7) designates that DNA testing is to be conducted by the "Florida Department of Law Enforcement (FDLE)," the rule provides that the trial court, on a showing of good cause, may order testing done by an independent laboratory or agency certified by American Society of Crime Laboratory Directors or the National Forensic Science Training Center when requested by movant who can bear the costs of such testing." Rule 3.853 (c)(7). Mr. Riechmann can bear the cost of testing.
10. Counsel has been informed that FDLE does not have the capability to do mitochondrial DNA testing. Because the blanket is large, and because Mr. Riechmann has no confidence that FDLE would be any more accurate in its testing than Mr. Rhodes, Mr. Riechmann would request that any sample taken from the blanket be split so that he may have his own testing conducted at a forensic laboratory of his choice or that a defense expert of his choosing be present when any testing is done by the State.
11. Mr. Riechmann has raised the issue of unreliable forensic testing in his amended Rule 3.850 filed on September 13, 2001. This Court should find that the files and records do not conclusively show that Mr. Riechmann was not entitled to relief, therefore an evidentiary hearing should be granted on this issue.
12. A definitive result from DNA testing of the remaining physical evidence in this case could exonerate Mr. Riechmann. If the spots on the blanket/shawl are not human blood or not consistent with Ms. Kischnick’s blood, it stands to reason that Mr. Riechmann was occupying the driver’s seat at the time Ms. Kischnick was shot. Therefore, he is not the perpetrator. The State argued at trial that Mr. Riechmann was guilty and should be sentenced to death in part because of the forensic evidence.
13. Sufficient samples remain to conduct DNA testing. The blanket/shawl is still intact in the Dade County Circuit Clerk’s Office where it has remained since it was introduced into evidence in 1988.
14. Should this Court decide that testing is warranted, Mr. Riechmann 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. Riechmann’s concern is that the remaining sample would be destroyed by FDLE agents. Further, the age and small amount of the samples indicates that mitochondrial DNA testing would be preferable to nuclear testing such as STR or PCR DNA testing. Mr. Riechmann suggests that he has shown good cause for an independent laboratory to be used for mitochondrial DNA testing. In addition, counsel was informed that FDLE does not have the present ability to conduct mitochondrial DNA testing. See, Amendment to Florida Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), slip op at page 17.
WHEREFORE, for the foregoing reasons, Mr. Riechmann requests that he be allowed to conduct DNA testing on the forensic evidence gathered for his initial trial in 1988.
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant’s Motion for DNA Testing has been furnished by hand delivery to Ms. Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Ste.950, Miami, FL 33131-2407; Mr. Reid Rubin, Assistant State Attorney, 1350 N.W. 12th Street, Miami, FL 33136-2111 on November 1, 2001.
____________________
TERRI L. BACKHUS
Fla. Bar No. 0946427
Post Office Box 3294
303 South Westland Ave.
Tampa, FL 33601-3294
(813) 259-4424
cc:
Mr. Reid Ruben
Office of the State Attorney
1350 N.W. 12th Street
Miami, FL 33136-2111
Honorable Jerald Bagley
Circuit Court Judge
1351 N.W. 12th Street
Miami, FL 33135
Ms. Sandra Jaggard
Asst. Attorney General
444 Brickell Ave., Ste.950
Miami, FL 33131-2407
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