Cherrix v. True, CIV.A. 00-1377.
| Decision Date | 29 May 2002 |
| Docket Number | No. CIV.A. 00-1377.,CIV.A. 00-1377. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Brian Lee CHERRIX, Petitioner, v. William Page TRUE, Warden, Sussex I State Prison Respondent. |
Michele Jill Brace, Charlottesville, VA, Robert Lee Jenkins, Jr., Bynum & Jenkins, Alexandria, VA, for Petitioner.
Donald Richard Curry, Pamela Anne Rumpz, Esquire, Office of The Attorney General, Richmond, VA, for Respondent.
THIS MATTER comes before the Court on the implementation of the Petitioner's DNA testing plan in this habeas corpus proceeding.1 On March 18, 2002, the Court directed the parties to comply with the September 11, 2001, Order by this Court instructing the parties to jointly submit a single memorandum setting forth the terms of the DNA testing plan they agreed to and a separate memorandum identifying the issues that remained in contention by March 29, 2002. See Cherrix v. True, CA No. 00-1377, Order (E.D.Va. March 18, 2002). Implementation of the DNA testing plan had been delayed due to difficulties with ascertaining the appropriate biological evidence for testing. See id. See also Cherrix, 177 F.Supp.2d at 489-491. The parties complied with the March 18th Order and on March 29, 2002, submitted the two memoranda.
On April 18, 2002, the Court held a hearing on the issues identified by the parties remaining in contention. One of the most divisive issues was the laboratory that would perform the DNA testing. The Respondent vehemently opposed the Petitioner's selection of Forensic Science Associates, under the helm of Dr. Edward T. Blake, whereas the Petitioner did not approve the Respondent's choice—Virginia's Division of Forensic Science. At the hearing, the Court asked counsel for the Petitioner if they would be amenable to the alternative of Orchid Cellmark (formerly Cellmark Diagnostics) or another private laboratory conducting the testing. Counsel responded that they could not answer the question without first consulting with co-counsel Peter Neufeld. The Court instructed counsel to submit a supplemental memorandum addressing the issue. Shortly thereafter, the Petitioner submitted a filing explaining that Mr. Neufeld steadfastly believed that Forensic Science Associates was the only appropriate laboratory to perform the testing in this case.
After reviewing the submissions of the parties and hearing oral argument on the matter, the Court adopts the following DNA testing plan in this matter:
1. The biological evidence to be tested in this case shall consist of:
A. Three anal swabs that are in the custody of Samuel J. Cooper, Jr., in his capacity as Clerk of the Circuit Court of Accomack County. The swabs are marked as Commonwealth's Trial Exhibit 18;
B. Reference samples of botanical debris containing bloodstains of Ms. Van Hart's blood that are in the custody of the Clerk of the Circuit Court of Accomack County. The samples of botanical debris are labeled as Commonwealth's Trial Exhibits 16A & B;
C. Two anal slides that are in the physical custody of the Chincoteague Police Department. The slides are presently stored inside a manila envelope identified as Item # 30 and labeled "physical evidence recovery kit for victim." Within the manila envelope, the two anal slides are packaged in a single cardboard mailer marked "anal swabs," "T-40-94 Tess Van Hart," "LB", "TL 94-771-30," and "DAP;" and
D. Reference sample of biological material from Ms. Van Hart, the test tube containing residue of Ms. Van Hart's blood. The test tube is in the physical custody of the Chincoteague Police Department. It is presently stored inside a manila envelope identified as Item # 30 and labeled "physical evidence recovery kit for victim." Within the manila envelope, a test tube containing the blood reference sample is packaged, along with its stopper, in a plastic bag labeled "Tess Van Hart," "T-40-94," "1-28-94," "DAP," and "TKO."
2. The STR Testing shall be performed by Orchid Cellmark. Orchard Cellmark is a well-respected DNA laboratory that has performed DNA testing in several criminal cases before this Court.2 A neutral, third-party laboratory will assuage any concerns either party may have with the other's selection for lab testing. Orchard Cellmark is also located in nearby Germantown, MD, as opposed to Forensic Science Associates, which is located in Richmond, California.
3. The biological evidence to be tested shall be transmitted to the Orchard Cellmark laboratory for visual evaluation no later than 14 days after entry of this Order.
4. The Accomack County Circuit Court and the Chincoteague Police Department shall separately ship the evidence by Federal Express, Priority Overnight Service, in Federal Express boxes, and by no other means.
