Wednesday 18 February 2009

Correct a Terrible Mistake


From the Standdown Blog :




That's the title of a Baltimore Sun OpEd by former Maryland Speaker of the House Casper Taylor. LINK


In 28 years in the Maryland House of Delegates, nine as speaker, I cast thousands of votes. I have few regrets. But there is one vote I wish I could take back - my 1978 vote to reinstate the death penalty in Maryland.My vote seemed reasonable at the time. The Supreme Court had thrown out all state death penalty laws. Like other states, Maryland re-enacted the death penalty by approving a system that complied with new criteria established by the high court.


Today, that vote haunts me. Since reinstatement, Maryland's 30 years of experience with the death penalty have been a colossal failure. I now believe that life in prison without the possibility of parole is a better alternative. The majority of Marylanders agree.Late last year, a respected state commission chaired by former U.S. Attorney General Benjamin R. Civiletti conducted the most thorough examination of Maryland's death penalty ever performed. The commission's report is a terrifying indictment of the system our state government uses to take a life. It should be required reading for the General Assembly.


And:


Decades ago, I was sure that the death penalty made sense for the "worst of the worst."Today, thanks to the commission's report and all that we have learned about the death penalty since 1978, I can reconcile my moral convictions with a practical public policy decision. Replacing the death penalty with life without parole is not only the right thing to do, it is the smart thing to do.Capital punishment is rightfully on its way out in the United States. Maryland can and should be a national leader. I hope our state legislators will correct the mistake my colleagues and I made 31 years ago.


Earlier coverage of the Maryland legislation begins here.

Osborne : A case we`re watching


From the blog of The Innocence Project of Florida :



Wednesday, February 18, 2009

Osborne: A case we're watching


Arguments are set to begin in early March in the case of District Attorney’s Office for the Third Judicial District v. Osborne. This summary of the case comes from SCOTUSblog. (That site and its partner wiki, as always, are great sources of info, should you wish to read up more on the case.)


On March 2, 2009, in No. 08-6, District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court will hear argument in a case that involves the relationship between the most cutting-edge DNA technology, capable of establishing guilt or innocence with unprecedented conclusiveness, and the longstanding constitutional right for the accused to receive fair process.


Fourteen years after his conviction for kidnapping and sexual assault, William Osborne seeks access to sperm deposited inside a condom found at the scene of the crime. At his own expense, he wishes to subject this evidence to sophisticated DNA testing, unavailable at the time of his trial, which he believes will definitively prove his innocence. During post-conviction proceedings, the state of Alaska denied Osborne access to this DNA evidence because of the other factors demonstrating his guilt. Osborne then brought a suit in federal court claiming that Alaska’s refusal to allow access to the evidence violated his due process rights under the Fourteenth Amendment. The Ninth Circuit agreed.


The Supreme Court must now address two decisions by the Ninth Circuit that have potentially far-reaching implications. First, the Ninth Circuit held that Osborne can bring a lawsuit against Alaska to access evidence instead of seeking a writ of habeas corpus, the procedural device afforded prisoners for invalidating a state conviction in federal court. The Ninth Circuit also held that the due process clause guarantees Osborne the right to access the DNA evidence so that he may ultimately bring a habeas corpus action to challenge his conviction.


In holding that Osborne has a right to access the DNA evidence, the Ninth Circuit also assumed without deciding a question that the Supreme Court has carefully avoided in the past ─ whether a prisoner with access to this evidence can then overturn his conviction by asserting a “freestanding innocence” claim, based solely on the ground that he is not guilty rather than on any trial defects. If the Supreme Court overturns the Ninth Circuit’s decision, it may have to grapple with this important question.


The Innocence Project in New York excerpts this article from McClatchy, in whichPeter Neufeld exhibits a genuine shock at the prosecution's stubbornness.


"Most prosecutors want to do justice and they want to get to the truth," Even if they believe deep down that a defendant is guilty, many also reason, "Fine, I'll give them the test. What's the downside? It's just a test - it's not letting them out of prison."


It should be obvious why our organization is watching this case very carefully. We are lucky in Florida, in the sense that a particular rule of the State's criminal procedure establishes the right for an inmate to file a motion to seek DNA testing. Florida is one of over 40 states that make such an allowance for people who have already been convicted of a crime. Alaska is one of the remaining handful of states that make no explicit allowance. In addition, Alaska has never granted an inmate post-conviction DNA testing.


We hope the Supreme Court can recognize what is at stake in this case. Many people were convicted and sentenced before the revolutionary advent of DNA testing. So far, over 230 people nationwide have been exonerated by testing biological evidence that remained since they were convicted. It is imperative that the Supreme Court recognize the gravity of those exonerations and the evidence they provide for the fallibility of our legal system, and extend the right to post-conviction DNA testing to all inmates in America.

Monday 16 February 2009

Innocence Project of Florida Plans to Test Tompkins Evidence

Frank Lee Smith


Innocence Project of Florida,

Inc.1100 East Park Avenue,

Tallahassee, FL 32301

Telephone 850.561.6767

Fax 850.561.5077




For Immediate Release



PRESS RELEASE



February 16, 2009


Contacts:Seth Miller, Esq.: 202.341.2127


Innocence Project of Florida Plans to Test Tompkins Evidence

Tompkins could be First Ever Executed Man to be Proven Innocent


Today the Innocence Project of Florida (IPF) reiterated its intent to test the remaining DNA evidence in the case of Wayne Tompkins. Mr. Tompkins was executed on Wednesday, February 11th, in Raiford, Florida after being found guilty of murdering Lisa DeCarr in 1983. IPF believes that further testing in the case could reveal that the body did not belong to the alleged victim, meaning Mr. Tompkins had been convicted of a murder that did not take place.



“We have a remarkable case with Mr. Tompkins,” said Seth Miller, Executive Director of the Innocence Project of Florida. “The State supported this match between the body and the victim with a partial dental record, which was pretty unconvincing. But on top of that, several people have signed affidavits saying that they’ve seen her alive since the murder.



If that’s the case, then Florida just killed an innocent man.



”If it were found that Mr. Tompkins was innocent of the 1983 murder, it would be the first case in American history of an executed man being scientifically proven innocent posthumously. In 2000, Frank Lee Smith was exonerated by DNA testing 11 months after he died of cancer on Florida’s Death Row.



IPF sent a letter to Florida Governor Charlie Crist on Tuesday, February 10th, urging him to stay Tompkins’ execution. On the next day IPF filed a motion asking a judge to notify the appropriate authorities of their statutory obligation to preserve the evidence in Mr. Tompkins’ case for 60 days after his execution. The Thirteenth Circuit Court granted that motion the same day.



“These agencies need to know we’re serious about going forward with testing, and we want to make sure they are preserving all of the evidence pursuant to Florida law,” said Miller.



“If the State Attorney is convinced that Mr. Tompkins was guilty, they should support testing to put the doubts to rest. We’ll pay for it, they just need to give us access to the evidence.”“We look forward to working with the State Attorney’s Office to get the DNA testing,” added Miller.



“We’re going to make sure we discover the truth in this case.



”The Innocence Project of Florida is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons. IPF consulted on the DNA issues in the case of Wayne Tompkins.



Innocence Project of Florida

1100 East Park Ave

Tallahassee,

FL 32301

US


Saturday 14 February 2009

National Academy of Sciences blasts Nation`s Crime Labs


Jimmy Ates


From the blog of the Innocence Project of Florida :



A report being released this month by the National Academy of Sciences is expected to be "a sweeping critique of many forensic methods that the police and prosecutors rely on," according to The New York Times last week.


People who have seen it say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting.

The report says such analyses are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court.

It's authors recommend the creation of a federal agency "to finance research and training and promote universal standards in forensic science, a discipline that spans anthropology, biology, chemistry, physics, medicine and law." Oh, and it also "calls for tougher regulation of crime laboratories." Hmmm....is it a surprise then to find out that the report's publication was delayed by opposition from law enforcement?

What is it with these guys? The reason for using science in investigations is to find the truth -- not to exaggerate it, distort it or create it, but to find it. Why do so many law enforcement personnel and prosecutors react so negatively to attempts to discover the truth about a crime? In the words of The King, it never ceases to amaze me that we continue to get resistance from certain State Attorneys to DNA testing, and even AFTER we have exclusionary DNA results in a case, they continue to resist. I mean, what exactly is it that THEY are seeking? It's certainly not the truth, or they would welcome testing if the evidence is available.

And what really got my ticker going was learning that

the National Institute of Justice, a research arm of the Justice Department, tried to derail the forensic study by refusing to finance it and demanding to review the findings before publication. A bipartisan vote in Congress in 2005 broke the impasse with a $1.5 million appropriation.

That's our National Institute of Justice, a misnomer if I've ever heard one. There is so much wrong with this that words fail me. I'm just sitting here shaking my head.

It's hard to say how much of an impact the report will have. The National Academy certainly shook things up in 2004 when they issued a report discrediting the practice of "matching the chemical signature of lead in bullets at a crime scene to similar bullets possessed by a suspect." The F.B.I. ended up having to contact hundreds of people who might have been wrongfully convicted due to this bogus science. One of them, Jimmy Ates, is here in Florida. Jimmy is now out on bond and waiting to see if the State will re-try him.

"Everyone interviewed for this article agreed that the report would be a force of change in the forensics field." We can only hope.

Read the entire article here.

Visit IPF's Website here;

sign up to volunteer here;

contribute to our work here.

