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CASE NOS. 86-8931A
86-15176A
STATE OF FLORIDA,
Plaintiff,
v.
RUDOLPH HOLTON,
Defendant
______________________/
OBJECTION TO PROPOSED ORDER AND MOTION FOR HEARING
COMES NOW THE DEFENDANT, RUDOLPH HOLTON, by and through undersigned counsel, and herein objects to the proposed order filed by the State, in open court on June 29, 2001, regarding the release of evidence held by the Clerk's Office. Mr. Holton through counsel, avers:
1. On June 29, 2001, this Court held a hearing on the State's Motion
to Continue Mr. Holton's evidentiary hearing. During argument Assistant
State Attorney Wayne Chalu, on behalf of the State, indicated that he wanted
to conduct DNA testing on several pieces of evidence which had been admitted
into evidence during Mr. Holton's capital trial in 1986. Mr. Holton, through
counsel, did not object to further DNA testing, but did object to the
release of the evidence prior to an order granting a new trial.
This Court denied the State's motion to continue but ruled that further
DNA testing could occur and requested an order.
2. The State has submitted a proposed order which fails to indicate the procedure that will be followed in order to fairly and properly submit the evidence for DNA testing. In fact, the State's order fails to even indicate that DNA testing will occur. The order calls for the Clerk of the Court to release several items of evidence to two named detectives from the Tampa Police Department.
3. In December, 1998, Mr. Holton filed a Motion to Inspect, Examine and Test Evidence. Mr. Holton specifically averred the items of evidence he wanted to test, the method of testing and the examiners's names. The State has failed to supply any of this information to the Court or Mr. Holton. At this point in time, Mr. Holton has no idea what method of DNA testing the State plans to employ on the items of evidence it has requested for release and who will conduct such testing.
4. At the August 10, 1999, hearing regarding Mr. Holton's motion for DNA testing the State objected to the testing and argued: "[I]t also puts the evidence in jeopardy. If it ever comes a (sic) point where Mr. Holton gains postconviction relief, either here or at the appellate level, and a new trial is ordered, it may put our evidence in jeopardy in the event we have to retry this man." Mr. Holton has similar concerns regarding the State's request for DNA testing. Mr. Holton's concerns are certainly exacerbated because the State has failed to provide any information regarding the testing it wants to conduct.
5. On December 6, 1999, this Court held a hearing and granted Mr. Holton's motion to conduct testing. At that hearing, this Court instructed counsel to prepare and submit an order regarding the testing.
6. On January 20, 2000, this Court held a status conference. Undersigned
filed three (3), proposed orders to facilitate the testing. Moments before
the hearing began, Assistant State Attorney Chalu informed undersigned
that he would be making an ore tenus motion for the Florida Department
of Law Enforcement (FDLE), to conduct the DNA testing in the case rather
than defense counsel's expert. The Court entertained the State's ore tenus
motion. The State again argued that it had an interest in the evidence
if there were ever a retrial.
7. This Court ruled that the State be allowed to send the evidence to FDLE so that FDLE could view the evidence and determine what testing was possible.
8. On January 27, 2000, undersigned counsel filed a Motion for Rehearing. In that motion, undesigned stated:
11. Undersigned respectfully requests that this Court reconsider this ruling. The State has made no different arguments than he made at the August 10th and December 6th hearings after which this Court granted Mr. Holton's motion to test the evidence. Furthermore, undersigned objects to crucial evidence being moved when there is no apparent reason to do so.
* * *
16. Mr. Holton requests that this Court rescind its January 20th
Order, reinstate its December 6th Order and allow Mr. Holton access to
the evidence for testing by his experts. In the alternative counsel requests
a hearing to determine why it is necessary to send the evidence to FDLE.
At that hearing Mr. Holton will be prepared to call qualified experts to
testify regarding the inherent risks of moving crucial, minute evidence
when there appears to be no good reason to do so. In addition, at this
hearing, should this Court
determine that FDLE be allowed to view the evidence, undersigned
will request that strict procedures be implemented so that Mr. Holton may
have a representative and/or expert present with the evidence upon any
transfers or any time the seal of the packaging is removed.
Mr. Holton's January 27, 2000, Motion for Reconsideration (emphasis added)(Footnotes omitted).
9. Following the January 20th hearing, a series of hearings occurred
concerning the proper procedures to follow for the testing. During those
hearings undersigned informed that Court that it was her understanding
that FDLE could not conduct mitochondrial DNA testing and that only a few
private labs and the Federal Bureau of Investigation (FBI), were qualified
to conduct such DNA testing. Also, undersigned argued against moving the
evidence gratuitously to FDLE when it was apparent that they would
be unable to perform the necessary testing. The parties also discussed
with the Court the amount of time the testing would take if it were sent
to the FBI. Undersigned informed the Court that her understanding was that
a backlog of cases existed at the FBI and that therefore the testing would
be delayed for some time.