5. Each sending agency will charge the cost of shipment to the Virginia Capital Representation Resource Center. Upon sending the materials to Orchard Cellmark, the sending agency will promptly send a legible facsimile of the corresponding Federal Express Airbill to counsel for all parties:
A. Pamela A. Rumpz, counsel for the Warden;
B. Robert L. Jenkins, Jr., counsel for Mr. Cherrix; and
C. Michele J. Brace, counsel for Mr. Cherrix.3
6. The Accomack County Circuit Court and the Chincoteague Police Department shall review Orchid Cellmark's Guidelines for the Collection, Packaging, Storage, and Shipment of Evidence for DNA Tests attached to this Order as Appendix A, and available at http:// www.cellmark-labs.com/pdf/coll _proc.pdf. When preparing the evidence for shipment, the Accomack County Circuit Court and the Chincoteague Police Department shall comply with the Orchid Cellmark Guidelines to the fullest extent possible.
7. The Chincoteague Police Department shall take additional steps to protect the anal slides and the test tube with the victim's reference blood sample by:
A. Ensuring that the cardboard mailer remains securely closed in transit and use additional packing materials inside the box to cushion the evidence;
B. Taping the mailer closed or wrapping a rubber band around both dimensions of the mailer and then placing the mailer in a labeled envelope before encasing it in the shipping box; and
C. Placing the test tube containing the victim's reference sample, the purpose stopper and the piece of paper into a zipper-lock bag or labeled envelope.
8. The Clerk of the Accomack Court shall be responsible for ensuring that the anal swabs and the botanical debris samples are properly packaged and are accompanied by a transmittal letter identifying the evidence for chain of custody purposes.
9. Randy Mills, the evidence technician of the Chincoteague Police Department, shall be responsible for ensuring that the two anal slides and test tube contained the victim's blood sample are properly packaged and are accompanied by a transmittal letter identifying the evidence for chain of custody purposes. Petitioner's counsel has the option of being present as Mr. Mills packages the items or arranging for a third party to videotape the process.
10. As discussed above, the evidence shall be accompanied by a transmittal letter identifying the evidence in the box for chain of custody purposes. The letter shall also comport with Orchard Cellmark's Forensic Case Submission Letter Guidelines attached to this Order as Appendix B and available at http://www.cellmark-labs.com/pdf/CoverLetter2.pdf. Finally, the sending agencies will attach a copy of this Order to their respective transmittal letters.
11. The transmittal letter from the Chincoteague Police Department shall also reference the deposition of Edward Lewis, Chief of the Chincoteague Police Department, concerning the storage of the items in the custody of the Police Department. The Chincoteague Police Department shall include a copy of the deposition with the package and transmittal letter.
12. The evidence and accompanying transmittal letter shall be sent to:
Orchid Cellmark
Attn: Forensic Laboratory
20271 Goldenrod Lane, Ste. 101
Germantown, MD 20876
13. Upon receipt of the evidence, Orchid Cellmark will inventory the evidence and photograph the anal swabs and botanical debris. The laboratory shall take photomicrographs of the anal slides and a photograph of the test tube.
14. Orchid Cellmark shall immediately determine whether the quantity of biological material is sufficiently large to permit a division of the evidence. If Orchid Cellmark determines that the evidence can be divided, it will consult with Dr. Blake of Forensic Science Associates and Dr. Paul Ferrara of Virginia's Division of Forensic Science regarding the divisibility of the evidence and the best manner of splitting the evidence.
15. If Orchid Cellmark, Dr. Blake and Dr. Ferrara agree that the evidence is divisible, Orchid Cellmark will divide the evidence in the agreed-upon manner. Orchid Cellmark will then forward the residual share of the evidence to:
Richmond Laboratory
Division of Forensic Science
P.O. Box 999
Richmond, Va 23208-0999
After sending the residual evidence, Orchid Cellmark shall proceed with testing.
16. If the parties disagree, they will notify the Court and counsel immediately. The matter shall be submitted to the Court for resolution, the parties shall have an opportunity to respond, and no testing shall proceed until an Order is issued by the Court regarding the divisibility of the evidence and the best manner of dividing the evidence.
17. Within 14 days of entry of this Order, Cherrix's counsel shall send Orchid Cellmark copies of the Virginia Department of Forensic Sciences certificates of analysis dated July 21, 1994, and October 31, 1994. The July 21, 1994, certificate of analysis contains the results of the HLA Dqa test performed on the victim's blood.
18. The parties have represented that they have agreed to a medical...
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