Tuesday 10 February 2009

Letter from Florida Innocence Project to Governor Crist - the case of Wayne Tompkins

Letter from Florida Innocence Project to Governor Crist - the case of Wayne Tompkins

The letter from Florida Innocence Project to Governor Crist - the case of Wayne Tompkins

http://www.oranous.com/innocence/WayneTompkins/crist_letter_tompkins_21009.pdf

Pressrelease from Florida Innocence Project - Wayne Tompkins

Pressrelease from Florida Innocence Project - Wayne Tompkins

http://floridainnocence.org/pdf/tompkins_release_21009.pdf

Innocence Project of Florida, Inc.
1100 East Park Avenue,
Tallahassee, FL 32301
Telephone 850.561.6767
Fax 850.561.5077

For Immediate Release
PRESS RELEASE
February 10, 2009
Contacts:Seth Miller, Esq.: 202.341.2127

Innocence Project of Florida Urges Governor to Stay Wayne Tompkins’ Execution
New Round of DNA Testing Could Answer Lingering Questions about Victim’s Identity

The Innocence Project of Florida (IPF), in a letter signed by their Executive Director Seth Miller, today urged Florida Governor Charlie Crist to stay the execution of Wayne Tompkins, who is scheduled to be killed on Wednesday by lethal injection. Serious doubts persist about the identity of the victim, and IPF believes a new round of DNA testing is likely to answer these important questions.

“We still harbor grave concerns about the legitimacy of Mr. Tompkins’ guilty verdict,” said Miller in his letter. “We feel strongly that more time is necessary to look into this case.”

Mr. Tompkins was found guilty of murdering Lisa DeCarr in 1983. The evidence against him was circumstantial and consisted of three witnesses, including one jailhouse snitch. The nature of this case is also uncommon because the identity of the victim herself is also in doubt.

The victim’s alleged identity was supported at trial by a comparison with dental records which Miller says was “wholly unpersuasive.” Since then, several individuals have signed affidavits claiming to have seen her alive since the murder.“

Because the dead body’s identity is an issue, [late last year] you ordered DNA testing on bones from that dead body as well as a robe and sash found with the dead body,” Miller wrote to Crist. “We presume you did so in order to remove any remaining questions about whether the State of Florida was about to execute an innocent man.” That round of testing came back inconclusive, says Miller. But he adds that,“the facts of the case have not changed. The uncertainty surrounding the identity of the alleged victim that led to the last round of DNA testing still exists. There should be clarity about the identity of the alleged victim before we execute a potentially innocent man. That clarity is obtainable in Mr. Tompkins’case.”

IPF believes that a new round of DNA testing, involving methods that have not yet been tried in this case, would likely yield results.

Miller pledged to work with Governor Crist to “answer these remaining questions and finally obtain closure in this case,” urging patience in order to avoid executing a potentially innocent man on Wednesday.

The Innocence Project of Florida is a 501(c)(3) organization dedicated to finding and freeing innocentpeople in Florida prisons.
IPF consulted on the DNA issues in the case of Wayne Tompkins.# # #

Man exonerated by DNA is freed after 24 years - IN FLORIDA



Man exonerated by DNA is freed after 24 years

Accused of robbery, rape, Floridian is glad for day ‘a long time coming’

Alan Crotzer throws his arms in the air Monday as he leaves the Hillsborough County Courthouse in Tampa, Fla.

updated 7:43 p.m. ET Jan. 23, 2006


TAMPA, Fla. - Alan Crotzer stepped into the warm sunlight outside the courthouse Monday and raised his arms to the sky, celebrating his freedom after more than 24 years behind bars for crimes he didn’t commit.

A judge freed the 45-year-old Crotzer after DNA testing and other evidence convinced prosecutors he was not involved in the 1981 armed robbery and rapes that led to his 130-year prison sentence.

“It’s been a long time coming,” said Crotzer, his black hair graying at the temples. “Thank God for this day.”
Crotzer walked free more than three years after he wrote to the Innocence Project in New York, a legal clinic that seeks to exonerate inmates through DNA testing.“
Are you ready for what you waited so long to hear?” Circuit Judge J. Rogers Padgett said to Crotzer during the brief hearing. “Motion granted — you’re a free man.
”Members of Crotzer’s family and other courtroom spectators clapped and cheered as a bailiff removed the shackles from his wrists and ankles.
Hailed by prosecutor
Prosecutor Mike Sinacore congratulated him. “Trying to fix an error in the system is just as important as trying to convict someone who is guilty,” he said.
DNA has been used to clear at least 172 people wrongly convicted of crimes in 31 states since 1989, according to the Innocence Project.
Crotzer and brothers Douglas James and Corlenzo James were convicted of robbing a Tampa family in 1981. Douglas James and Crotzer were also found guilty of kidnapping and raping a 38-year-old woman and her 12-year-old girl at gunpoint.
A victim picked Crotzer out of a photo lineup. But Douglas James says Crotzer is innocent. He said he and his brother were the rapists and a childhood friend was their accomplice.
Crotzer, who has never held a paying job, said he will go live with a sister in St. Petersburg and try to find work. His attorneys said they will seek compensation from the state for him.
‘I’m not bitter’
In December, Gov. Jeb Bush signed a bill allowing Wilton Dedge to receive $2 million for the 22 years he spent in prison for a rape he did not commit. Dedge, 44, also was exonerated by DNA evidence.
“There ain’t no compensation for what they done to me,” said Crotzer, whose mother died while he was in prison. “But I’m not bitter.”
Crotzer said he was looking forward to a barbecue with his family, who promised him his favorites — pork chops and banana pudding. Then, he said, he wanted to take a bath in a real bathtub.
“I want to soak,” he said. “I want to get some of this off me.”

NOTICE OF APPEAL - WAYNE TOMPKINS

http://www.oranous.com/innocence/WayneTompkins/Filed_02-10-2009_Notice_Of_Appeal.pdf

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CASE NO. 84-CF-010538 STATE OF FLORIDA,

Plaintiff,

v. WAYNE TOMPKINS, Defendant. __________________________/ NOTICE OF APPEAL

WAYNE TOMPKINS, Defendant in the above-captioned action, files this, his notice of appeal, in order to appeal to the Florida Supreme Court the February 10, 2009, order that denied Mr. Tompkins’ motion to vacate judgment and sentence and that denied Mr. Tompkins’ motion for DNA testing of evidence in the possession of the State. Mr. Tompkins also appeals to the Florida Supreme Court all adverse rulings made by the circuit court during the pendency of Mr. Tompkins’ motion to for post conviction relief that was initially served on February 5, 2009, and adverse rulings made by the circuit court during the pendency of Mr. Tompkins’ motion for DNA testing that was initially served on December 1, 2008.

I HEREBY CERTIFY that a true copy of the foregoing Notice of Appeal has been furnished by mail, to Jalal Harb, Assistant State Attorney, Office of the State Attorney, 800 East Kennedy Blvd., 5th Floor, Tampa, FL 33602-4148; Scott Browne, Assistant Attorney General, Department of Legal Affairs, 3507 Frontage

Road, Suite 200, Tampa, FL 33607 on February 10, 2009.

MARTIN McCLAIN Special Assistant CCRC-SouthFlorida Bar No. 0754773 141 N.E. 30th Street Wilton Manors, FL 33334

(305) 984-8344

NEAL DUPREE CCRC-South 101 NE 3rd Ave., Suite 400 Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Tompkins

2

Former Tampa man close to execution for killing teenager

Marty McClain and Juan Melendez

Former Tampa man close to execution for killing teenager


By Colleen Jenkins, Times Staff Writer

http://www.tampabay.com/news/courts/article974717.ece


Posted: Feb 10, 2009 01:19 PM



TAMPA — After 23 years on death row, Wayne Tompkins has a day to live.

Barring any last-minute relief from his pending state and federal appeals, the 51-year-old former Tampa resident will be executed at 6 p.m. Wednesday for strangling his girlfriend's daughter and burying her body beneath the home where they lived.

Prosecutors say Tompkins tried to force himself on 15-year-old Lisa DeCarr and killed her when she resisted. With no physical evidence linking him to the murder, the state relied on testimony from three key witnesses to win a conviction.

Therein lies the problem, say Tompkins' lawyers, who have long attacked the credibility of those witnesses and the reliability of what they said.

"The evidence against Mr. Tompkins is just absurd," attorney Martin McClain said.

Jurors didn't think so. Neither did the circuit judge who sentenced Tompkins to death, nor the long list of state and federal judges who have denied the inmate's litany of appeals.

McClain says none of them had the benefit of DNA testing that was conducted only recently and that he argues remains incomplete. He believes the keys to the case could be locked inside this biological material. He's running out of time to prove it.
•••
Lisa DeCarr was initially reported as a runaway after she disappeared on March 24, 1983, from her Southeast Seminole Heights home. She had been suspended from school for smoking; those close to her thought she might be pregnant.

Perceptions changed in June 1984 with the discovery of a shallow grave below the porch of her home at 1225 E Osborne Ave. In about a foot of dirt, searchers found skeletal remains in a pink bathrobe, its sash tied tightly around the neck bones.

The robe belonged to Lisa, her mother said. She told police that Tompkins, her live-in boyfriend, had been at home alone with Lisa the day she disappeared.

Tompkins, then 27, was arrested that fall and put on trial a year later. By then, he had already pleaded guilty and was serving time for abducting and raping two convenience store clerks in Pasco County.

Prosecutors said three witnesses would provide "the overwhelming evidence" that he killed Lisa: her mother, who said she had last seen her daughter in a pink robe; her best friend, who said she had seen Tompkins and Lisa struggling on the couch as he tried to take off her clothes on the day prosecutors say she died; and a jail cell mate, who said Tompkins told him the details of the killing, down to how he buried her with her purse and clothes to make it look as if she'd run away.

But last November, the former cell mate claimed that the prosecutor, Mike Benito, had instructed him to include the purse detail in his testimony even though the informer didn't recall hearing that from Tompkins.

Benito denied doing so.

Florida Supreme Court Justice Harry Lee Anstead said the disclosure could have changed a jury's evaluation of the case. His colleagues disagreed, saying the main thrust of the informer's testimony had not changed, and denied Tompkins' appeal.

