Motion 64.035

28/12/2013 22:32

Former United States Attorney General John Ashcrofts description of DNA testing as "Nothing less than the "Truth Machine" of law inforcement, ensuring Justice by identifying the guilty and exonerating the innocent." Are you also a believer in the DNA evidence exonerating the innocent and identifying the guilty? 

11 - Chapter 64 Motion.pdf (1,6 MB)

IN THE 230th JUDICIAL DISTRICT COURT HARRIS COUNTY, TEXAS
Cause No. 616522-G
EX PARTE BRIAN DAVIS, APPLICANT
MOTION OF APPLICANT FOR TESTING OF UNIDENTIFIED DNA PROFILES PURSUANT TO ARTICLE 64.035 OF THE TEXAS CODE OF CRIMINAL PROCEDURE
BRAD D. LEVENSON (No. 24073411) Director, Office of Capital Writs (E-Mail : Brad.Levenson@ocw.texas. gov) 
JANET GILGER (No. 24079978) (E-Mail : Janet.Gilg er@ocw .texas. gov) 
KATE, SAUER PUMAREJO (No.2 4066027) (E-Mail : Kate. S au er@ocw .texas . gov)
 Post-Conviction Attorneys Office of Capital Writs 1700 N. Congress Ave., Suite 460 Austin, Texas 787I1 (s12) 463-8600 (sr2) 463-8s90 (fax)
Attorneys for Applicant
 
MOTION OF APPLICANT FOR TESTING OF UNIDENTIFIED DNA PROFILES PURSUANT TO ARTICLE 64.035 OF THE TEXAS CODE OF CRIMINAL PROCEDURE
Brian Davis ("Davis") has remained on death row for over twenty years for a crime he denies committing. During the investigation leading to the filing of Davis's most recent writ of habeas corpus in state court, the Office of Capital Writs ("OCW") came into possession of exculpatory DNA testing results performed before Davis's 2}ll punishment-only retrial. This testing included blood samples from the victim's jeans and three hairs found in the victim's hand. The results of these tests are startling. The blood found on the victim's jeans was consistent with a mixture of DNA from two or more sources-the victim being one likely source, and the second source unidentified. Remarkably, this unidentified DNA profile was discovered at the exact location that the crime scene officer marked as being where DNA evidence from the suspect would be found. The three hairs found in the victim's hand came from two sources, both of which remain unidentified. Davis was excluded from being a source of the DNA found in both the blood and
the hairs. These results call into question the veracity of the underlying guilty verdict and deserve the Court's attention. Despite the DNA evidence pointing to an as-of- yet unidentified person being the true assailant, no effort to determine the source of the unidentified DNA has occurred. Davis requests an order from the Court directing the State to submit the DNA results to the state and federal DNA databases in an attempt to match the unidentified DNA profile to a known source. Davis recognizes that the requested relief does not fit precisely within the structures of Article 64 of the Texas Code of Criminal Procedure, but requests that the Court grantthe order or set the motion for hearing on the merits in the interests of justice. In support of this request, Davis will show that the exculpatory,
unidentified DNA profiles meet the submission requirements for the federal databases-which would allow possible matches to be found-and that the requested order does not necessitate any new testing of the physical evidence, requires minimal use of resources, and furthers the State's legitimate interest in
ensuring the finality of its convictions.
I.
PROCEDURAL HISTORY Brian Davis is confined under a sentence of death pursuant to the judgment of the 230th District Court, Harris County, Texas, Cause No. 616522, which was rendered and entered on March g,20ll. (CR at 569-73;30 RR at 3-8.)t
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lgg2 Capital Trial and Subsequent Post-Conviction Proceedings Davis was convicted of capital murder on June ll, t992, and sentenced to death on June 16, !992, in the 230th District Court of Harris County, Texas, in Cause No. 616522. (Supp. CR at 2.) The conviction and sentence were affirmed on direct appeal on January 7, 1998, published in part in Davis v. State, 961 S.W.2d 156 (Tex. Crim. App. 1998). Davis filed an original state writ of habeas corpus on July 28, IggT (Cause No. 616522-A). The Texas Court of Criminal Appeals ("CCA") denied relief in Ex parte Davis, No. WR-40,339-01 (Tex. Crim.
