APPENDIX: 	DNA Testing Capabilities and Methodology

The DNA testing methodology that Petitioner seeks to employ for each of the items to be tested has a proven track record of success in other cases.   This Appendix provides additional information as to each one, and includes discussion of the method’s viability in light of what is known about the condition of each item of evidence from the trial record.

A.  	The victim’s vaginal, oral, and rectal swabs
The DPS chemist who examined these swabs taken from the victim at autopsy testified that he/she did not detect spermatozoa on the swabs. However, it is still possible that the victim could have been raped and murdered by an unknown intruder, and that traces of that perpetrator’s semen are still detectable on the swabs through advanced STR-DNA testing, which could fully exonerate Petitioner by excluding him as the source and pointing to another male. Since prior DNA test results on the semen stain in this case have revealed that the chemist’s microscopic examination of that evidence was at best, incompetent, and at worst, the basis for perjured c testimony on his/her part, there exists real reason to test the validity of the chemist’s representations by subjecting these swabs to STR-DNA testing.
A recent DNA exoneration provides a powerful example of STR-DNA’s extraordinary capabilities in this regard.   In ____, a New York court convicted a man for the rape of a woman that occurred on a building’s rooftop. The victim’s eyewitness identification, which occurred on the street several days after the incident, led to his conviction. The man maintained his innocence, and filed a pro se post-conviction motion, seeking DNA testing of the evidence in the rape kit.  At his trial, however, a police lab technician had testified that vaginal, oral, and anal swabs taken from the victim had tested negative for sperm.  The District Attorney relied on that testimony to successfully oppose the accused’s DNA testing motion, reasoning that the tests were pointless as there would be no semen from the perpetrator to test.  But in early ____, unknown to the accused, the swabs from the case were sent to a private DNA laboratory with whom the City had contracted to test all rape kits in its possession, as part of a “backlog project” to solve open cases through the DNA database.  Despite the police chemist’s “negative” test for sperm in _____, the DNA lab was able to obtain a full STR-DNA profile from spermatozoa detected on the vaginal swabs in the accused’s case.  When entered into the databank, the profile was found not to be the accused’s, and produced a “hit” on a convicted serial rapist, resulting in the accused’s exoneration and release from prison.  
It is also worth noting that Forensic Science Associates (the laboratory which successfully conducted the court-ordered DNA testing in this case in 2000, and which petitioner seeks to have test the remainder of the evidence) has a track record of recovering DNA profiles from spermatozoa where state, federal, and private laboratories failed to even detect its presence on evidence. These include, among others, the case of Bobby Dean Kiser of Houston, in which the Harris County Medical Examiner’s office had failed to detect any spermatozoa on the victim’s rape kit items (including vaginal swabs) at the time of the original crime in 1990.  When the medical examiner received the rape kit in 2003, the original cotton swabs were missing, and the only evidence that remained were two broken swab sticks.  Despite these facts, the medical examiner was able to detect and extract traces of spermatozoa from the distal ends of both sticks, which yielded a conclusive DNA profile that could be successfully compared to Mr. Kiser’s own, and, indeed, confirmed Mr. Kiser’s guilt.  See id. at _ 28-30.
	Clearly, then, the proven ability of advanced DNA technology to obtain profiles from even old and degraded “rape kit” items  – both to apprehend the guilty, and exonerate the innocent – makes such testing possible on the swabs collected at autopsy, and preserved by the Court, in this case.
B.	Hairs in the victim’s hand
	Two methods of highly discriminating DNA testing, unavailable at the time of trial, can also be conducted on the three hairs that crime scene personnel found entwined in the victim’s right hand, to determine whether or not they belong to a third-party intruder.  At Petitioner’s trial -- when existing technology permitted nothing more than comparative visual analysis under a microscope – the state presented expert testimony that one of those hairs was consistent in appearance with a pubic hair sample submitted by him (while the others were deemed consistent with the couple’s known hairs).  Along with DPS’ testimony now-discredited claims about the undiluted semen stain in the couple’s bed, this hair testimony provided crucial support to the state’s “sexual rage/masturbation” theory.  Current DNA technology, however, is infinitely more discriminating, objective, and scientific than the microscopic method of hair analysis that was available in _____, in two respects.
