Petition for Writ of Habeas Corpus (Misskelley)

IN THE CIRCUIT COURT OF CLAY COUNTY, ARKANSAS
WESTERN DISTRICT

STATE OF ARKANSAS PLAINTIFF

vs. CR-93-47

JESSIE LLOYD MISSKELLEY, JR. DEFENDANT

PETITION FOR WRIT OF HABEAS CORPUS AND SUPPLEMENT TO MOTION TO PRESERVE EVIDENCE AND FOR ACCESS TO EVIDENCE FOR TESTING

COMES NOW THE DEFENDANT AND PETITIONER, Jessie Lloyd Misskelley, Jr., through his attorneys, Jeff M. Rosenzweig and Michael N. Burt, and for his Petition for Writ of Habeas Corpus and Supplement to Motion to Preserve Evidence and for Access to Evidence for Testing states:

1. This pleading incorporates a Petition for Writ of Habeas Corpus and a reiteration and supplement to his Motion to Preserve Evidence and For Access to Evidence for Testing filed with this Court on November 17, 2000. In that earlier Motion, Misskelley requested that this Court issue an order (a) preserving all physical evidence in the custody of the State of Arkansas, and (b) allowing specific, designated, evidence to be released for examination, review, testing, and where necessary, retesting. At the time of his November, 2000 Motion, the State of Arkansas did not have a specific, statutory basis on which Misskelley could bring it. During 2001, the State enacted a statutory scheme, embodied in Arkansas Code з 16-112-201, et seq., which provides Petitioner Misskelley with a statutory basis on which this Court may also grant the previously made Motion. Thus, Misskelley hereby files a Petition for Writ of Habeas Corpus under provisions of that statute.

2. Additionally, this Supplement and Petition is based upon Article 2, зз 8, 9, 13 and 29 of the Arkansas Constitution, as well as the United States Constitution, Fifth and Sixth Amendments, as applicable through the Fourteenth Amendment.

3. Misskelley specifically relies on all of these and all previously stated grounds to assure a full and fair review of the proceedings which resulted in his conviction.

I. MISSKELLEY IS ENTITLED TO A WRIT OF HABEAS CORPUS UNDER ARK. CODE ANN. з 16-112-101 ET SEQ. HE MEETS THE PRECONDITIONS FOR TESTING SET FORTH IN THE STATUTE.

4. Misskelley hereby asserts and reiterates prior assertions that he is actually innocent of the offenses for which he was convicted, and is thus entitled to issuance of a writ of habeas corpus under authority of Ark. Code Ann. з 16-112-201 et seq. Misskelley asserts that scientific evidence not available at trial establishes the his actual innocence; or the scientific predicate for the claim could not have been previously discovered through the exercise of due diligence and the facts underlying 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 offense.

5. The aforementioned statutes further provide that before consideration of the petition for writ of habeas corpus, the petitioner who satisfies the criteria of the law is entitled to testing. Misskelley hereby asserts that the testing is to be performed on evidence secured in relation to the trial which resulted in the convictions; and that the evidence was not subject to testing because either the technology for the testing was not available at the time of trial or the testing was not available as evidence at the time of the trial.

6. Misskelley is entitled to access to the evidence for testing because he satisfies the statutory requirements of a prima facie case for testing:

-- Identity was an issue at trial.
-- 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. 1
-- The testing has the scientific potential to produce new noncumulative evidence materially relevant to the defendant's assertion of actual innocence; and
-- The testing requested employs a scientific method generally accepted within the relevant scientific community.

7. In summary, Misskelley satisfies all of the requirements of the Arkansas statutes at issue. He claimed actual innocence and mistaken identity at trial. He has concluded his direct appeal. Voluminous physical evidence was acquired and processed by the State in connection with his prosecution and trial. Since the trial and conviction there have been significant advances in the scientific techniques, tests, evaluations and expertise, which are directly applicable to the evidence at issue. He is making claims authorized by Ark. Code Ann. з 16-112-201, and can meet all of the conditions specified in Ark. Code Ann. з 16-112-202.