App. Mar. 10, 1999) (unPublished). Subsequently, Davis filed three more state habeas petitions which were all dismissed for failing to satisff the requirements for a subsequent writ under Tex. Code Crim. Proc. Art37.071, $ 5 , Ex parte Davis,No. WR-40,339-02 (Tex. Crim' App. Sept. 13, 2000) (unpublished); No. WR-40,339-03 (Tex. Crim. App.April
I All references to 6(RR" are to the Reporter's Record. All references to "CR" are to the Clerk's Record. All references to the "Supp, CR" are to the Supplemental Clerk's Record. All references to the record are to Davis's 2011 punishment-only retrial' 2
29,2002) (unpublished); and No. wR-40,339-04 (Tex. Crim. App. }l4ay 7,2002)
(unpublished). A Death Warrant was issued against Davis on July 3,2002, setting Davis's
execution date for August 13,2002. (CR at 45-46,49-50.) On August" 7,2002, Davis filed a fourth subsequent application raising a mental retardation claim under Atkins v. Virginia, 536 U.S. 304 (2002), which the CCA found satisf,red the requirements for a subsequent writ under Tex. Code Crim. Proc. Art37.071, $ 5, and remanded the issue to the trial court, Ex parte Davís, No. WR-40,339-05 (Tex. Crim. App.Aug. 9,2002) (not designated for publication). As a result of the remand, Davis's execution was stayed. An evidentiary hearing was held in the trial court from November 1 to November 8,2004. On July 25,2005, the trial court recommended to the CCA
that relief on Davis's Atkins claim be denied. Following the evidentiary hearing, but before the CCA's determination on the Atkíns claim, on May 6, 2005, Davis filed a fifth subsequent application, alleging a jury nullification claim under Penry v. Johnson (Penry II),532 U.S' 782 (2001). On March 29,2006, the CCA determined that the Penry 11 nullification claim raised in Davis's fîfth subsequent application met the requirements of Tex. Code Crim. Proc. ArT 37 ,071, $ 5. Simultaneously, the CCA found that Davis was not legally mentally retarded and denied him relief under Atkins. Ex parte Davis, No. WR-40,339-06 (Tex. Crim. App.Mar. 29,2006) (unpublished). On November 18, 2009, the CCA subsequently determined that because of changes in the law, Davis's fifth subsequent petition should be dismissed. At the same time, the CCA found that the same claim, which was previously raised in Davis's second subsequent petition and dismissed (cause no. WR-40,339-03), should be reconsidered. Ultimately, the CCA remanded the case for a new
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punishment hearing-'Ex parte Davís, No. AP-76,263 (Tex. Crim. App. Nov. 18,
2009) (unpublished). (See also S.rpp, CR at 2,)
B. 2011 Trial Court Proceedings On March 25, 2010, R.P. "Skip" Cornelius and Allen Tanner were appointed
as counsel for Davis. (CR at 53-54.) Voir dire commenced on January 20, 2011 and ended on February 8, 2011. (See 3 RR; 15 RR.) Opening statements were heard on February I,20tI. (17 RR at20-56.) The State rested its case on March 2,2011, (24 RR at 90.) The defense case started immediately thereafter (id. at 106) and rested on March 7,2011. (27 RR at 1 80.) The State presented rebuttal witnesses the same day. (Id. af 181.) The case was submitted to the jury for punishment determination on March 8, 2011. (28 RR at 108.) After more than a day of deliberations, the jury returned a verdict on March 9,2011, answering "Yes" to special issue one, "Yes" to special issue
two, and 
(rNo" to special issue number three. (30 RR at 3.) Davis was then
sentenced to death. (Id, at 7 ,)
C. State Post-Conviction Proceedings On March 27, 2OIl, the court appointed Allen Isbell to represent Davis in
his direct appeal (CR 630). Davis filed his opening appellate brief on February 28,2012. The State filed their response on June 26, 2012. Oral argument on the appeal was heard on November 16,2012. The matter is still pending before the CCA. The OCW filed Davis's initial application for writ of habeas corpus pursuant
to the 20Il punishment-only retrial on November 6, 2012.
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II.