10. The State argued that it did not want the evidence sent off for
examination without some assurance that the evidence could be tested.
Undersigned offered to arrange for her mitochondrial DNA expert
to travel to Florida, inspect the evidence and meet with Assistant State
Attorney Chalu. The Court directed the parties to arrange a
meeting to determine if a stipulation could be reached regarding the examiner.
11. Subsequently, on March 7, 2000, Dr. Terry Melton traveled to Tampa in order to examine the evidence and meet with Assistant State Attorney Chalu. After meeting with Dr. Melton, Assistant State Attorney Chalu stipulated to her conducting the testing.
12. In the following weeks, the Court signed orders directing the transfer of evidence. Those orders made clear that both parties were to be present when any of the directives were carried out, if the parties chose to be. Undersigned and ASA Chalu met on several occasions and invoked their right to be present when evidence was transferred from the Tampa Police Department and the Clerk's Office.
13. Undersigned immediately informed the State of the results of the tests as well as other pertinent information obtained from the examiners.
14. There is no reason why the evidence should be released to the Tampa Police Department. The Tampa Police Department does not have the qualifications to conduct any form of DNA testing. Moving the evidence places the evidence at risk for loss and further contamination, among other concerns. Moving the evidence to the Tampa Police Department serves no purpose and must be denied.
15. Additionally, before any of the evidence is transferred for testing, Mr. Holton must be provided with the opportunity to inspect and photograph the evidence.
16. Further, the testing procedures directed by this Court to date
have always included both parties. The State's proposed order indicates
no such opportunity for Mr. Holton's counsel to be present during crucial
points in the testing procedure. Mr. Holton has the same concerns the State
expressed over the last two years regarding testing of evidence and likewise
must be provided with input into testing procedures and must be allowed
to be
present when those procedures are carried out.
17. Despite defense counsel objections, this Court has always allowed the State to be included in the testing procedures and therefore Mr. Holton must now be involved in the testing that the State has requested.
18. Additionally, at the August 10, 1999, hearing regarding testing
the State objected to DNA testing and argued: "I don't know if the condition
of the evidence has degraded or what the condition of the evidence is."
Furthermore, at a hearing held on April 26, 2001, Assistant State
Attorney Chalu informed the Court that there were contamination issues
that needed to be addressed regarding further DNA testing. Contamination
is an issue. In fact, after consulting with a criminalist, Stuart James,
and a DNA expert, Dr. Terry Melton, both experts agree that much of the
evidence has been contaminated. The source of contamination appears to
be multi-faceted,
ranging from the initial collection and testing of evidence to the
manner in which the evidence has been maintained for the past several years.
In fact, Dr. Melton has indicated that she would refuse to conduct testing
on items of evidence in this case due to contamination problems. Before
any evidence is released undersigned requests a hearing to determine what
potential contamination issues are present and what those issues mean to
the results of DNA testing.
19. Finally, counsel objects to releasing the photographs currently
in evidence. The Tampa Police Department possesses the negatives and copies
of the photographs introduced at Mr. Holton's trial. There is absolutely
no need to remove these from the Clerk's Office since copies are available
to the State and Tampa Police Department.
WHEREFORE, Mr. Holton objects to the State's proposed order and requests that this Court hold a hearing on the aforementioned issues, or at the very least grant Mr. Holton ten (10) days from the date of any order entered transferring evidence so that Mr. Holton and an expert of his choice may view, photograph and inspect the evidence, prior to its release from the Clerk's Office, in order to determine what contamination issues may afflict the evidence and/or what contamination has occurred.
Respectfully submitted,
LINDA MCDERMOTT
Assistant CCC-NR
Florida Bar No. 0102857
I HEREBY CERTIFY that a true copy of the foregoing Proposed Order
and Motion
for Hearing has been furnished by facsimile transmission and United
States Mail, first class postage prepaid, to all counsel of record on July
2, 2001.
MARTIN J. McCLAIN
Florida Bar No. 0754773
Special Assistant CCC-NR
LINDA MCDERMOTT
Assistant CCC-NR
Florida Bar No. 0102857
1533 S. Monroe Street
Tallahassee, FL 32301
(850) 488-7200
Attorneys for Mr. Holton
Copies furnished to:
The Honorable Daniel L. Perry
Circuit Court Judge
Hillsborough County Courthouse Annex 122
800 E. Kennedy Blvd.
Tampa, Florida 33602
Wayne Chalu
Assistant State Attorney
Hillsborough County Courthouse
800 E. Kennedy Blvd., Fourth Floor
Tampa, FL 33602
Candance Sabella
Assistant Attorney General
Office of the Attorney General
2002 North Lois Avenue, Suite 700
Tampa, Florida 32118-3951
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