8. Further allegations of fact supporting these allegations are set below in Sections II and III.

II. THE PERTINENT PROCEDURAL HISTORY AND STATEMENT OF PERTINENT FACTS SUPPORTS PETITIONER'S CLAIMS.

9. Defendant/Petitioner Misskelley was convicted of one count of first degree murder and two counts of second degree murder and was sentenced to life plus 40 years in prison. His conviction was affirmed in Misskelley v. State, 323 Ark. 449; 915 S.W. Rptr.2d 702 (1996) cert. denied 519 U.S. 898 (1996). Misskelley is currently incarcerated in the Arkansas Department of Corrections.

10. Misskelley has filed timely appeals, including a pro se Petition under Arkansas Rule of Criminal Procedure 37. Misskelley has also filed an amended Rule 37 Petition, and has requested the appointment of counsel in part because of the determination, made some time ago, that he suffers from developmental disabilities, and forms of mental retardation -- conditions that persist today.

11. Misskelley was convicted at trial. The jury was sworn on January 20, 1994. (Reporter's Transcript of Proceedings, hereafter "RT" at 657-658.) He was convicted on February 4, 1994 (RT at 1806). Jurors were polled that day.

12. Misskelley was initially arraigned on three counts of capital murder, alleged to have occurred on May 5, 1993. As of August 4, 1993, the State had requested: blood; saliva; head hair; body hair; pubic hair; fingerprint; footprint evidence -- similar evidence was requested from Jason Baldwin who was charged with the same murders as Misskelley. The State additionally requested footprint evidence as to Damien Echols who was also charged (RT at 14-15.) Early in proceedings, the defense made it clear that it wanted to make copies of the entire crime lab file. (RT at 27.)

13. Specific hair and fiber evidence was analyzed by the Arkansas State Laboratory. Some blood and early DNA assessments were also performed in the Arkansas State Laboratory. Some physical laboratory evidence was forwarded to North Carolina for examination. (RT at 136-137.) Other evidence was sent for examination in Alabama.

14. Testimony was offered about the nature of initial searches of and for evidence which disclosed: clothing, including approximately 15 black tee shirts, a white tee shirt (from the Baldwin trailer), black pants, black boots and some knives allegedly connected with Damien Echols. (RT at 167-183.) State of Arkansas criminalist Lisa Sakevicius testified that she participated in searches of various residences. She had initially reviewed the crime scene evidence, attempting to locate fibers and hairs. She had dried out the clothing from the victims and pulled fibers off. (RT at 200-201.)

15. Early in the proceedings, evidence concerning the processing of the scene was produced. Detective Ridge of the West Memphis Police Department testified that the victims' bodies were found in two to two and one half feet of water. Clothing, including shoes, a boy scout cap, among other things, were found in the water in the wooded area in which the bodies were eventually located. There were three victims. They had been tied with shoestrings. (RT at 262-263.) Each victim had sustained knife wounds.

16. On January 26, 1994, it was revealed that a knife belonging to Mark Byers, stepfather or adopted father of one of the victims, had been acquired by a television crew. This knife was eventually shipped to prosecutors for basic DNA testing as available at the time. (RT at 666-667.) Blood was located on the knife and it was eventually found to be consistent with that of Mr. Byers and his stepson.

17. It was revealed prior to Misskelley's trial that approximately 15 knives had been identified, or acquired during the investigation of the case. (RT at 662.)

18. Detective Sergeant Michael Allen of the West Memphis Police Department located shoes in the drainage ditch where the victims were located. (RT at 721.) Detective Bryn Ridge identified a number of items of clothing found near the crime scene including: a pair of blue pants and a boy scout shirt; two black tennis shoes; a pair of jeans with a blue wallet; a striped shirt; childrens' underwear; an additional pair of black tennis shoes; a pair of blue jeans. (RT at 754-761.)

19. Dr. Frank Peretti, Associate Medical Examiner for the State of Arkansas performed the autopsies on all three of the boys. He examined some of the physical evidence connected with them, including but not limited to, certain signs of blunt trauma; possible defensive wounds; one injury that might be consistent with the appearance of the belt buckle. (RT at 833.)