STATEMENT OF FACTS
A. The 1992 Trial On August 13, lggl, Michael Foster ("Foster") was found dead in his apartment by his neighbor. (17 RR aT 143.) Foster had multiple stab wounds to his body and abrasions to his face. A swastika and the letters "NSSH" had been drawn on Foster's abdomen and written on the apartment wall with a pen. (Id. at 82-85, 162.) The autopsy revealed that Foster received f,rfteen sharp force injuries (22 RR at 27 -28), and death had occurred at least a day prior to when the body was found. (Id. at 26) Over the course of the next several months, Davis and Tina McDonald ("McDonald"), who were in a romantic relationship, became suspects in the
Foster's murder. (18 RR at95.) Detective Charles Smith, lead investigator, concentrated his efforts on Foster's activities immediately prior to his death. Officers discovered several flyers in Foster's jacket advertising concerts at local bars. (17 RR aT 172.) One of the flyers was for a concert on August 10, at the Pik 'n Pak bar. (Id. at 177-79.) Ralph Ullrich, the owner of the Pik 'n Pak, recalled seeing Foster leave the bar with a male with a swastika tattoo and a skinny red-haired female in a Camaro or Firebird. (Id. aT 179-84.) An informant at the jail told Smith that McDonald was a redhead who drov e a Camaro and associated with a white supremacy otganization. (Id. at 185-87.) Smith returned to Ullrich, who was then able to identifu Davis and McDonald as the individuals that Foster left his bar with on the night in question.
(Id. at 193-98, 200-01.) McDonald's Camaro had been picked up from police impound by her acquaintance Matt Marquis, and Marquis provided Smith with the contents of the car, which included a black leather jacket, a buck knife with a broken tip, and a
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cassette tape. ( 17 RR at 202, 206-10,) Foster's neighbor identified the leather
jacket as belonging to Foster. (Id. at 146-47.) Smith visited Davis twice in jail, first to get. a photograph of him and then for a hair sample. (17 RR at 190,203.) Smith visited McDonald a number of times-for a photograph, twice to get a handwriting sample, and for a blood sample. (Id. at 204-05, 212.) Each time Smith discussed the case with her. (Id, at
2t2.)
Deputies at the jail facilitated contact between Davis and McDonald- allowing them to write letters and even speak on the phone. (18 RR at 79-80.) On October 31,1991, Smith visited McDonald and revealed that the investigation had discovered several pieces of physical evidence that directly implicated her in Foster's murder: the handwriting on the wall matched McDonald's handwritiîE; a hair found on Foster's shirt matched McDonald's known hair; and Foster's identified property was found to have come from McDonald's car. (Id. at 79-82, 91.) Smith also revealed to McDonald that there was no physical evidence that connected Davis to the crime. (Id. at79.) On November 19,1991, Davis reached out to a law enforcement contact he had at the jail and asked to be put in touch with Smith. When Smith came to see him, Davis revealed that he was willing to make a statement regarding the Foster murder in exchange for fulI immunity forMcDonald. ( 18 RR at 82-83.) Smith spoke with someone in the district attorney's office but was unable to secure a guarantee of immunity for McDonald, and relayed this to Davis. Smith shredded all of his notes from his November 19 conversation with Davis. (Id at35-36,84-
8s.)