First, STR-DNA testing can now be conducted on any root (skin cells) that may be attached to those hairs, which is often the case when hairs are forcibly removed during a violent incident.  The STR profile obtained can not only be used to definitively include or exclude Mr. Morton’s effectively-unique DNA profile, but can be compared to any other unidentified profiles obtained from the crime scene, and can also be entered into CODIS.   Second, even if these hairs do not contain roots, mitochondrial DNA testing can be performed on the “shaft” of all of the hairs.  While mitochondrial profiles are not compatible with CODIS, such testing has conclusively exonerated a number of innocent persons in post-conviction proceedings around the country over the last five years. 
		1.	STR DNA testing on hair roots
	Because just a few skin cells (or even a single cell) are needed to obtain an STR DNA result, hairs containing “roots” attached can routinely be typed.   In one recent such case, STR-DNA testing was performed on the root of a hair found in one of two discarded ski masks from a brutal robbery-murder of two victims, committed by three unknown perpetrators in south Florida in May 2003.  Although the case went unsolved for many months, the profile from the hair root was entered into the databank, and in June, it identified one of the actual perpetrators, whose DNA sample had just been entered into the state databank as a suspect in an unrelated incident.  See “DNA Brings Arrest in Double Slaying,” Miami Herald, Jun. 29, 2004.
	The recent exoneration of Stephen Avery of Wisconsin also makes clear the exculpatory potential of DNA testing on the hair root(s) in petitioner’s case.   Seventeen years ago, Avery was convicted of a brutal rape and assault that occurred in July 1985 on a beach near Lake Michigan, after the victim picked his photograph out of an array and identified him in a live line-up.  In identifying Avery as her assailant at trial, she testified that during the attack, she told herself, “I have to stay calm and get a good look at this guy,” and that she remained so certain that Avery was the rapist that his face “is like a photograph in my mind.”   In 2003, however, post-conviction STR-DNA testing on a portion of the root of a foreign pubic hair recovered from the crime scene (one of thirteen hairs collected there) proved that she had been tragically mistaken.  Those tests conclusively excluded Avery as the source of the pubic hair, and resulted in a decisive “hit” in the state’s DNA databank – matching the DNA from the hair to the profile of another Wisconsin inmate, Gregory Allen.  Allen had been arrested, and then released, in connection with a 1983 sexual assault occurring on the same beach where the rape in Avery’s case had occurred.  Yet police had overlooked Allen as a suspect in the 1985 case, and he had gone on to commit at least one other rape while Avery, an innocent man, was imprisoned for his crime.  Avery was finally exonerated and freed in September 2003, after seventeen years in prison for the rape that DNA testing on the hair evidence had proved he did not commit. 
2.	Mitochondrial DNA testing on hair strands
Mitochondrial DNA (mtDNA) testing, also unavailable at the time of the Petitioner’s trial, can extract a profile from the strand (or “shaft”) of the hairs in this case, even if they do not have a root attached.   Because each cell contains hundreds of thousands of mitochondria, “old remains and evidence lacking nucleated cells – such as hair shafts, bones, and teeth – that are unamenable to STR or RFLP testing may yield results if mtDNA analysis is performed.”  Using DNA to Solve Cold Cases 6; see also Future of Forensic DNA Testing at 18.   