Appeals courts have shot down most of Tompkins' arguments. He got his best chance at life in April 2001, when Hillsborough Circuit Judge Daniel Perry granted him a new sentencing hearing just two weeks before he was scheduled to be executed. Perry ruled that the trial judge — the late Harry Lee Coe, nicknamed "Hanging Harry" and known for handing down harsh punishments quickly — had improperly handled the sentencing.

But in 2003, the state Supreme Court ruled that no new hearing was necessary. Tompkins continued to pursue appeals.

It wasn't until December that Gov. Charlie Crist ordered the DNA testing Tompkins' attorneys had been seeking for years.
As part of their efforts to exonerate Tompkins, who has always maintained his innocence, McClain and his colleague, Neal Dupree, want proof that the remains are actually Lisa's. Their suspicion stems from reports that people saw or heard from Lisa after the date that prosecutors contend she died, claims that have never been substantiated in court.

"Pink bathrobes are pretty much a dime a dozen," McClain said, referring to one of the key pieces of evidence used to identify Lisa.

The attorneys also wonder if hair and blood evidence that they only recently learned existed might point to a different killer.

So far, that hasn't happened. The DNA test results from the FBI and Florida Department of Law Enforcement came back last month as inconclusive.

On Monday, McClain and Dupree requested a stay of execution. They need more time, they said, to pursue further testing.

In a pointed response, prosecutors noted that the Florida Supreme Court has ruled that such DNA tests would have "no reasonable probability" of vindicating Tompkins.

"This eleventh hour application is clearly without merit and simply represents another attempt to delay Tompkins' long overdue execution," Assistant Attorney General Scott A. Browne wrote.
Not true, McClain said.

He points to the case of Alan Crotzer, of St. Petersburg, who spent 24 years in prison for two rapes he did not commit. DNA evidence exonerated him in 2006.

It took three rounds of testing by independent labs before one was able to produce meaningful results.

Colleen Jenkins can be reached at cjenkins@sptimes.com or (813) 226-3337.
[Last modified: Feb 10, 2009 02:11 PM]

Monday 9 February 2009

PETITION SEEKING TO INVOKE THIS COURT'S ALL WRITS JURISDICTION AND APPLY TO THIS COURT FOR A STAY OF EXECUTION


WAYNE TOMPKINS,

Petitioner,

v. CASE NO. SC09-___

BILL McCOLLUM,
Attorney General of the
State of Florida,

and,

WALTER A. McNEIL,
Secretary,
Department of Corrections,
State of Florida,

Respondents.
____________________________________/

PETITION SEEKING TO INVOKE THIS COURT'S ALL

WRITS JURISDICTION AND APPLY TO THIS COURT
FOR A STAY OF EXECUTION

Article V, Section 3(b)(1) and (7) of the Florida
Constitution gives this Court exclusive appellate jurisdiction
over all capital cases and the ability to issue “all writs
necessary to the complete exercise of its jurisdiction.” This
Court's “all writs” jurisdiction may be invoked in capital cases
when warranted by circumstances. Lightbourne v. McCollum, 969
So. 2d 326 (Fla. 2007); Jones v. Butterworth, 701 So. 2d 76 (Fla.
1997); Johnston v. Singletary, 640 So. 2d 1102 (Fla. 1994). The
circumstances presented herein warrant invocation of the “all


writs” jurisdiction.

Mr. Tompkins is an indigent death-sentenced defendant.
Tompkins v. State, 502 So. 2d 415 (Fla.), cert. denied, 483 U.S.
1033 (1987). In March of 2001, Governor Bush signed Mr.
Tompkins’ death warrant. In April of 2001, Mr. Tompkins filed a
Rule 3.851 motion in circuit court. After granting an
evidentiary hearing, the circuit court issued a stay of
execution. Thereafter, the circuit court finding error vacated
Mr. Tompkins’ sentence of death and ordered a resentencing. The
circuit court denied those claims on which Mr. Tompkins sought a
new trial. Both parties appealed to this Court. In 2003, this
Court reversed the circuit court’s order vacating Mr. Tompkins
sentence of death and affirmed the portion of the order denying
Mr. Tompkins a new trial. Tompkins v. State, 872 So. 2d 230
(Fla. 2003).

On October 2, 2008, Governor Crist rescheduled Mr. Tompkins’
execution for October 28, 2008. On October 6, 2008, this Court
issued a stay of execution in a pending appeal that Mr. Tompkins
had before the Court; the stay ultimately expired on November 13,
2008. On October 15, 2008, Mr. Tompkins filed a Rule 3.851
motion in the circuit court. The circuit court summarily denied
the motion on October 21, 2008. Mr. Tompkins appealed to this
Court. On November 7, 2008, this Court affirmed the circuit
court’s denial of the Rule 3.851 motion. Tompkins v. State, –


So. 2d – (Fla. November 7, 2008).

On December 1, 2008, Mr. Tompkins filed a motion for DNA
testing in this Court. On December 15, 2008, after Mr. Tompkins
had filed this motion for DNA testing, Governor Crist ordered the
evidence in the State’s possession that Mr. Tompkins wished to
have tested, to be collected and sent off to FDLE so that DNA
testing could be conducted. On January 28, 2009, the State
served an additional notice of discovery which included reports
from the FBI and FDLE explaining that the DNA testing produced
inconclusive results. In explaining these results, the reports
revealed that there was considerably more biological material
bearing DNA than was previously known - this included hair that
had been found on clothing that was in the grave with the body
(in 2001 the State presented testimony that the hair found in the
grave was missing or destroyed).1 However, the techniques and
procedures used by the FBI and FDLE were unable to unlock the DNA
sequence and learn what information could be gleaned from the DNA

1The discovery revealed that the clothing had testedpositive for the presence of blood, a fact that was previouslyunknown. As Mr. Tompkins has explained in his amended motion forDNA testing that was filed in the circuit court, there are moresensitive and more sophisticated tests and procedures (albeitmore expensive) than the government funded testing done by theFBI and FDLE which have repeatedly been unable to unlock the DNAsequence that when government funded testing was used producedinconclusive results.

sequences that were present in the biological material.2

On February 2, 2009, Governor Crist rescheduled Mr.
Tompkins’ execution for February 11, 2009. On February 5, 2009,
Mr. Tompkins submitted an amended motion for DNA testing in
circuit court in light of the additional discovery provided by
the State. Also on February 5, 2009, Mr. Tompkins submitted a
Rule 3.851 motion to the circuit court.

Thus, there are two collateral actions currently pending in
the circuit court. Mr. Tompkins will certainly appeal any
adverse ruling in those actions. At this point in time, the
circuit court has not conducted a case management hearing, nor
indicated in any fashion when a ruling will be forthcoming.

This Court has consistently maintained an especially
vigilant control over capital cases, exercising a special scope
of review. Elledge v. State, 346 So. 2d 998, 1002 (Fla. 1977);
Wilson v. Wainwright, 474 So. 2d 1162, 1165 (Fla. 1985). This
Court has not hesitated in exercising its inherent jurisdiction
to review issues arising in the course of capital post-conviction

2The result of the DNA testing conducted by the FBI and FDLEwhich produced inconclusive results were disclosed on January
th

28 , less than 14 days ago. Normally in a criminal case when
DNA testing is conducted and the results are disclosed to the
defendant, he is granted time to process the information, consult
with experts, and obtain second opinions. Ake v. Oklahoma, 105

S. Ct. 1087 (1985). Given that, it is not unreasonable for Mr.
Tompkins or the circuit court or this Court to need to digest the
information and be prepared with the assistance of knowledgeable
experts to address the meaning of the DNA results and what
additional testing is warranted.


proceedings. State v. Lewis, 656 So. 2d 1248 (Fla. 1995). Here,
this Court’s appellate jurisdiction is threatened by the short
period of time between February 2nd when the Governor et the

execution and February 11th when the execution is now scheduled.3

As this is being submitted, only a little over 48 hours remain
before the execution is scheduled to take place.

This Court has the inherent power to exercise its
jurisdiction. The reasons set forth herein demonstrate that the
Court's exercise of its “all writs” jurisdiction to issue a stay
of execution in order to insure that Mr. Tompkins claim will be
judiciously considered and that he will have the opportunity to
appeal any adverse rulings issued by the circuit court.

In its jurisdiction to issue all writs, including writs of
habeas corpus, this Court has an obligation to protect
Petitioner's right under the Florida Constitution to be free from
cruel or unusual punishment and it has the power to enter orders
assuring that such protection is forthcoming. Allen v. State,
636 So. 2d 494, 497 (Fla. 1994)(holding that the Court was

3It has been a long time since a Florida governor scheduleda execution on such short notice as has been done here. Short
warrant periods generally ended when this Court adopted the oldRule 3.851 in the mid-1980's that provided filing time tableswhen the governor scheduled an execution more than sixty dayshence. Those filing time tables were abolished in 1993. At that
time, this Court explained in its Commentary to the Rule: “Theprovisions of the present rule 3.851 providing for time periodswhere a 60-day warrant is signed by the governor are abolishedbecause they are unnecessary if the guidelines are followed.”
Rule 3.851, Commentary re: 1993 Adoption.

required under Article I, § 17 of the Florida Constitution to
strike down the death penalty for persons under sixteen at time
of crime); Shue v. State, 397 So. 2d 910 (Fla. 1981)(holding that
this Court was required under Article I, § 17 of the Florida
Constitution to invalidate the death penalty for rape); Makemson

v. Martin County, 491 So. 2d 1109 (1986)(noting that “[t]he
courts have authority to do things that are essential to the
performance of their judicial functions. The unconstitutionality
of a statute may not be overlooked or excused”). This Court has
explained: “It is axiomatic that the courts must be independent
and must not be subject to the whim of either the executive or
legislative departments. The security of human rights and the
safety of free institutions require freedom of action on the part
of the court.” Rose v. Palm Beach City, 361 So. 2d 135, 137 n.7
(1978).