On November 21, lggl,Davis reached out to Smith again and agreed to make a statement. After receiving magistrate warnings, Davis provided a full confession to the murder of Foster. (17 RR at 216-22.) Davis told detectives that
he stabbed Foster, and then forced McDonald to write on Foster's wall. Davis insisted rhat anything McDonald did was done under duress. (18 RR at 92-93.) This confession was filled with errors and inaccuracies, including the date of the murder, the number of knives used, and the writings on the wall. (17 RR at 53-54.) Davis was convicted of capital murder on June II, 1992, and sentenced to death on June 16, lgg2, in the 230th District Court of Harris County, Texas, in Cause No. 616522. (Supp. CR at 2.) McDonald was never prosecuted for the Foster murder. (18 RR at 85.) In sum, Davis was convicted almost exclusively based on his confession, which he later recanted.2 No physical evidence tied Davis to the crime scene. No eyewitnesses reported seeing Davis at or near Foster's apartment. No witnesses testified about any animosity between Davis and Foster-or that they had even met before the night they were seen leaving the bar
together. B. New DNA Testing Performed Prior to the 20ll Punishment-Only Retrial DNA testing was performed on the physical evidence from the homicide scene after the State and defense counsel agreed to split the costs prior to the new punishment hearing. The initial testing was performed by the Harris County Institute of Forensic Sciences. (Ex. 1 flaboratory ReportNo. CL91-057651] at 1.) Short tandem repeat ("STR") DNA testing was performed on blood from Foster's
2 The body of knowledge regarding false confessions has greatly expanded in the twenty-plus years since Davis's ÍiãI. A significant amount of empirical research now points to false confessions as being one of the leading causes of wrongful convictions, including in capital murder cases. See,7,g' Gisli H. Gudjonsson, False Confessions and Coruecting Injustices,46 New Eng. L. Rev. egg QO\Z); Richard A. Leo et. al., Bringing Reliability Back in: False Confessiáns and Legal Safeguards in the Twenty-First Century,2006 Wis' L. Rev. 479 (2006); Samuel R. Gross et. al., Exonerations in the (lnited States 1989 Through 2003,95 J. Crim.L, &' Criminology 523 (2005); Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the post-DNA ll/orld,82 N.C. L. Rev. 891 (2004); Welsh S. White, Confessions in Capital Cases,2003 U.Ill. L. Rev. 979 (2003).
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blue jeans, known saliva samples from Brian Davis, Tina McDonald, and Patty Kupritz (Foster's sister), and pieces of gauze containing blood found in Foster's apartment. (Id.) The gauze, unfortunately, did not contain sufficient DNA to be
tested. (Id. at2.) STR DNA testing was successfully performed on blood that was detected on Foster's blue jeans in three separate locations, labeled 7A-2,78-1, and 7C-1. (Id) In two locations, 7A-2 andTC-I, the blood came from a single donor and Foster could not be excluded as its source. (Id) Davis and McDonald were excluded as possible sources. (Id.) The chances of a random Caucasian being a match for the DNA were 1 in 1 ,669,000,000,000 in the first location and 1 in 80,640 in the second. (1d..) The results for these two tests were unremarkable, as both were
likely matches for Foster. It is the third sample, 7B-I, that casts serious doubt on Davis's guilt. In this location the blood was consistent with a mixture of DNA from two or more individuals. (Id.) Not surprisingly, Foster could not be excluded as a contributor, with a I ln 4,919 chance that a random Caucasian would have a matching DNA profile. (Id.) Again, Davis and McDonald were excluded as being a source of the DNA recovered from this location. (Id,) For whatever reason, while the saliva of Davis and McDonald was submitted to CODIS, the unknown mixed blood sample was not. (Id. at Q No determination has ever been made regarding the unknown contributor(s) whose DNA was part of this mixture. The three hairs that were found in Foster's hand were forwarded to Orchid Cellmark by the Harris County Institute of Forensic Sciences for further testing. (Ex. 1 flaboratory Report No. CLII-0576S ll at 4) The hairs were compared using mitochondrial DNA analysis to hair samples from both Davis and McDonald. (8x.2 [Laboratory Report No. Ml0-0031] at 1.) This form of DNA is maternally inherited. (Id) Two of the hairs come from one source (or someone
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maternally related), the third from a second individual. (Id. at 3.) None of the three hairs are a match for Davis or McDonald. (Id, at 2.) Both sources for the hair remain unidentified, although it was never tested against Foster or a maternal
relative of his.
