From the DNA motion filed in Wayne Tompkins wrongful conviction case

From the DNA motion filed in Wayne Tompkins wrongful conviction case :

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



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

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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.

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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

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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