Due to the separation of powers provided by the Florida
Constitution, this Court is not obligated to permit the executive
branch to set the time parameters for considering the pending
collateral motions and/or any appeal arising therefrom.
Particularly given the adoption in 1996 of the continuous
warrant, Florida courts are clearly meant to have the power to
issue a temporary stay of execution to give itself the time
necessary to judiciously consider the collateral claims before
it. Courts have the power to govern their own dockets. The


amount of time that courts have to judiciously consider the
issues should be determined by the courts themselves, not by the
executive branch.

Additionally, this Court is required to protect Mr.
Tompkins’ Eighth and Fourteenth Amendment rights under the
federal Constitution. As he set forth in his motion for DNA
testing, he seeks to invoke his due process rights under the
federal constitution to conduct DNA testing on evidence in the
State’ possession. Se Osborne v. District Attorney’s Office, 521

th

F.3d 1118 (9 Cir. 2008), cert. granted, — U.S. — (November 3,
2008). Where constitutional rights - whether state or federal of
individuals are concerned, this Court may not abdicate its
responsibility in deference to the legislative or executive
branches of government. Instead, this Court is required to
exercise its independent power of judicial review. Ford v.
Wainwright, 477 U.S. 399 (1986). In order to perform that
function, this Court should enter a stay of Mr. Tompkins’
execution of sufficient duration as to permit adequate evaluation
and consideration of the newly disclosed discovery.

WHEREFORE, Mr. Tompkins respectfully requests that this
Court issue a stay of execution in order to permit judicious
consideration of the issues raised by his motions currently
pending in circuit court. Mr. Tompkins further asks for any and
all other relief which the Court deems just and proper.


I HEREBY CERTIFY that a true copy of the foregoing motion has

been furnished by U.S. Mail, postage prepaid, to Scott Browne,

Assistant Attorney General, Department of Legal Affairs, 3507

Frontage Road, Suite 200, Tampa, FL 33607 on February 9, 2009.

MARTIN J. McCLAIN
Florida Bar No. 0754773
Special Assistant CCRC-South
141 N.E. 30th Street
Wilton Manors, FL 33334

(305) 984-8344

NEAL DUPREE
CCRC-South
101 N.E. Third Avenue
Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Tompkins


Tompkins Asks Justices For Stay Of Execution


Tompkins Asks Justices For Stay Of Execution

Published: February 9, 2009


Wayne Tompkins

TALLAHASSEE - A death row inmate wants the Florida Supreme Court to stay his execution.

Wayne Tompkins was convicted of murdering 15-year-old Lisa DeCarr in 1983 in Tampa. He sought the delay today because he has appeals in other courts.

In one case, he has asked a state judge for more DNA testing. Gov. Charlie Crist had DNA tests done on the victim's bone fragments and other evidence before setting the execution for Wednesday. The results were inconclusive.

The state filed a response arguing the Supreme Court previously decided DNA testing would not exonerate Tompkins.

Tompkins first had been scheduled to die in 2001 and again last year, but appeals forced delays. He also has appeals in state and federal courts.

Sunday 8 February 2009

Motion for DNA testing - Wayne Tompkins


http://www.oranous.com/innocence/tompkins/Tompkins-CC-MotionForDNA12-1-08.pdf


IN THE CIRCUIT COURT OF THE
THIRTEENTH JUDICIAL CIRCUIT,
IN AND FOR HILLSBOROUGH
COUNTY, FLORIDA
CASE NO. 84-CF-010538
STATE OF FLORIDA,
Plaintiff,
v.
WAYNE TOMPKINS,
Defendant.
__________________________/
MOTION FOR DNA TESTING

Pursuant to Fla. R. Crim. P. 3.853, WAYNE TOMPKINS, Defendant in
the above-captioned action, respectfully requests this Court to order DNA testing
of biological evidence collected and maintained by law enforcement in connection
with the State’s prosecution of Mr. Tompkins in the above-entitled matter. Mr.
Tompkins has always maintained his innocence, and the requested DNA analysis
may provide the evidence that will exonerate him. The grounds for this motion are
more fully set forth below.
PROCEDURAL HISTORY
Mr. Tompkins was indicted for first-degree murder and pled not guilty.
Trial commenced September 16, 1983, and a jury found him guilty (R. 401).
Following a penalty phase, the jury recommended the death penalty, and the judge
immediately imposed a sentence of death (R. 678-81). The conviction and
sentence were affirmed. Tompkins v. State, 502 So. 2d 415 (Fla.), cert. denied,
483 U.S. 1033 (1987). After a death warrant was signed, a motion to vacate was

filed and an evidentiary hearing was conducted. Though this Court found trial
counsel’s performance was deficient, post-conviction relief was denied. The
Florida Supreme Court stayed the execution and later affirmed the denial of
collateral relief. Tompkins v. Dugger, 549 So. 2d 1370 (Fla. 1989). After a
second death warrant was signed, a federal habeas petition was filed, and the
federal district court stayed the execution. An amended petition was subsequently
filed, and denied. On appeal, the Eleventh Circuit affirmed. Tompkins v. Moore,
193 F.3d 1327 (11th Cir. 1999), cert. denied, 121 S.Ct. 149 (2000).
In March of 2001, a third death warrant was signed. Thereafter, Mr.
Tompkins filed a second motion to vacate in which he challenged his conviction
and sentence of death. This Court summarily denied guilt phase relief, but granted
an evidentiary hearing on Mr. Tompkins’ challenge to his death sentence. At the
conclusion of the hearing, this Court vacated Mr. Tompkins’ sentence of death and
granted a resentencing. Both parties appealed. The Florida Supreme Court
reversed this Court’s order granting a resentencing and affirmed the denial of guilt
phase relief. Tompkins v. State, 872 So. 2d 230 (Fla. 2003). In its on October 9,
2003, opinion, the Florida Supreme Court stated: “Based on the foregoing, we
affirm the trial court’s summary denials of Tompkins’ Brady claims and affirm the
trial court’s denial of Tompkins motion for DNA testing and motion to compel the
production of public records. However, we reverse the trial court’s order granting
a new penalty phase trial and reinstate the death sentence.”
While that appeal was pending, Mr. Tompkins filed another Rule 3.850
2


motion with this Court. This Court dismissed the motion finding that it lacked
jurisdiction during the pendency of the previous appeal. Mr. Tompkins appealed.
The Florida Supreme Court affirmed, but granted Mr. Tompkins “60 days to refile
his successive postconviction motion nunc pro tunc to February 5, 2003, the date
the prior motion was filed in the trial court.” Tompkins v. State, 894 So. 2d 857
(Fla. 2005). Thereafter, Mr. Tompkins refiled his 3.850 motion. This Court
denied the motion and Mr. Tompkins appealed to the Florida Supreme Court. On
May 10, 2007, the Florida Supreme Court issued an opinion affirming the of 3.850
relief. Mr. Tompkins filed a motion for rehearing which was denied on July 16,
2007. The mandate issued returning jurisdiction to this Court on August 2, 2007.
On August 16, 2007, Mr. Tompkins filed another motion to vacate.
Ultimately, this Court summarily denied the motion and Mr. Tompkins appealed.
While that appeal was pending, the Governor rescheduled Mr. Tompkins’
execution for October 28, 2008. The Florida Supreme Court issued a stay and
gave Mr. Tompkins until October 15, 2008, to file any additional motions seeking
collateral relief in this Court. Mr. Tompkins filed another motion to vacate which
this Court summarily denied on October 21, 2008. Mr. Tompkins appealed.
The Florida Supreme Court ordered expedited briefing in both pending
appeals. After Mr. Tompkins had submitted his reply briefs, the State disclosed a
new sworn statement from Kenneth Turco. See Attachment A. The disclosure
was made on October 30, 2008. Mr. Turco had gave the sworn statement to an
assistant state attorney on October 28, 2008.
3


th
After receiving the statement on October 30 , Mr. Tompkins filed a motion
to relinquish jurisdiction with the Florida Supreme Court on November 3, 2008.
Thereafter, the Florida Supreme Court issued an order on November 4, 2008,
denying the motion to relinquish. On November 7, 2008, the Florida Supreme
Court issued its opinion affirming the summary denial of Mr. Tompkins requests
for collateral relief. Tompkins v. State, — So. 2d — (Fla. November 7, 2008).
ARGUMENT I
Fla. R. Crim. P. 3.853 implements section 925.11, Florida Statutes, which
provides for postconviction DNA testing. See In Re Amendment to Florida Rules
of Criminal Procedure Creating Rule 3.853 (DNA Testing), 807 So. 2d 633 (Fla.
2001). This rule requires that the motion be made under oath and include:
(1) A statement of the facts relied upon in support of themotion, including a description of the physical evidencecontaining DNA to be tested and, if known, the presentlocation or last known location of the evidence and how it
originally was obtained (Fla. R. Crim. P. 3.853(b)(1));
(2) A statement that the evidence was not previously testedfor DNA, or a statement that the results of previous DNAtesting were inconclusive and that subsequent scientificdevelopments in DNA testing techniques likely would producea definitive result establishing that the movant is not the personwho committed the crime (Fla. R. Crim. P. 3.853(b)(2));
(3) A statement that the movant is innocent and how the
DNA testing requested by the motion will exonerate themovant of the crime for which the movant was sentenced, or a
statement how the DNA testing will mitigate the sentencereceived by the movant for that crime (Fla. R. Crim. P.
3.853(b)(3));
(4) A statement that identification of the movant is a
genuinely disputed issue in the case and why it is an issue or an
4


