Cherrix v. True, CIV.A. 00-1377-AM.
| Decision Date | 17 December 2001 |
| Docket Number | No. CIV.A. 00-1377-AM.,CIV.A. 00-1377-AM. |
| Citation | 177 F.Supp.2d 485 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Brian Lee CHERRIX Petitioner, v. William Page TRUE, Warden, Sussex I State Prison,<SMALL><SUP>1</SUP></SMALL> Respondent. |
Robert Lee Jenkins, Bynum & Jenkins, Alexandria, VA, Michele Jill Brace, Charlottesville, VA, for Petitioner.
Pamela Anne Rumpz, Office of the Attorney General, Richmond, VA, for Respondent.
The instant matter arises out of the Court's attempt to implement its January 9, 2001, Order authorizing DNA testing in this capital habeas petition proceeding. See Cherrix v. Taylor, No. 00-1377, Order (E.D.Va. Jan. 9, 2001). On September 10 2001, the Court directed the Assistant Attorney General to provide an inventory of any biological evidence or evidence that may contain biological evidence to the Petitioner for the purpose of identifying the appropriate evidence for DNA testing. See Cherrix v. Taylor, No. 00-1377, Order (E.D.Va. Sept. 10, 2001). The Assistant Attorney General provided Petitioner with an inventory of evidence and the present motion concerns Petitioner's attempts to seek answers to several questions concerning the evidence contained in the inventory list submitted by the Assistant Attorney General.
Specifically, Petitioner has filed a Motion for Subpoena Duces Tecum to the custodian of records of the Chincoteague Police Department seeking to compel the production of copies of all documents in the custodian's possession, custody or control that refer or relate to any of the items contained in an inventory list of evidence in the custody of the Chincoteague Police Department submitted by Respondent's counsel to Petitioner on September 11, 2001. The purpose of the motion is to identify the appropriate evidence in the possession of the Chincoteague Police Department for DNA testing.
For the reasons discussed below, the Court denies Petitioner's Motion for Subpoena Duces Tecum. Petitioner's discovery request is overly broad and burden-some and therefore fails to satisfy the "good cause" standard set forth in Rule 6 of the Rules Governing § 2254 Cases. However, the Court finds that the DNA testing ordered by this Court on January 9, 2001, cannot proceed until the preliminary step of identifying the appropriate evidence for testing is completed. Accordingly, in the interests of justice and judicial economy, the Court sua sponte grants the Petitioner leave to depose the Chief of the Chincoteague Police Department concerning the items in the September 11th inventory list.
The Petitioner cannot evaluate the appropriate evidence for DNA testing until Respondent answers the questions concerning the items in the Chincoteague Police Department inventory list. Based on the presentations of counsel at oral argument on November 9, 2001, the Court finds that Edward Luis, the current Chief of Police for Chincoteague and a former officer who participated in the investigation of Ms. Tessa Van Hart's murder, could provide the answers to the questions posed by Petitioner concerning the evidence in the custody of the Police Department. Deposing Chief Luis will ensure that the DNA testing proceeds quickly to the next stage, preventing further delay in an already long stalled process. Moreover, the deposition is appropriate to effectuate and prevent the frustration of this Court's Order instructing agents of the Commonwealth to provide Petitioner access to biological evidence in the possession of the Commonwealth for DNA testing and the Court's Order seeking to implement the procedures for such testing.
In 1997, habeas petitioner Brian Lee Cherrix was convicted of the 1994 murder and sodomy of Tessa Van Hart. The harrowing facts of the case are set forth in Cherrix v. Commonwealth, 257 Va. 292, 513 S.E.2d 642 (1999). In connection with his federal petition for writ of habeas corpus, and pursuant to 21 U.S.C. § 848(q), Petitioner filed a motion for DNA retesting of the seminal fluid collected from Ms. Van Hart's anus in the investigation of her murder. The DNA test results of the seminal fluid conducted in 1994 had proven inconclusive and therefore could not ascertain the identity of the assailant who murdered and sodomized Ms. Van Hart. In his motion for retesting of the DNA, Cherrix argued that technology had evolved to enable a conclusive determination of the origin of the seminal fluid. Thus, retesting of DNA could support Cherrix's claims of actual innocence and he argued that the testing was reasonably necessary to support his habeas petition.