20. During the autopsy process, various swabbings, blood samples, and other bodily fluid samples were impounded. (RT at 814-815.)

21. Detective Bryn Ridge and Lieutenant James Sudbury, both of the West Memphis Police Department, testified that a number of warrants had been served after a statement had been taken from Jessie Misskelley and, as a result, law enforcement officers recovered boots worn by Damien Echols, as well as boots worn by Jason Baldwin. (RT at 991-995.)

22. Criminalist Lisa Sakevicius testified that she had participated in searches at the Echols and Baldwin residences and had recovered a red rayon fiber from the clothing of one of the victims which was similar in appearance to an item taken from the Baldwin home. She also testified that a fiber found on a Cub Scout hat at the scene resembled fibers from a shirt found at the home of Damien Echols. (RT at 1013-1015.) She testified that a fiber found on a white polka dot shirt was consistent with the fiber from a red housecoat from the Baldwin house; a fiber on the boy scout hat was consistent with one from a shirt found in the Echols residence; a green polyester fiber on a pair of blue pants found at the scene was similar to that from a shirt from the Echols house. One Negroid hair was found on a sheet covering up the victim Byers. Some of the red fibers on the Echols clothing could have come from the Moore household. (RT at 1020-1021.) The fibers and hair were eventually sent to the Alabama Crime Laboratory. (RT at 799-800.)

23. According to Criminalist Kermit Channel, a serologist at the Arkansas State Crime Laboratory, blood was not found on the victims' clothing, but some "questioned stains" were found and developed during some of his preliminary testing. (RT at 1031-1032.)

24. Michael Deguglielmo, the Director of Forensic Analysis for Genetic Design, Inc., of North Carolina, noted that he received some 'possible tissue' from the ligatures found with the victims, and 'some cuttings' from blue jeans. He performed certain basic DNA testing using DQ Alpha markers. (RT at 1047.)

25. The defense called Marty King, employed by Bojangles Restaurant in Forest City, Arkansas at the time of the homicides. He had received a complaint from a customer to the effect that an African American man had been in the restroom. He had been bloody, had muddy feet, and was wet up to his knees. (RT 1325.) West Memphis Police Officers came by. Someone had defecated all over the bathroom, and had left blood on a toilet tissue roll. (RT 1327.)

26. The defense offered testimony that Misskelley had an alibi, and was not involved in the killings. The defense also sought to explain that Misskelley had learning disabilities, and a low IQ, through calling Dr. William Wilkins, a psychologist. The defense also called two experts, including Warren Holmes, a former detective sergeant with the Miami Police Department, who explained that under the circumstances presented, it appeared West Memphis Police Officers had used techniques which might have prompted a false confession. The same point was made by Dr. Richard Offshe. In closing argument, the defense clearly sought to establish that Misskelley's statements to police were incorrect, and uncorroborated in important ways. There was an indication that Jason Baldwin was in school and Jessie Misskelley was at work on the day of the killings. Thus, clearly, Misskelley's defense was that he was innocent of the crimes. The prosecution's arguments were aimed at demonstrating that the alibi was not exculpatory, that the physical evidence indicated some form of sexual evidence in that there was "DNA consistent as coming from a source of man's sperm on the pants of one of the boys . . .". (RT at 1779.) The prosecution argued that Misskelley was present at the scene and an active accomplice.

III. A COMBINATION OF CASE LAW, SCIENTIFIC LITERATURE, AND FACTS SPECIFIC TO THIS CASE DEMONSTRATE SIGNIFICANT ADVANCES IN SCIENTIFIC TECHNIQUES, TESTS, EVALUATIONS AND EXPERTISE THAT ARE APPLICABLE TO THE EVIDENCE KEPT BY THE STATE IN THIS CASE.

A. DNA Testing.

27. Appended Exhibits, 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 the year 1993 was performed on a total of 13 items (see Exhibit 1, 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. (Ark. Code Ann. зз 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, et al., National Institute of Justice, June 1996.)