explanation of how the DNA evidence would either exoneratethe defendant or mitigate the sentence that the movant received(Fla. R. Crim. P. 3.853(b)(4));
(5) A statement of any other facts relevant to the motion(Fla. R. Crim. P. 3.853(b)(5));
(6) A certificate that a copy of the motion has been servedon the prosecuting authority (Fla. R. Crim. P. 3.853(b)(6)).
This motion will address each of the above requirements in turn.
A. Statement of Facts Relied on in the Motion, Description of the Evidence
to be Tested, and Last Known Location of the Evidence. (Fla. R. Crim. P.
3.853 (b)(1)).
1. Statement of Facts
On March 23, 1983, Lisa DeCarr and Kathy Stevens were expelled from
school after they were discovered smoking under a tree. Lisa and Kathy were in
special classes for emotional troubled students. Pot was found in Kathy’s purse.
Lisa was told that she could not return until she was accompanied by a parent.
On the afternoon of the next day, March 24, 1983, Lisa’s mother contacted
the police and filed a missing persons report. That police report is a two-page
report dated March 24, 1983 at 5:30 PM.1 The first page lists the complainant, the
date and the time of the incident being reported. The “Date Time Occurred”
showed “24 Mar 83 1330-1400". The report listed Barbara DeCarr as the
complainant/parent. On the first page of the report in the reconstruction section
was handwritten, “Mrs. DeCarr stated her daughter ran away from home for no
1It is clear from the police report that Mrs. DeCarr reported Lisa missing withina couple of hours after she was last seen getting into a car. It is also clear from the
police report that Mrs. DeCarr was aware of “some trouble in school.”
5


apparent reason.” The second page of the report listed Wendy Chancey as a
witness. The report then contained the following in the narrative section:
Compl. stated she last saw Lisa at the listed residence at the listedtime. Compl. stated that everything was fine at home and has had notrouble with Lisa running away or anything. Compl. stated that Lisawas having some trouble in school but nothing to cause her to
runaway. Compl. checked was Lisa’s friends and school forinformation as to where she might be with negative results. Compl.
stated that one of Lisa’s friends told her that Lisa asked about Beach
Place, but Compl. checked with Beach Place with negative results.
Compl. stated Lisa did not take any of her belongings and gave noindication of wanting to leave.
The report showed the “listed time” as 1:30-2:00 on March 24, 1983. The “listed
residence” was shown as 1225 E. Osborne St. According to the report, Mrs.
DeCarr last saw her daughter, Lisa, at 1:30-2:00 PM on March 24, 1983.2 The
report further indicated that a witness, Wendy Chancey, stated “she observed Lisa
get into the suspect vehicle at 12th St. And Oasborne and was last seen heading
north on 12th St.” The two-page police report indicated that Lisa was wearing
“blue jeans, maroon shirt, diamond ring, cross earrings.” Implicit in the report was
the fact that this was the attire Lisa was wearing at the time she was last seen by
the complainant, Barbara DeCarr, when she saw Lisa at 1:30-2:00 PM.
For over a year, Mrs. DeCarr maintained that Lisa had runaway. This was
documented by numerous police reports.3 Det. Gullo logged calls from Mrs.
2Since she was making representations to the police while filing a missingpersons report, presumably she subjected herself to prosecution if the police reportwas false. Kist v. State, 787 So. 2d 106 (Fla. 2nd DCA 2001).
3School records reveal that there was a March 24th phone call with Mrs. DeCarr“who called to inform that Lisa had left.” This was the day after Lisa had been
6


DeCarr reporting that others claimed to have sighted Lisa. But, Mrs. DeCarr did
not a name for any of the people she said had told her they had seen Lisa after her
disappearance. For example, the September 2, 1983 entry stated:
I received a phone call from Mrs. DeCarr who stated that she was toldby friends of Lisa that they had seen Lisa on East 7th Ave. at about46th St. Lisa was standing in the Jewel “T” parking lot speaking withtwo or three other w/f’s. The informants told Mrs. DeCarr that Lisa
might be living in a trailer park which is across the street. Mrs.
DeCarr told the informants that they should call the police the nexttime they see her. Mrs. DeCarr was advised that they didn’t want toget involved with the police.
The only name Mrs. DeCarr supplied Det. Gullo was when she indicated Kathy
Stevens had reported that Lisa had called from New York. Yet when providing
that information, Mrs. DeCarr misreported Kathy’s last name. She said Kathy’s
last name was Sample. As a result, Det. Gullo did not locate Kathy.
When she testified at trial, Mrs. DeCarr denied practicing witchcraft: “I am
a Catholic.” (Id.) In her deposition, Barbara said her daughter would be lying if
she had said that Barbara had engaged in sex acts with “little boys” (DeCarr depo.
at 65). At trial, Judge Coe refused to allow Mrs. DeCarr to be asked about her
sexual relationships with 12 and 13 year old boys (R. 235).4
expelled and told that she could not return until she brought a parent. The records
show that on March 25th, “mom says child ran away yesterday (24th). Thinkschild may be pregnant.” Records from the Missing Child Organization showedthat Barbara called on March 29, 1983, and reported Lisa as missing - “She maybe on drugs and she may be pregnant.” Mrs. DeCarr first mentioned a possiblepregnancy to Det. Gullo, the policeman looking for Lisa, on April 26 th.
4Det. Burke’s report of June 22, 1984, noted that “Jenice DeCarr who is, the
stepdaughter of Barbara DeCarr” stated, “that Barbara DeCarr was heavily intoWitchcraft and while living in New York, Barbara participated in witchcraft to a
7


In May of 1984 while she was voluntarily committed in a mental hospital,
Mrs. DeCarr contacted Donald Snell.5 He testified at trial that he met Mrs. DeCarr
in May, 1984 (R. 123-24). Snell headed a volunteer group that located missing
children, and employed the services of a psychic to do so (R. 124). A second
meeting occurred in early June of 1984, when Mrs. DeCarr assigned him power of
attorney to search for Lisa (R. 129). On or around June 6, 1984, Snell’s
organization conducted a search of Barbara’s former house (R. 130-31).6 Snell
recounted that “the house was raised in the front part” and when they looked under
it, “we could see a depression which we were sure was a grave.” When someone
reached under the house, “the earth gave way” and “saw the bones” (R. 132). The
great extent.” Jenice also said “that her brother Harold DeCarr, Jr. was seduced byBarbara when he was 12 yrs. old.” Det. Burke noted that “this was confirmed byHarold as we were on a three party telephone conversation at the time. He stated
that he was in fact, 12 yrs old when this took place.” Michelle Hayes, “the sisterto Lisa DeCarr and the daughter of Mrs. DeCarr,” made similar statements.
Michelle “stated she knew of one time that her mother had at least three or four
young boys in her bedroom locked up with her ranging from ages 12 to 14 yrs andthat she knew that there was sex acts going on and that one of the subjs that was inthe bedroom with her mother was Harold, Jr., her stepbrother. She stated that she
is certain that they were involved in some type of sex act with their mother. She
said it got so bad, that the 12 and 14 yrs old boys would get in a fight over whowas to have her mother’s affections.”
5In the period between March, 1982, to June, 1984, Mrs. DeCarr had three otherboyfriends besides Wayne Tompkins (R. 227). As to one, Gary Francis, shedenied that she moved out of the trailer park because Gary had harmed Lisa (Id.).
But Mrs. DeCarr did confirm that a man named Bob McElvin had propositionedLisa, saying he would do “certain things for her for sexual favors” (Id.).
Mrs. DeCarr found out in the spring of 1984 that Mr. Tompkins had sexwith another woman. However, in her testimony, she denied that she was angryover Mr. Tompkins’ affair with another woman (R. 237).
6Mrs. DeCarr and her family moved from that residence over a year before,
weeks after Lisa disappeared.
8


depression was “on the right hand side under the front part, the front section, what
was the porch” and was about “two to three feet under the house” (R. 133; 135).
The police were then contacted (R. 135).7 Snell did not know if Barbara knew
where the body was before he went there, but “just didn't believe that she was
telling me the whole truth” (R. 138; 40).
After the body was found, Mrs. DeCarr told the police that Wayne
Tompkins, her ex-boyfriend, was the last person to see Lisa alive on the morning
of March 24, 1983, the day she disappeared. Based upon Mrs. DeCarr’s claims
and the discovery of the body, Mr. Tompkins was indicted. In early 1985, Mrs.
DeCarr was deposed by Mr. Tompkins’ counsel. Immediately afterwards, the
prosecutor began looking for more evidence or another witness. He contacted
Kathy Stevens in March of 1985.8 At first she maintained that her statements to
7Tampa Police Department Sergeant Rademaker testified that Mrs. DeCarr told
him that she believed the body “was someplace on the property and possibly underthe house” (R. 170); even though this interview was conducted after the discoveryof the body, “we didn’t tell her during the interview. We didn’t tell her until after
we were sure what we had” (Id.).
The medical examiner identified the body as being Lisa based uponinformation received from Mrs. DeCarr. The trial prosecutor testified in 1989 that“[o]ther than Mrs. DeCarr’s description of the strange tooth in her daughter’smouth” there was no basis for the dental identification (PC-R. 233). There was no
way to determine how long the body had been in the grave, and that it is possible itcould have been as little as six or seven months prior to June, 1984 (R. 191).
8Benito first called Kathy Stevens on March 7, 1985. This was two days after
Barbara DeCarr’s March 5th deposition in which she indicated she went to Mr.
Tompkins’ mother’s house at “approximately 9:00 am.” (DeCarr depo. at 16). In
her undated statement, she further indicated that Mr. Tompkins had already arrivedat his mother’s house and “stayed at his mother’s house until approximately 10:00am when he left to get some newspapers to pack dishes with.” In her deposition,
she indicated Mr. Tompkins “could have been” gone “[t]wenty minutes, half an
9