III. JUSTICE DEMANDS SUBMISSION OF'THE UNIDENTIFIED DNA PROFILES TO THE STATE AND FEDERAL DATABASES FOR COMPARISON
A. The Unidentified DNA ProfÏles are Exculpatory The unidentified DNA profiles were found mixed with the victim's blood on his blue jeans and come from hairs in his hand. (Ex. 1 flaboratory Report No. CL}I-0576S1 at 2l; Ex. 2 lLaboratory Report No. M10-00311 at 1.) The most logical explanation for its presence (given that McDonald is excludable) is that someone other than Davis was present when Foster was killed-and that this unidentified person killed Foster.3 These unidentifîed DNA profiles have never been submitted to the state and federal databases for comparison, despite their
exculpatory nature. 1. Testing Revealed an Unidentifïed DNA Profile Mixed With Foster's Blood in a Location that the State's Crime Scene Officer Testified was Likely to Contain the Assailant's DNA
The testing performed on blood from Foster's blue jeans revealed a mixture of DNA from two or more individuals. (E*. 1 flaboratory Report No. CL91- 05765 ll at 2.) Foster could not be excluded as a possible contributor. (/d ) Davis' however, was excluded as being a source of the DNA. (Id.) Remarkably, this
Because the hair and blood were subjected to different types of DNA testing, it is not possible to determine based on current data whether the donor for one of the hair samples also was the donor for the unidentihed contributor to the mixed DNA blood sample.
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DNA sample was taken from a location that was identified as being a likely source of the assailant's DNA by the investigating officers. (17 RR at ll7.) During the 20ll punishment-only retrial, the State called Crime Scene Officer Gail Mills. (Id. at 58, 60.) She was dispatched to Foster's apartment in 1991 to process the homicide scene. (Id. at 62.) She described taking blood samples from multiple locations in the apartment, processing the scene for latent prints, photographing the scene, and recovering various types of evidence. (Id. af. 70-101.) V/hen discussing the blood samples, Offlrcer Mills explained to the jury the difference between a passive blood drop and blood spatter. (Id. at 86-87.) She described how a passive drop is made when "when a person is just dripping either from the hand or from an item." (Id. at 86.) In contrast, blood spatter "actually has a force behind it. There is an impact to it." (Id. at 87.) This explanation proved
critical later in her testimony. Officer Mills also examined the jeans that Foster was wearing for evidence that the suspect may have left. (Id. at 115.) Most of the blood appeared to have come from the victim, but there was one spot that drew Mills's attention as potentially being left by the suspect, as she explained during the State's direct
examination: Q. Can you show us where you malked a spot on the jeans? A. I remember I had one particr¡lar stain pickecl out that looked like a 9O-degree drop. That's probably the one I clid. Q. Okay. Where there's been a cutting made? A. Yes. Q. Okay. And you circled and mark[ed] it with a "8"? A. No, I didn't do that. Q, You didn't do that. Okay. And what are all of these other circles from? A. These are bloodstains thalare notecl on there. I don't know if I did that or if the lab did that, but I know I marked the one I was particularly interested in. ,k*<* ***
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A. It look[ed] like a passive drop, which was what I talked about earlier, like a 9O-degree drop maybe frorn a 90-degree angle, which coulcl have been.from someone bleeding over him or dropping from another item. a. Okay. So, frorn your observations and your experience ancl training and looking aT" the jeans, was that the only spot where you thought there might be a possible Dl''lA profile.from a suspect? A. Ríght, yes. (Id. at 116-17) (emphasis added). DNA testing was not performed on the jeans prior to the original 1992 trial. Qd. at 1 15.) The blue jeans were finally examined for DNA evidence by the Harris County Institute of Forensic Sciences prior to the punishment-only retrial. (Ex. 1 flaboratory Report No. CL91-057651] at 1.) The lab took three cuttings from the blue jeans where blood was observed for DNA comparison, labeled 7A-2,7B.1, and 7C-1. (Id. at 2) This explains why the blood drop in question was marked with a "8" as described by Officer Mills at the re-trial-the lab simply marked where the cutting was taken from. (17 RR at 116) (noting that the blood drop presumptively from the suspect was marked with a "8"). Cutting "8" was the sample identified by the lab as having DNA from multiple individuals-none of whom was Davis or McDonald. (Ex. 1 flaboratory Report No. CL91-0576S1] at
2.)
