From the stay petition in Wayne Tompkins :
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 tested positive for the presence of blood, a fact that was previously unknown. As Mr. Tompkins has explained in his amended motion for DNA testing that was filed in the circuit court, there are more sensitive and more sophisticated tests and procedures (albeit more expensive) than the government funded testing done by the FBI and FDLE which have repeatedly been unable to unlock the DNA sequence that when government funded testing was used produced inconclusive 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
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.