28. The methods by which laboratories, and forensic scientists, apply so called "DNA testing" in forensic sciences has changed vastly since 1993. For example, the Arkansas Crime Laboratory received the 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 beginning to conduct Mitochondrial DNA testing. 2 Mitochondrial DNA is passed from mother to child, and when located and identified in a given sample, allows for very 'specific' identification of biological material.

29. In addition, a variety of techniques, including DNA length variations and related examination technologies, have been developed over the last few years which allow scientists far great 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. Many laboratories, for example, now have advanced technology which allows far more detailed examination of a given sample than was the case with simple "DQ Alpha" techniques, which were applied in this case. Such is the evolution and development of the pertinent sciences that a number of different 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. 3

30. 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.)

31. In sum, the combination of available 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.

A. The Court Should Grant Misskelley The Ability To Apply Currently Accepted Techniques To Fiber and Hair Evidence.

32. During the course of Misskelley's case, the State of Arkansas offered testimony regarding certain fiber evidence which it contended was found at the scene, and consistent with having been transferred from garments found in the houses of Jason Baldwin and Damien Echols. However, none of the pertinent evidence used against Misskelley was, at least according to the testimony at his trial, subjected to technology which would have permitted a detailed review of its cross-section, and appearance as viewed by a Scanning Electron Microscope ("SEM"), and by modern light technique. In today's crime laboratories, the application of these technologies to hairs and fibers is commonplace and commonly known. (See, for example, Deedrick, Douglas, "Hairs, Fibers, Crime, and Evidence" 2 Forensic Science Communications No. 3 (Part 2, Fiber Evidence), July 2000. 4)

33. According to discovery made available to counsel for Misskelley, the State relied upon criminalists from both the Arkansas Crime Laboratory and the Alabama Department of Forensic Sciences in its examination and assessment of the implications of the fiber evidence. Regrettably, Arkansas State Laboratory Criminalist Lisa Sakevicius is now deceased. John Kilbourn, Examiner for the State of Alabama, has retired -- and the State of Alabama apparently no longer is involved in the examination of fiber evidence. Nothing in their reports evidences use of currently accepted SEM technology.

34. Hair and fiber evidence are regularly the subject of testimony in courtroom proceedings. While there have been occasions on which such evidence has been excluded on the basis of a failure to adhere to current scientific principles, or a failure of the proponent to convince the court that the threshold for its admissibility has been met, ". . . the principles and procedures underlying hair and fiber evidence are overwhelmingly accepted and reliable." (U.S. v. Santiago Santiago, 156 F.Supp.2d 145, 152 (D. Puerto Rico, 2001), discussing scholarly works endorsing the use of hair and fiber evidence.)

35. As noted above, the issue here is to ensure that the hair and fiber evidence available in this case be subjected to testing that was either 'not available at time of trial or the testing was not available as evidence at time of trial.' (Ark. Code Ann.з 16-112-202(a)(1)(B).) For this reason, Misskelley moves for the application of scanning electron microscopy, and other currently acceptable scientific techniques, including the application of specialized light sources, to the evidence at issue here.

C. Current Photographic, And Computer Technologies Should Be Applied To The Review Of Latent, Or Developed, Or Observable Fingerprints On Physical Evidence Seized In This Case, Including: All Knives; And All Other Materials Processed For Fingerprints, As Well As Any Surface Likely To Have Preserved Fingerprints.

36. 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.

37. Fingerprint evidence has been accepted by the courts of the state of Arkansas for 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).)

38. There have been concerns about the way that fingerprint evidence has historically been reviewed, as well as over the relative scientific basis of certain fingerprint identification and comparison systems. (See, for example, U.S. v. LLera. Plaza, 188 F.Supp. 2d 549 (Eastern District Penn., 2002).)

39. Ongoing investigation by counsel has revealed that some major law enforcement agencies, and related laboratories, have developed extensive data bases 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.

40. For these reasons, the Court should grant Misskelley's request for analysis of fingerprint or potential fingerprint evidence using current technology.

