Comes now the Defendant, WAYNE TOMPKINS, by and through undersigned counsel and respectfully requests that this Court enter an order directing the State to disclose any information and/or any impeachment information regarding Mr. Tompkins’s case or witnesses involved in Mr. Tompkins’ case. In addition, Mr. Tompkins request that DNA testing of the evidence sent to the FBI lab in 1984 be conducted at this time. In support of this request, Mr. Tompkins states as follows:

1. On April 6, 2001, Mr. Tompkins sent Governor Bush a letter requesting a stay of execution so that DNA testing could be conducted on the evidence sent to the FBI for testing in 1984. Attachment A. The Governor’s office responded to the request through the media saying, "We’re currently investigating the statements made by Mr. Tompkins’ lawyer in his letter to the governor, and if there is any relevant DNA evidence we’ll take steps to make sure it is properly tested."

2. Though agreeing DNA testing should occur, the newspaper reported that "Bush spokeswoman Katie Baur said the execution would not be stayed." Attachment B. Thus, Mr. Tompkins files this motion seeking an order compelling DNA testing of the forensic evidence that was previously sent to the FBI for testing in 1984.

3. During the course of the 1984 investigation into Miss DeCarr’s death, several items containing biological evidence, discovered along with her corpse, were forwarded to the Federal Bureau of Investigation Crime Laboratory for forensic testing. These items were sent along with evidence from another case involving a young woman, Jessie Albach, (a friend of Miss DeCarr’s), whose decomposed body was found about one month before the discovery of Miss DeCarr. The police believed that the same perpetrator might have committed the two homicides. Attachment C. Although Mr. Tompkins at one point was suspected to have been involved in Ms. Albach’s death, charges were not filed because there was no evidence to connect Mr. Tompkins to either her disappearance or death.

4. According to the FBI Lab report, several hairs discovered with Miss DeCarr’s body and forwarded for a comparison " are suitable for possible future comparison." Moreover, other hairs "did not possess sufficient individual microscopic characteristics to be of value for significant comparison purposes." Given the advances in forensic technology and in DNA testing since 1984, these items of evidence could now be tested. Any of this evidence which did not connect Mr. Tompkins to Miss DeCarr’s death, or which could establish that the corpse may not in fact be that of Lisa DeCarr, would be highly exculpatory information that would exonerate Mr. Tompkins.

5. Recently, in State v. Holton, a capital case from Hillsborough County, this Court granted a defendant’s request in 3.850 proceedings for DNA testing of hair found on a deceased victim and identified in 1986 as possibly coming from the defendant and argued by the prosecutor in that case as definitely not the victim’s hair. On November 15, 2000, the mitochondrial DNA testing was concluded and it was discovered that the hairs came from the victim or a maternally related individual. "Rudolph Holton is clearly excluded as a possible contributor of the questioned hairs."

6. Mr. Tompkins seeks to have the evidence previously submitted to the FBI for forensic analysis tested by the same examiner used in State v. Holton: Terry Melton; Mitotyping Technologies, LLC; 1981 Pine Hall Dr.; State College, PA; 16801.

7. Since the Governor’s Office is apparently in agreement that any available forensic evidence be submitted for DNA testing, the testing of the evidence should occur as expeditiously as possible.

WHEREFORE, Counsel for Mr. Tompkins moves this Court to enter an order requiring the submission of the evidence previously sent to the FBI to a qualified DNA examiner so that mitochondrial DNA testing of the evidence can occur.

COUNSEL HEREBY CERTIFIES that a true copy of the foregoing motion has been furnished by first class mail, postage prepaid, to all counsel of record on April ___, 2001.

Respectfully submitted,

 

________________________ TODD g. SCHER

Litigation Director

Florida Bar No. 0899641

CAPITAL COLLATERAL

REGIONAL COUNSEL

101 N.E. 3^rd Ave.

Suite 400

Ft. Lauderdale, Florida 33301

(954) 713-1284

Attorney for Mr. Tompkins

 

 

 

Copies furnished to:

Honorable Daniel Perry

Circuit Court Judge

Sharon M. Vollrath

Assistant State Attorney

Robert Landry

Assistant Attorney General