Officer Mills's testimony, combined with the DNA testing results, strongly indicates that someone other than Davis killed Foster. She identihed a blood drop on the victim's jeans that likely came from the suspect, "either from someone bleeding over him or dropping from another item." (17 RR at Il7.) Later DNA testing revealed an unidentified donor in that exact location. (Ex. 1 flaboratory Report No. CL91-057651] at 1.) That person was not Brian Davis-the man who has spent over twenty years on death row for this crime. The exculpatory nature of
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this evidence should compel the court to submit the unidentified DNA profile for
comparlson 2. Testing Revealed Two Unidentified DNA ProfÏles from the Hairs Found in Foster's Hand In addition to the blood samples, DNA testing was performed by Orchid Cellmark on the three hairs found in Foster's hand. (F;x.2 flaboratory Report No. Ml0-0031] at 1.) Two of the hairs appear to come fromthe same source. (Id. at 3.) Davis and McDonald were excluded as being contributors, and both sources remain unidentified. (Id. at2.) During the 2011 punishment-only retrial the State attempted to explain away the presence of the hairs in Foster's hand. (17 RR at lI0-1 1; 26 RR af 52.) The prosecutor suggested that these hairs could have come from the carpet, nearby pillows, or the EMS workers. (17 RR aÍ" II0-11; 26 RR at 52.) More likely, these hairs could have been left by Foster's actual assailant and thus these unknown hairs
should also be submitted to the applicable state and federal databases. B. Article 64 Requires Sending Unidentified DNA Samples to the State and Federal Databases for ComParison
Article 64 of the Texas Code of Criminal Procedure governs post-conviction requests for DNA testing. When an unidentified DNA profile is discovered during testing under this article-if the sample meets the DPS or FBI submission requirements-the court is legally required to submit that prohle for comparison. Tex. Code Crim. Pro. art. 64.035 (2011). The article states, in part, that: If an analyzed sample meets the applicable requirements of state or f-ederal sr-rbmission policies, on coûrpletion of the testing under Article 64.03, the convicting court shall order any unidentified DNA profile to be compared with the DNA profiles in:
(1) the DNA database established by the Federal Bureau of lnvestigation; and
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(2) the DNA database maintained by the Department of Public Safety under Subchapter G, Chapter 411, Government Code.
Id. Because the unidentified DNA profiles meet the FBI submission guidelines, Section C, infra, the only hurdle to Davis taking advantage of the requirement of this provision is that the testing was initially performed at the agreement of the parties, not by a court order under Article 64. In light of the highly exculpatory nature of the DNA evidence, Davis requests that this order be granted despite falling outside of the procedures contemplated by Article 64.035. C. The Unidentified DNA Profiles Meet the FBI's Submission Guidelines
Both the unidentified blood and hair samples meet the submission guidelines for searching in the Combined DNA Index System ("CODIS"), and its National
DNA Index System ("NDIS"). There are several requirements for STR DN A data to be submitted to CODIS. These include that the lab conducting the testing be accredited, that the lab maintain compliance with the FBI Quality Assurance Standards, and that the evidence in question be of suitable quality for submission. Frequently Asked Questions (FAQs) on the CODIS Program and the l{atíonal DNA Index System, available at htç://www.fbi.gov/about-us/1ab/biometric-analysis/codis/codis-and- ndis-fact-sheet (last visited March 21,2013). To be suitable for submission, "all 13 CODIS Core Loci must be attempted fduring the DNA testing] but at least 10 CODIS Core Loci must have generated results for submission to and searching at NDIS fNational DNA Index System]. The thirteen Core Loci are locations CSFlPO, FGA, THOl, TPOX, V'WA, D3S1358, D55818, D7S82O, D8SII79, D135317, D16S539, D18S51, and D21S1l. Id. If the submission meets these guidelines, the comparison is performed at moderate stringency to allow "searching forensic profiles from crime scene evidence that contains DNA from
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more than one individual (a forensic mixture)." Id. Thus, the fact that a test result contains DNA from multiple donors does not prohibit it from being searched in the