IV. MISSKELLEY INCORPORATES BY REFERENCE HIS PREVIOUSLY MADE MOTION FOR PRESERVATION AND RELEASE OF EVIDENCE FILED WITH THIS COURT ON NOVEMBER 17, 2000, AND IN DOING SO HE REITERATES SOME BUT NOT ALL OF HIS PREVIOUSLY MADE REQUESTS BELOW. IN ADDITION, HE MOVES FOR ACCESS TO, AND THE TESTING AND EVALUATION OF THE FOLLOWING EVIDENCE OR INFORMATION, USING CURRENTLY ACCEPTED AND AVAILABLE TESTING METHODS, AS PERMITTED BY ARKANSAS CODE зз 16-112-201 et seq.:

1. Items to be submitted for testing and assessment using either: multiple marker PCR (polymerase chain reaction) testing; short tandem repeat testing (STR); or mitochondrial DNA testing on the following items:

a. Items sent for DNA testing with the DQ Alpha
system in 1993/1994 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;

2. All samples obtained from victims Christopher Byers; James Michael Moore; Steven Branch;

3. All samples obtained from Damien Wayne Echols, Richard G. Cummings, Jason Baldwin, Steve Menard, John Mark Byers, Jessie Misskelley, Jr.;

4. 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, and 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;

5. All ligatures booked into evidence in any series of evidence, including, but not limited to evidence series E, Q, FP, BR and K;

6. 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;

7. 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;

8. 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;

9. 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; 5

10. 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;

11. All tissue or suspected human tissue impounded in the following series of evidence: E, Q, K, BR, FP;

b. Misskelley also requests the opportunity to examine through use of scanning electron microscopy (SEM), and through techniques in use and accepted by the trace evidence units of the F.B.I., and all major crime laboratories, as evidenced in currently accepted journals of the forensic sciences, including but not limited to, Forensic Science Communications, all fibers acquired during the investigation including:

1. All hairs and fibers transmitted to the Alabama Department of Forensic Sciences, and described in Forensic Scientist John Kilbourn's letter and inventory dated January 5, 1994 and appended here as Exhibit 4; 6

2. 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;

3. Included in this above-described list of are fibers including but not limited to: black polyester fibers, blue polyester fibers, green polyester fibers, red rayon fiber and cotton fibers found in Items Q-11 through Q-34 as described in Mr. Kilbourn's January 14, 1994 letter;

4. Included in all of the above hair and fiber review requests are requests for the reexamination of hairs and fibers testified to by criminalist Lisa Sakevicius either in this case, or that of State v. Jason Baldwin and Damien Echols. 7

c. Misskelley requests that all items having surfaces that may contain preserved fingerprints be reviewed, and that in any event any partial or full latent prints lifted during the investigation be made subject to digital photography and other techniques allowing further examination and comparison where possible.

A few items of evidence booked in this case were made subject to analysis for possible fingerprints including: Item E-3, a toy Sheriff's star; E-17 a wooden stick; E-21 a box containing mud with possible fingerprints; E-23 a knife and a scabbard; E-24 an ice ax; E-169 a black survival knife. These items were the subject of two reports, the first dated 5/24/93 and the second 12/03/93.

1. Petitioner Misskelley requests that all evidence subject to laboratory analysis for fingerprint evidence be reviewed for fingerprints, particularly any knives seized and inspected as the initial part of the processing of these cases;

2. Any hooks or cotton ropes found at the crime scene including, but not limited to, E19;

3. All bicycles removed from the scene as possibly related to this matter, including, but not limited to, the bicycles identified as having belonged to the three victims in this case.

d. Misskelley also moves for an Order allowing him to seek review of specific crime scene photographs using digital enlargement techniques that would allow more accurate enlargements than were available at the time of the trials of these cases, and make a better assessment of the accuracy of the prosecution's theory concerning the evidence of the killings available at or near the crime scene, including, but not limited to evidence at the crime scene clean up.