school officials were true, that Lisa had runaway to New York and kept in touch
with Kathy. A couple of days after meeting the prosecutor, she re-contacted him.
After she was given authorization to visit a boyfriend who was incarcerated, she
changed her story and claimed witnessing Lisa being strangled by Mr. Tompkins
on the morning of March 24, 1983, at around 8:30 AM.9
Thereafter, Kenneth Turco surfaced, claiming that Mr. Tompkins had
confessed the murder.10 Mr. Turco’s testimony so aligned with Kathy Stevens’
hour.” (DeCarr depo. at 20). He subsequently left again with his stefather (DeCarr
depo. at 21).
9Kathy’s new version of the facts began with her sneaking into Lisa’s bedroomwindow at 6:30 AM on March 24 th. She and Lisa were planning to run away after
getting in trouble at school. In the early morning meeting, Kathy said that Lisasaid she was not running away after all. So Kathy left. When she noticed that she
left her purse and had to go back to get it. When she got there at around 8:30 AM,
the front door was open. She went in and saw Mr. Tompkins strangling Lisa. Lisa
called out for her to call the police. But instead, she went the nearby store and ran
into Lisa’s boyfriend, Junior Davis. When she told him what she had just seen, he
was unconcerned. So, Kathy went to school. At trial, Kathy said she went backlater to get her purse with her girlfriend, Kim Lisenby. It was then Kim who
knocked at the door, not Kathy, and may have spoken with Mr. Tompkins.
In her deposition, Kathy gave a different version. Then she said that Kim
Lisenby was with her when she saw Lisa being strangled. After Lisa told her to
call the police, she “grabbed [her] purse and [ ] left.” (Stevens depo. at 10) “I shut
the door. And I told Kim, I said, ‘Come on, Kim we got to call the police.’ She
said, ‘Don’t get involved.’ And I said, ‘Why?’ And she said, ‘Because you don’t
need to.’ And I said, ‘Okay.’ And I went to the store and that’s when I ran into
Junior.” In her deposition, Kathy indicated that she “grabbed her purse” when sheleft at 8:00 am. (Stevens depo at 10). She also indicated that after she talked to
Junior, “me and [Kim] went back to the school. I cleaned out my locker, and Iwent to my stepmother’s and sat on her porch until she got back. And then I met
Kim at school at 2:00 o’clock. And she cut class. And we went to go check on
Lisa” (Stevens depo. at 14). “It takes about twenty minutes to get from the school
to her house. It was about 2:20, 2:30, something like that”
10Kathy Stevens’ deposition occurred on June 12, 1985. Kenneth Turco’s
deposition occurred on July 15, 1985. At that time, he said that in late June, 1985,
10


story that defense counsel argued that the informant had obtained access to Ms.
Stevens’ deposition or statement and used it to mold his testimony.11
After Kathy Stevens report that she witnessed Mr. Tompkins’ strangling
Lisa at around 8:30 AM, Mrs. DeCarr was able to remember that contrary to her
earlier statements that she had left home before 8:30 AM, and Mr. Tompkins was
still there, as was Lisa. Previously, her recollection was that Mr. Tompkins left to
take one of her sons to school and wasn’t home when she left after 9:00 AM.12
he first talked to Wayne Tompkins about his case, and that about a week and a halfbefore the deposition, Mr. Tompkins confessed to him (Turco depo. at 8).
11Kenneth Turco while serving a 30 year prison sentence for burglary and grandtheft escaped (R. 301-02). While serving his time, Turco had been a confidential
informant in prison and received consideration (R. 317). After Turco entered a
guilty plea to a felony escape charge in “June, I think, or maybe the end of May”
(R. 315), he was placed in a two man cell with Mr. Tompkins. His placement in
jail cell with Mr. Tompkins occurred in June of 1985. He had just entered the
guilty plea on an escape charge (R. 303). He was waiting to be sentenced (R.
304). While in the jail, he made contact with Wayne Tompkins after he “wasplaced in the cell with him” (R. 305). After his contact with Mr. Tompkins, Turcopersonally contacted prosecutor Benito, who visited him and promised only “mysafety in the jail and that [he] would tell the judge at my sentencing hearing that Icooperated and I came forward and testified in a murder trial” (R. 311).
Turco testified that he was not hopeful that his testimony would help him onthe escape sentence because he would still be doing time anyway (R. 315).
However, it had crossed his mind that his testimony would help him (Id.).
In 1989, Mike Benito, Mr. Tompkins’ prosecuting attorney, testified that hetook over Turco’s prosecution two weeks after Wayne Tompkins’ sentence ofdeath. He explained, “I walked down to court. I was about to offer Mr. Turco a
negotiation. I got in here and I looked at Mr. Turco and I said, ‘This guy showed alot of guts coming forward as a jailhouse informant to testify as to what Mr.
Tompkins told him.’” (PC-R. 235). So, Benito “got up and walked down here andannounced the case, and said, ‘I nol-pros it.’” A grateful Turco “looked at[Benito] like he had just been handed his first bicycle at Christmas.” (PC-R. 236).
12Mrs. DeCarr’s shifting the time line of her account was necessary because herprevious story made Kathy’s story impossible (between 8:00 AM and 9:00 AM,
Barbara had said she was home and Mr. Tompkins wasn’t and that he did not
11


According to an undated typed statement of Mrs. DeCarr that was provided to the
police before Kathy Stevens claimed to have witness Mr. Tompkins strangling
Lisa, Mrs. DeCarr said, “Wayne had taken Jamie (my youngest son) to school just
before 8:00 am. and then went to his mother’s house for breakfast and coffee. He
stayed at his mother’s house until approximately 10:00 am. when he left to get
some newspapers to pack dishes with.”
At trial,13 Wendy Chancey was unavailable and defense counsel was
precluded from crossing Mrs. DeCarr regarding the statements attributed to her in
the March 24, 1983, police report.14 The State’s theory of the case was outlined in
its opening statement. According to the State, Mr. Tompkins and Mrs. DeCarr
were a couple in March of 1983. Mr. Tompkins was living with DeCarr, along
with her three children, including 15-year old Lisa (R. 107-08). On the morning
of March 24, 1983, Barbara went to Mr. Tompkins’ mother’s house to help her
return to the house until after 10:00 AM, while Kathy said before going to schoolat 8:30 AM or so she saw Mr. Tompkins was assaulting Lisa on the couch).
13Although it presented 8 witnesses at trial, the State advised the jury that “thekey testimony will come from three [] witnesses”--Barbara DeCarr (the victim'smother), Kathy Stevens (the victim’s best friend), and Kenneth Turco (thejailhouse snitch)--and that “[t]hose three will provide the overwhelming evidence”
that Mr. Tompkins killed Lisa DeCarr on the morning of March 24, 1983 (R. 108).
14The jury did not learn of the information provided Mrs. DeCarr and WendyChancey to a police officer regarding what they saw of Lisa on the afternoon ofMarch 24, 1983, which was inconsistent with the testimony of Kathy Stevens,
Barbara DeCarr, and Kenneth Turco. Nor did the jury learn of the information setforth in Lisa DeCarr’s school records and in police reports concerning Lisa DeCarras a missing person documenting statements by numerous people reportingsightings of contact with Lisa DeCarr after March 24, 1983, and throughout theremainder of that year.
12


move; before she left home between 8:30 and 9:00 AM, she checked in on Lisa,
who was in bed and wearing a pink bathrobe (R. 110). After Barbara left, Kathy
arrived between 8:30 and 9:00 AM and saw Mr. Tompkins strangling Lisa.15
During Mr. Tompkins’ trial, the prosecutor relied upon Stevens’ testimony
to urge the jury to convict Mr. Tompkins, arguing, “[h]er testimony alone . . .
convicts this man” (R. 346; see also R. 346-49, 360). The prosecutor relied upon
Stevens’ testimony to urge the jury to recommend a death sentence (R. 444-45).
Thereafter, the jury convicted and recommended a sentence of death. The trial
judge relied upon Stevens’ testimony to support the “committed during a felony”
aggravating circumstance (R. 679).
In the course of the collateral proceedings, withheld exculpatory evidence
has surfaced, along with witnesses and documents that were not presented by the
defense which demonstrated that Kathy’s story - the basis of the prosecution’s
theory of the case - could have been thoroughly impeached and shown to not be
true.16 For example in 2001, the State disclosed a June 8, 1984, police report
15At the 1989 hearing, the trial prosecutor, Mike Benito, confirmed that histheory was that the offense occurred on the morning of March 24th (PC-R. 87).
16In 1989, the State disclosed that it was in possession of Lisa DeCarr’s schoolrecords at the time of Mr. Tompkins’ trial. These records were not available to
defense counsel since he did not have a release for the records, and because the
trial prosecutor did not disclose the records. This records documented the
circumstances of Lisa DeCarr’s suspension on March 23, 1983, and the numerousstatements made by Barbara DeCarr and others to school officials reporting thatLisa had runaway because she was pregnant and that various students had eitherseen or had contact with Lisa in April and May of 1983.
13


concerning an interview of an individual named Maureen Sweeney taken on June
8, 1984, at 2130 hrs:
SWEENEY advised that it was very strange the explanation givensurrounding LISA'S disappearance. She advised that she was told thatLISA had come home, found Wayne sitting at the kitchen table withher mother and asked 'what the hell is he doing here!' Her mother,
BARBARA, explained that he had no place to go and that she wasgoing to let him move in with them, until he could get on his feet. Atthat point LISA ran out the back door. According to MAUREEN itwas very unusual for LISA to be outside without her makeup andsupposedly she had been outside then come back inside and then goneout again without her makeup. Lisa's brother BILLY left the house to
go find her and came back to take care of JAMIE.
The sequence of events that Sweeney reported is consistent with what Mrs. DeCarr
had told the police on March 24, 1983, and is inconsistent with the State’s theory
of the case, that murder occurred between 8:00 and 9:00 AM on March 24 th.
It was only in the post-conviction proceedings that Mr. Tompkins or his
counsel learned that the prosecutor had written file memos memorializing Kathy’s
statements to him when he first contacted and she changed her story. It was only
after receiving this memos that Mr. Tompkins learn that Kathy Stevens, a mentally
troubled teen, was given access to her incarcerated boyfriend that she had not been
allowed to see only after she changed her story and incriminated Mr. Tompkins.
In 1989, Mr. Tompkins presented the testimony of Gladys Staley regarding
her contact with Lisa DeCarr in the early afternoon of March 24, 1983, at Ms.
Staley’s residence (PC-R. 306-07). Gladys Staley testified that she saw Lisa in the
early afternoon of March 24, 1983, at around 2:30 PM and spoke to her (PC-R.
410-11). Even though Ms. Staley had advised a police officer in June of 1984 of
14