This Court agreed. On January 9, 2001, the Court granted Petitioner's Motion for the Retention and Preservation of Evidence and Motion for DNA Testing. See Cherrix v. Taylor, No. 00-1377, Order (E.D.Va. Jan. 9, 2001) ("January 9th Order"); Cherrix v. Braxton, 131 F.Supp.2d 756 (E.D.Va.2000) (), aff'd sub nom. Cherrix v. Braxton, 258 F.3d 250 (4th Cir.2000). In that Order, this Court directed Pamela A. Rumpz, in her capacity as the Assistant Attorney General, Jan. 9th Order at 8-9. The Order further directed the Attorney General and Samuel Cooper, Jr., in his capacity as the Clerk of the Court for the Accomack County Circuit Court, "to make available to Petitioner any bodily fluids or swabs seized from Tessa Van Hart, or the Petitioner, for testing as directed by the Court." Id. at 8. On July 9, 2001, the United States Court of Appeals for the Fourth Circuit affirmed the Court's January 9th Order in Cherrix v. Braxton, 258 F.3d 250 (4th Cir.2001).
The Court conducted a teleconference with the parties on September 4, 2001, to solicit input on how to implement the January 9th Order. The Court requested information from the parties concerning, inter alia, what evidence should be tested, the method of preserving evidence for chain of custody purposes during the testing process, the type of DNA analysis to be utilized, the schedule for the DNA testing, and the laboratory that will administer the tests. (Tr. of Sept. 4, 2001 Teleconference) ("Sept. 4th Tr.") The teleconference focused on identifying the evidence available for testing. Peter Neufeld, counsel for the Petitioner and head of the Innocence Project at Benjamin Cardozo School of Law, contended, and this Court agreed, that as a preliminary matter, the biological evidence and evidence that may contain biological evidence needed to be identified before any further steps could be taken. (Id. at 12-13, 17). Mr. Neufeld explained that an inventory of the evidence would assist in the identification of evidence that could have seminal fluid and other relevant biological evidence that was not subject to DNA testing in the past, such as collected articles of clothing. (Id. at 3-7). An inventory of the available evidence would also reveal items that could be used to compare to the anal swab. Based on the September 4th teleconference, the Court issued an Order on September 10, 2001, directing that on or before September 11, 2001, the Assistant Attorney General, provide counsel for the Petitioner with an inventory of all the biological evidence, and any evidence that may contain biological evidence, in the custody or control of the Commonwealth of Virginia and the Clerk of the Court for the Accomack County Circuit Court pertaining to the murder of Tessa Van Hart. See Cherrix v. Taylor, No. 00-1377, Order (E.D.Va. Sept. 10, 2001) ("September 10th Order").2
The Assistant Attorney General provided Petitioner with two lists of evidence, one from the Clerk of the Accomack County Circuit Court and one from the Chincoteague Police Department on September 11, 2001. (Pet.'s Mem. in Supp. of Mot. for Subpoena Duces Tecum Ex. 1: Letter from Assistant Attorney General to Counsel for Petitioner of 9/11/01). On September 13, 2001, counsel for Petitioner responded to the lists maintaining that the descriptions on the list were inadequate to determine whether the information was relevant to DNA testing. (Pet.'s Mem. in Supp. of Mot. for Subpoena Duces Tecum Ex. 2: Letter from Counsel for Petitioner to Assistant Attorney General of 9/13/01).
The September 13th Letter raised numerous questions seeking to clarify several entries on the lists. (Id.) For example, the Letter noted that item # 55 in the Chincoteague Police Department list submitted by the Assistant Attorney General is identified simply as "blood, saliva, and hair." (Id. at 2). The September 13th Letter requested the Assistant Attorney General to identify whose blood, saliva and hair was collected at the crime scene. (Id.) Other questions raised by the Letter addressed items that may contain biological material. For instance, item # 32 is identified as "two white socks, blue cotton shirt (long sleeve), blue cotton T-Shirt (Georgetown Hoyas), bra, blue apron, envelope with hair." Petitioner asked the Assistant Attorney General to answer whether such clothing was removed from Ms. Van Hart's body. (Id. at 4). In a two sentence response, the Assistant Attorney General indicated that she could not answer any questions concerning the inventory lists because neither she, nor her office, worked on the Van Hart case. (Pet.'s Mem. in Supp. of Mot. Subpoena Duces Tecum Ex. 3: Letter from Assistant Attorney General to Counsel for Petitioner of 9/14/01).
On September 20, 2001, Petitioner...
To continue reading
Request your trial
-
Cherrix v. True, CIV.A. 00-1377.
...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 On April 18, 2002, the Court held a hearin......