federal database. Mitochondrial DNA can also be searched in CODIS. Id. To meet the submission standards, testing must be done at "[h]ypervariable region I ("HV1"; positions 16024-16365) and hypervariable region II ("HV2"; positions 73-340)." Id. This form of DNA is searched only in the missing person-related indexes. 1d The blood sample in question was tested by the Harris County Institute of Forensic Sciences, which is an accredited laboratory that maintains compliance with the FBI Quality Assurance Standards. Críme Laboratory Service: Crime Laboratory Services, avaílable at http://www.co.harris.tx.us/ifs/clscrimelaboratoryservice.aspx (last visited March 21, 2Ol3). The testing performed on the sample in question, 7-B 1, was done at all thirteen Core Loci and returned eleven results. (Ex. 1 [Laboratory Report No. CLgl-0576S11 af 4.) Thus, the sample can be searched through the CODIS database for potential matches, regardless of the fact that more than one person contributed to the DNA. Additionally, DNA analyses from this laboratory report-Brian Davis's and Tina McDonald's-have already been submitted to CODIS; the unidentified sample, however, has not. (/d ) The three hairs found in Foster's hand were tested by Orchid Cellmark, which is an accredited lab that meets the FBI's Quality Assurance Standards. Forensic DNA, available at https ;//www.orchídcellmark.com/þrensicdna/experttestimony.html (last visited March 2I,2Ol3). All three were tested at the required HVI and HVII regions, thus the hairs meet the submission guidelines as well. (Ex. 2 flaboratory Report No. M10-00311 at 3.) While the hairs can only be searched through the more limited
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missing person's databases, Davis requests that these results be submitted for
comparison as well. D. The Balance of Equities Weighs in Favor of Submitting the llnidentified DNA Profiles for Comparison The highly exculpatory nature of the evidence, Section A, supra, weighs heavily in favor of Davis's request. Standing alone, it provides a basis for the requested order. However, to address other potential concerns that may be raised by either this Court or the State, Davis offers the following supporting rationales. 1. Because No Additional Physical Testing of the Evidence is Required, the Cost and Resources Required are Limited One of the major differences between Davis's request and the standard Article 64 motion is that the DNA evidence in question has already been tested. Davis requests no new additional testing, simply that the unidentified DNA profiles be submitted to the relevant state and federal databases for comparison. This process merely involves the laboratories that have already completed the testing-the Harris County Institute of Forensic Sciences and Orchid Cellmark- forwarding the results to the Department of Public Services ("DPS") for searching in the state database, and DPS in turn forwarding the results on to CODIS for
searching in the federal database. This process involves both marginal manpower costs and extremely few resources. Essentially, the entirety of the request involves the labs either mailing or emailing their results to DPS, and DPS doing the same to forward the results to CODIS. Such a simple request would not pose a substantial burden on resources or noticeably contribute to the current backlog of DNA testing-because no new
DNA testing is requested, simply a database search.
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2. Comparing the Unidentified DNA Profiles Now Supports the State's Legitimate fnterest in the Finality of Convictions
The State has a legitimate interest in ensuring the finality of its convictions. Ex parte Goodman, 816 S.W.2d 383,387 (Tex. Crim. App. 1991) (Clinton, J., concurring). Far from harming this interest, the requested order will in fact further it. Davis is currently in the beginning stages of his state post-conviction review process following his 2011 punishment-only retrial. Once this stage is complete, he will proceed into his federal post-conviction review. By granting the motion now, this Court will prevent possible disruptions for similar requests at alater date, as this issue is unlikely to evaporate. This in turn will help to ensure the State's
interest in finality by preventing subsequent counsel from making the same request in a future forum-anear certainty if this motion is denied-which would have the
potential to stall the appeals process in the future.
E. Conclusion and Prayer for Relief Davis has established that the unidentified DNA prof,rles provide strongly exculpatory evidence that requires further action. Comparison of the unidentified DNA profiles can potentially identifu the actual perpetrator of the murder of Michael Foster. In the interests of justice, this Court should grant the following requests: l) submission of the DNA results from the blood sample containing unidentified DNA (7-81) from the victim's jeans to the state and federal databases
for comparison; 2) submission of the DNA results from the three hairs found in the victim's hand to the state and federal databases for comparison; 3) submission of the known profile of Foster's DNA to the state and federal database as needed for comparison purposes to the unknown sample (78-1) that is a mixture of DNA
found in Foster's blood; and 4) disclosure of the results to Davis's counsel and the State so that a hearing may be conducted pursuant to Article 64.04, Texas Code of
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Criminal Procedure. In the alternative, Davis asks this Court to set a hearing on
the motion.
Respectfully submitted,
DATED: April 12,2012 By: ¡ Kate S Post-ConV1 Attorney