th
her visit with Lisa DeCarr at around 2:30 PM on March 24 , the trial prosecutordid not list her as a witness (PC-R. 414).
In 1989, Mr. Tompkins also introduced an affidavit from Jerry Behringer
into evidence in which he stated under oath that “Lisa is not dead. About three
months after Wayne’s trial I saw Lisa at a convenience store on the corner of 15th
and Hillsborough Street. I called out, ‘Lisa.’ She turned, looked directly at me,
froze, and then ran down an alley behind the store. I lost her but there is not a
question, whatsoever, that I personally saw Lisa DeCarr, alive.” (PC-R. 251; Def.
Ex. 16; PC-R. 568). See Attachment B.
Subsequnetly, Kathy Stevens’ testimony was contradicted by “Junior”
Davis, Lisa DeCarr’s boyfriend at the time of her disappearance when he was
located in 2002. After years of searching and after the State finally provided
previously undisclosed documents about Davis in 2001, Mr. Tompkins’ counsel
located “Junior” Davis in April of 2002. “Junior” Davis’s full name is James M.
Davis, Jr. Upon being contacted, Mr. Davis reported that he had been Lisa
DeCarr’s boyfriend in March of 1983. In a sworn affidavit, Mr. Davis stated,
“[t]he story of Kathy running into me at the store the day Lisa disappeared is not
true. If anyone had told me that Wayne was attacking Lisa and she was screaming
for someone to call the police, I would have gone directly there” (Affidavit of
James M. Davis, Jr., paragraph 6, 4PC-R. 130). Mr. Davis elaborated:
If I thought there was anyway I could have helped [Lisa], I wouldhave, especially if she were in trouble. This is why what Kathy said
is not true. I never saw Kathy on the morning that Lisa disappeared,
nor did Kathy ever tell me that she had just seen Lisa being attacked
15


by Wayne. In fact, the first time I heard of anything having possiblyhappened to Lisa was when I heard on the radio she was missing.
(Affidavit of James M. Davis, Jr., paragraph 8, 4PC-R. 130).
On October 30, 2008, the State disclosed a newly obtained sworn statement
from Kenneth Turco. In this statement, Mr. Turco explained that the prosecutor
instructed him to add the pocketbook to his testimony at Mr. Tompkins’ trial:
Well, Michael Bonito [sic] at the time of my - - prior to thetestimony, and naturally we met at the Hillsborough County jail, wentinto a little room and as I was telling him what happened he told me

- he said - - he told me, he said don’t forget the purse. She was buried
with a purse. Make sure you add that in your testimony, and I did.
(Turco Sworn Statement of October 28, 2008, at 5). Later, Mr. Turco explained:
Q And this thing about the purse in your deposition, yousaid that you mentioned a pocketbook or purse of something to that
effect.
A The victim was buried - -
Q Go ahead.
A That came from Mr. Bonito [sic].
(Turco Sworn Statement of October 28, 2008, at 6). According to Mr. Turco’s
sworn statement of October 28, 2008, at Mr. Benito’s instruction, Mr. Turco added
untrue details to his story.17
Mr. Turco testified at Mr. Tompkins’ trial in September of 1985. Over
twenty-three years later on October 30, 2008, the State disclosed a new sworn
17Certainly, Mr. Turco’s willingness to add untrue details to his testimonyexplains the prosecutor’s subsequent dismissal of charges that Mr. Turco hadalready pled guilty to.
16


statement from Mr. Turco indicating that part of his trial testimony was false and
that he testified falsely at the trial prosecutor’s instruction.
Mr. Turco thereupon testified that Mr. Tompkins confessed to strangling
Lisa DeCarr after she rebuffed his sexual advances (R. 309). According to Mr.
Turco, Mr. Tompkins indicated that he buried the body under the house.
Thereupon, Mr. Turco had the following exchange with Michael Benito, the
prosecuting attorney:
Q. Did he tell you he buried anything else under the house
of hers?
A. Yes. He said he buried some clothing to make it look
like she ran away.
Q. Anything else? Do you specifically recall the
pocketbook?
A. Yes, sir. It was a pair of jeans, a sweatshirt or a blouse, Ican’t remember exactly, but it was a top, and he did say a pocket
book for sure.
Q. Did he tell you where he had buried the pocketbook, thejeans and blouse?
A. No, he didn’t sir.
(R. 310)(emphasis added). During cross-examination, the following exchanged
occurred with Mr. Tompkins’ counsel:
Q. He told you that not only did he kill her but he gave youthe specifics about clothing and things of that nature that he alsoburied?
A. Yes, he did, sir.
17


Q. Those would be information, matters about clothing andmatters about details you would expect to find in police reports,
would you not, and depositions?
A. I have no idea, sir.
(R. 316).
In his closing argument, the prosecutor made the pocketbook an important
feature:
It was enough time for him to plan his coverup, not enough
time. He made mistakes, and the mistakes which have left a trail
directly to him. And one big mistake, listen to this, one big mistake,
he got rid of the pocketbook just like he told Turco he did.
Recall Barbara, when she searched Lisa’s belongings thatevening, did not find her pocketbook. We never have found the
pocketbook. But what was not missing? Her wallet. Her wallet.
Remember Barbara’s testimony. Her wallet was there but not her
pocketbook. In his haste, in his hurrying to cover up this crime, heforgot to put the wallet in the pocketbook.
He panicked after killing her, just like he told Turco he did,
and he grabbed the pocketbook, grabbed some clothes, buried them.
We don’t know where. He said he buried them, but thinking thewallet was in the pocketbook, he buried them but the wallet wasn’t inthe pocketbook.
No young girl is going to run away and take her pocketbookbut leave her wallet. And, besides that, as already mentioned, noyoung girl is going to run away in her bathrobe and her pajama top.
Use your common sense. She did not run away.
The defendant told Barbara DeCarr, “Jeans and a blouse and
her pocketbook, that’s what I saw her the last time wearing and
carrying.”
(R. 355-56)(emphasis added). Clearly, the prosecutor used the pocketbook as an
essential piece of evidence that pulled his case together and rebutted any
18


contention by the defense that Lisa DeCarr had in fact run away as Mrs. DeCarr
reported to the police on March 24, 1983.
Throughout the history of this case, Mr. Tompkins has maintained that he
did not commit the murder for which he stands convicted. He has always
maintained his innocence.
2. Description of the Evidence
Mr. Tompkins seeks DNA testing of the items found at the grave site,
including hair skeletal remains, robe, pajamas and miscellaneous debris. In 2001,
the State asserted that the hair collected from the grave site was lost.18 However at
that time counsel for the Defendant did in fact observed that the Tampa police
department had collected and retained a portion of a bone removed from the grave
site. Counsel also understood that the clothing found with the human remains at
the grave site were still available for testing. The robe, sash, and pajamas were
introduced into evidence at the time of trial and are in the possession of the clerk
of court (State’s Exh. Nos. 12, 13, 19).
3. Last Known Location of Evidence to be Tested
Counsel for Mr. Tompkins observed a portion of the bone removed from the
grave site in the Tampa Police Department’s possession in 2001. The record in
18According to a FBI Lab Report in Mr. Tompkins’ case, several hairsdiscovered with the human remains found at 1225 Osborne Street were forwarded
to the FBI for comparison. The report noted that the hairs “were suitable for
possible future comparison” (R. 31-34). It was these hairs that were reported lost
or misplaced in 2001. Certainly, if these hairs have since been located, Mr.
Tompkins would ask that they be submitted for DNA testing as well.
19


Mr. Tompkins’ case indicates that the robe, sash and pajamas found with the body
were admitted into evidence and placed in the custody of the clerk of court at the
time of Mr. Tompkins’ trial.
B. Statement that the Evidence was not Previously Tested for DNA (Fla. R.
Crim. P. 3.853(b)(2)).
Evidence was collected when the human remains were found in June of
1984. No DNA testing has ever been performed on any of the evidence collected
in this case. When DNA testing was requested by Mr. Tompkins in 2001 before
the adoption of Rule 3.853, this Court refused to permit it. This Court’s ruling
was affirmed on appeal. Tompkins v. State, 872 So. 2d 230 (Fla. 2003).19
C. Statement that the Movant is Innocent and Statement Explaining HowDNA Testing Would Exonerate the Movant. (Fla. R. Crim. P. 3.853(b)(3)).
19At the time of this Court’s action in 2001, the affidavit from Mr. Davis had not
been obtained, nor had Mr. Turco made a sworn statement that he was told to add
false details to his testimony by the prosecuting attorney. This new information
warrants revisiting this matter because it impeaches the State’s case at trial,
specifically the testimony of Kathy Stevens and Kenneth Turco. If the human
remains found at 1225 E. Osborne Street are not those of Lisa DeCarr, Mr.
Tompkins will be exonerated of her murder.
Moreover, there is considerable evidence known now, but not by the jury thatconvicted Mr. Tompkins, that Lisa DeCarr was alive after Kathy Stevens andKenneth Turco testified that she was dead. This evidence impeaching thetestimony that she was killed on the morning of March 24, 1983, would beconsistent with her not being the source of the human remains. This evidence
includes school records showing reports that Lisa was alive in April of 1983,
police records showing that Mrs. DeCarr advised the police throughout 1983 thatLisa had been seen alive in and around Tampa, Ms. Staley’s testimony in 1989 thatshe saw Lisa alive on the afternoon of March 24, 1983, the police reportconcerning Maureen Sweeney reporting that Mrs. DeCarr had told her that Lisawas last seen in the afternoon when she ran from the house while fighting with hermother about Mr. Tompkins moving in, and the sworn statement in 1989 fromJerry Behringer recounting his observation of Lisa DeCarr alive and well threemonths after Mr. Tompkins had been convicted and sentence to death.
20