1. Finally, Misskelley moves this Court to allow him to use currently available photographic processing, digital image processing, and forensic photographic techniques to enhance photographs of the crime scene, and of physical evidence, taken at or near the time of the original investigation of this case, and made available through the West Memphis Police Department, Arkansas State Crime Laboratory, and through other specialized agencies that assisted in the prosecution of this case.

2. The record of the trial below indicates that at or near the time of the initial investigation, numerous photographs of the scene were taken. Further, specific photographs of evidence processing were taken during the course of the ongoing investigation of the case. None of these photographs, as far as Misskelley and his counsel are aware, have been subject to specialized photographic techniques, such as digitizing, specialized enlargement techniques that would allow accurate, and scientifically defensible expertise to be brought to bear on the meaning and impact of (a) the condition of the crime scene, and (b) the meaning of specific evidence processed during the course of the investigation and prosecution of this case. (At least some specialized photographic techniques are described in the F.B.I.'s Handbook of Forensic Science (U.S. Department of Justice) (1994, et seq.).

CONCLUSION

For all of the reasons set forth here, and in Misskelley's originally filed Motion,
he submits that he is entitled to habeas corpus relief as prayed, and specifically, to orders granting the release of all evidence described here for reanalysis, reexamination, and review, as well as for processing in the manner described above.

DATED: September __, 2002

Respectfully submitted,
JEFF R. ROSENZWEIG
MICHAEL N. BURT

By________________________
JEFF R. ROSENZWEIG

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Footnotes:

1 Jessie Misskelley is aware that Jason Baldwin was convicted of the same homicides at issue here, before this Court in State of Arkansas v. Damien Echols and Jason Baldwin (CR 93-450 and 450A). Mr. Baldwin filed a similar motion to preserve evidence and for access to evidence for testing to that of Misskelley more than one year ago. Thus, Mr. Baldwin may be an interested party in this matter. Counsel for Misskelley has also been informed that a Motion for Forensic DNA Testing has been addressed to this Court in Damien Echols v. State of Arkansas, CR 93-450. Because counsel for Misskelley has specifically been informed by the Court that his motion is to be heard separate and apart from any motions filed by Mr. Baldwin or Mr. Echols, this Motion is filed only on behalf of Misskelley. However, Misskelley recognizes that while he was the first to file a motion to preserve evidence and for access to evidence for testing, this Court may deem it most productive to conduct a joint hearing on these matters because some of the testing sought may be destructive testing (i.e. samples processed on behalf of one party may effectively СuseТ or consume that sample in the course or context of the testing). If the Court decides to consolidate the cases for hearing, Misskelley specifically reserves the right to join in any motions for testing or examination brought by Mr. Baldwin and/or Mr Echols.

2 See Appended Exhibit 2, letter from Daniel T. Stidham to Kermit Channel, Arkansas Crime Laboratory and Exhibit 3, Mr. ChannelТs response to Mr. Stidham.

3 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, УDNA Typing: Emerging And Neglected Issues,Ф 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 pertinent scientists testified about these emerging techniques at length in People v. Parnell, et al., California Superior Court, County of Sacramento, 98 F.008869 et seq. [a series of cases consolidated for hearing on the acceptance of current technology].

4 The author of this publication, Douglas W. Deedrick, was the Unit Chief, Trace Evidence Unit of the Federal Bureau of Investigation when he authored this piece.

5 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 Сblood sample from Steve Menard.Т 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 SciencesТ letter Item K-107 is described as, Уone paper bag labeled СE-105 white tennis shoes from JasonТs 93-05716 Q74 Q75.ТФ Items identified in this motion by number can be located on specific law enforcement agency inventories, if necessary.

6 See Footnote 1, above regarding the numbering of various items.

7 Misskelley requests a review of fiber evidence in the context of his case, as the State of Arkansas has contended that the men that Misskelley is alleged to have assisted in the commission of the three murders, namely Jason Baldwin and Damien Echols, were linked to the crime scene by fiber evidence. Criminalist Lisa Sakevicius testified about fiber evidence in MisskelleyТs trial. (RT at 1006-1026.) None of the fiber evidence at issue here was subject to SEM or other advanced testing.