1. Statement of Innocence
Mr. Tompkins pled not guilty and maintained his innocence throughout the
history of this case. He continues to maintain that he is innocent today. Because
Mr. Tompkins is innocent, he does not know whose remains were found under the
house at 1225 E. Osborne St. In Tampa, Florida, nor how those remains came to
be located there. Because Mr. Tompkins is innocent, he only knows that he did
not murder Lisa DeCarr and that he did not place human remains under the house.
2. Statement Explaining How DNA Testing Will Exonerate the Movant
Florida courts have interpreted the “how the DNA testing will exonerate”
language in Rule 3.853 to mean that testing will be granted if the results would
create a “reasonable probability that the [defendant] would have been acquitted”
had these results been available at trial. Knighten v. State, 829 So.2d 249 (Fla. 2d
DCA 2002); Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004). As Florida courts
have explained, “the purpose of the rule 3.853 is to provide defendants with a
means by which to challenge convictions when there is a ‘credible concern that an
injustice may have occurred and DNA testing may resolve the issue.’” Zollman,
820 So. 2d 1059, 1062 (quoting In re Amendment to Florida Rules of Criminal
Procedure Creating Rule 3.853 (DNA Testing), 807 So. 2d 633, 636 (Fla. 2001)
(Anstead, J., concurring)). Only when the DNA testing would “shed no light on
the defendant’s guilt or innocence” is such testing unwarranted by Fla. R. Crim. P.
3.853. Zollman, 820 So. 2d at 1063.
21


Here, evidence that the human remains are not those of Lisa DeCarr would
mean that the State’s charge that Mr. Tompkins murdered her and place her body
there on the morning of March 24, 1983, would certainly exonerate Mr. Tompkins.
DNA test results from the following evidence meets the “reasonable probability”
standard of Rule 3.853(b)(3) and would exonerate Wayne Tompkins as the person
who murdered Lisa DeCarr. Huffman v. State, 837 So. 2d 1147, 1148 (Fla. 2nd
DCA 2003).
D. Statement that Identification of the Movant is a Disputed Issue in theCase. (Fla. R. Crim. P. 3.853 (b)(4)).
The identity of the murdered is a genuinely disputed issue in this case. Mr.
Tompkins was arrested and charged with having been the perpetrator. Mr.
Tompkins has always contended that he is innocent of the crime and did not
commit the crime charged.
In 1989, Mr. Tompkins presented the testimony of Gladys Staley regarding
her contact with Lisa DeCarr in the early afternoon of March 24, 1983, at Ms.
Staley’s residence (PC-R. 306-07). Gladys Staley testified that she saw Lisa in the
early afternoon of March 24, 1983, at around 2:30 PM and spoke to her (PC-R.
410-11). Even though Ms. Staley had advised a police officer in June of 1984 of
th
her visit with Lisa DeCarr at around 2:30 PM on March 24 , the trial prosecutordid not list her as a witness (PC-R. 414).
In 1989, Mr. Tompkins also introduced an affidavit from Jerry Behringer
into evidence in which he stated under oath that “Lisa is not dead. About three
months after Wayne’s trial I saw Lisa at a convenience store on the corner of 15th
22


and Hillsborough Street. I called out, ‘Lisa.’ She turned, looked directly at me,
froze, and then ran down an alley behind the store. I lost her but there is not a
question, whatsoever, that I personally saw Lisa DeCarr, alive.” (PC-R. 251; Def.
Ex. 16; PC-R. 568).
At trial, the State relied upon circumstantial evidence that the human
remains were those of Lisa DeCarr as evidence identifying Mr. Tompkins as the
murderer. It was essential to the State’s case that the remains were those of Lisa
DeCarr in order to argue the identity of the killer as Mr. Tompkins. The purpose
of the “identification” requirement is to exclude movants who assert that they
performed the act in question but are, nevertheless, not culpable – such as those
who assert defenses like insanity, duress, or consent as a defense to rape. In such
cases, DNA testing would not show that the movant did not commit the act in
question because the movant asserts that he did commit the act. Crow v. State,
866 So. 2d 1257, 1260-61 (Fla. 1st DCA 2004)
E. Statement of Any Other Relevant Facts. (Fla. R. Crim. P. 3.853 (b)(5)).
Mr. Tompkins relies on the aforementioned statement of the facts pursuant
to Fla. R. Crim. P. 3.853(b)(1).
F. Certificate of Service of Motion on Prosecuting Attorney. (Fla. R. Crim.
P. 3.853 (b)(6)).
A certificate of service of the motion on the prosecuting authority is attached
to this motion.
ARGUMENT II
23


The due process clause of the Fourteenth Amendment guarantees that a
convicted criminal defendant is entitled to DNA testing of biological evidence in
the State’s possession when the results of the testing could exonerate the
defendant. Osborne v. District Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008),
cert. granted, — U.S. — (November 3, 2008).
Here, Mr. Tompkins has presented a sworn statement that was introduced
into evidence in 1989 that Lisa DeCarr was seen alive and well three months after
Mr. Tompkins had been convicted and sentence to death for her murder. This
statement in conjunction with the numerous reports that Lisa DeCarr was seen
alive after the State’s main witnesses had testified that she was dead requires that
Mr. Tompkins be given the opportunity to conduct DNA testing on all of the
biological material that was found at the grave site under the house at 1225 E.
Osborne Street in Tampa. Denying Mr. Tompkins access the biological evidence
which is in the State’s possession for DNA testing would violated the
constitutionally guaranteed right of due process.
GOOD CAUSE EXISTS TO ORDER THE DNA TESTING AT A PRIVATE LAB AT THE
DEFENDANT’S EXPENSE
Florida Rule of Criminal Procedure 3.853(c)(7) provides that “on showing
of good cause,” a court may order testing by a laboratory other than FDLE so long
as the other laboratory is certified by the American Society of Crime Laboratory
Directors or the National Forensic Science Training Center. “Good cause” is
established in this case because FDLE does not currently perform several types of
DNA testing that will be necessary to adequately examine the biological evidence
24


at issue, i.e., Y-Chromosome, miniSTR, and/or mitochondrial DNA testing.
Nevertheless, these types of DNA testing are admissible and widely used in
criminal cases, and certified laboratories such as Orchid Cellmark in Farmers
Branch, Texas, and MitoTyping Technologies in State College, Pennsylvania, do
perform such testing.20 Mr. Tompkins and his counsel agree to pay all costs for
this testing.
Accordingly, it is respectfully requested that when this Court grants the
Defendant’s Motion for DNA Testing, it find that “good cause” exists to order that
such testing be conducted by either Orchid Cellmark, in Farmers Branch, Texas, or
MitoTyping Technologies, in State College, Pennsylvania, certified laboratories
capable of performing such testing, at the expense of Mr. Tompkins or his counsel.
CONCLUSION
In sum, as Florida courts have noted, “the purpose of Rule 3.853 is to
provide defendants with a means by which to challenge convictions when there is
a ‘credible concern that an injustice may have occurred and DNA testing may
resolve the issue.’” Zollman v. State, 820 So. 2d 1059, 1062 (Fla. 2d DCA 2002)
(quoting In re Amendment to Florida Rules of Criminal Procedure Creating Rule
3.853 (DNA Testing), 807 So. 2d 633 (Fla. 2001) (Anstead, J., concurring)). In
this case, there is such a credible concern: this are numerous reports and sworn
testimony that Lisa DeCarr was seen alive after the State’s witnesses testified that
20Orchid Cellmark and Mitotyping Technologies are widely respected
national laboratories.
25


she was dead. This Court should grant this Motion for DNA testing, as favorable
results will demonstrate that Mr. Tompkins is innocent and may lead to the
apprehension of the true perpetrator.
WHEREFORE, Mr. Tompkins, through undersigned counsel, respectfully
requests this Court grant this Motion for DNA Testing and order DNA testing of
the requested items that would exonerate the Defendant, and order that “good
cause” exists for such testing to be performed at a private laboratory at the expense
of Defendant or his counsel, and order the State to produce the evidence identified
herein for DNA testing, and to conduct a thorough search for the above evidence
at the Tampa Police Department and at any other place where evidence is
customarily stored in Hillsborough County.
I HEREBY CERTIFY that a true copy of the foregoing Notice of Appeal
has been furnished by mail, to Jalal Harb, Assistant State Attorney, Office of the
State Attorney, 800 East Kennedy Blvd., 5th Floor, Tampa, FL 33602-4148; Robert
Landry, Assistant Attorney General, Department of Legal Affairs, 3507 Frontage
Road, Suite 200, Tampa, FL 33607 on December 1, 2008.
MARTIN McCLAIN
Special Assistant CCRC-SouthFlorida Bar No. 0754773
141 N.E. 30th Street
Wilton Manors, FL 33334
Tel: (305) 984-8344Fax: (954) 564-5412
NEAL DUPREE
CCRC-South
26


101 NE 3rd Ave., Suite 400
Fort Lauderdale, FL 33301
Tel: (954) 713-1284
SETH E. MILLER
Fla. Bar No. 0806471
DAVID MENSCHEL
Member of New York Bar
INNOCENCE PROJECT OF FLORIDA
1100 East Park Avenue
Tallahassee, Florida 32301
Tel: (850) 561-6769Fax: (850) 561-5077
Counsel for Mr. Tompkins
27