Although it has become widely available only in the last few years, mitochondrial DNA analysis has nonetheless proven an effective and highly reliable technique to definitively exclude (or include) a defendant as the person who deposited one or more hairs at a crime scene, even in complex cases involving multiple perpetrators, victims, and/or trace amounts of evidence.  See, e.g., Using DNA to Solve Cold Cases at 2 (in one recent case, “DNA analysis of a single hair (without the root) found deep in the victim’s throat provided a critical piece of evidence used in a capital murder conviction.”).   MtDNA has also revealed an unacceptably high risk of error inherent in conventional microscopic hair analysis, when it is used to include suspects as the likely source of unknown hairs – the subjective method of hair comparison relied upon at Petitioner’s trial in 1987.  In 2002, for example, two senior FBI hair analysts released a landmark study containing the results of mtDNA testing they conducted on 80 hairs that the FBI’s examiners had previously, through microscopic analysis, “positively associated” with known hair samples.  The test results showed that more than 11 percent of the time (9 out of 80 cases), the mtDNA tests conclusively excluded the questioned hairs -- thus flatly disproving the FBI examiners’ initial findings.  See Max M. Houck & Bruce Budowle, Correlation of Microscopic and Mitochondrial DNA Hair Comparisons,  J. Forensic Sci. vol. 47, no. 5, pp. 964-967 (September 2002).  Given that this study reviewed the work of perhaps the most highly-qualified hair examiners in the nation, the error rate among state and local examiners (many of whom have taken only brief training courses in hair analysis, and have considerably less experience) may well be significantly higher.  
MtDNA’s power to prove innocence – and to disprove earlier microscopic analyses that appeared to inculpate defendants -- has been borne out in a number of individual cases as well.  The first mtDNA exoneration in the nation occurred in 2000 in the case of William Gregory of Kentucky.  In 1993, Mr. Gregory was convicted of two rapes that occurred in the Kentucky apartment complex where he lived.   At trial, both victims positively identified Mr. Gregory as the rapist.  The perpetrator had worn pantyhose from one of the victims’ apartments as a mask and left it behind at the crime scene. The pantyhose contained five “Negroid” hairs that came from the perpetrator.  At trial, the prosecution presented the expert testimony of a state hair examiner, who had concluded that each of the hairs recovered by police from the pantyhose were consistent with Mr. Gregory’s own.  In 1999, however, after all of Mr. Gregory’s other challenges to his conviction had been denied, he obtained a court order for mtDNA testing.  The results showed that all five hairs had the same mtDNA profile, but none of them could have come from Mr. Gregory, leading to his exoneration and release from prison in 2000.  See “Free From Prison, Bound by Memories,” Courier-Journal, July 1, 2001; “DNA Evidence Frees Man Convicted in Rape Case,” Courier-Journal, July 6, 2000; “Lawmaker Calls For More Use of DNA,” Courier-Journal, July 6, 2000.
Similarly, Charles Fain of Idaho was convicted and sent to death row on the basis of flawed microscopic hair analysis – specifically, by an FBI analyst’s misattribution to him of two hairs found on the clothing of a murdered child.  The trial evidence against Fain included testimony from two jailhouse informants who claimed that he confessed to them in lurid detail. One of the informants had been serving a 230-year prison term, but released just three years after Fain’s trial in exchange for his “cooperation.” Coupled with this informant’s testimony was a forensic “expert’s” opinion that found near the body was a shoe print similar to Fain’s. Test results for advanced mitochondrial DNA occurred on the hairs at issue conclusively excluded Fain as the source, and he was spared execution and released from prison by joint motion of the parties in 2001.13   
C.	Fingernail scrapings from the victim
During the victim’s autopsy, the Medical Examiner collected clippings from her fingernails for further analysis.  This collection was standard practice at the time (as it is to this day), because material collected (or “scraped”) from under the nails are likely to contain blood or tissue from the perpetrator, particularly if the victim scratched or had other close contact with the perpetrator during the incident.  Given that the attacker bludgeoned the victim at close proximity, and that the state’s expert specifically noted the presence of “defensive” wounds on her hands, the perpetrator’s cellular material may have transferred to the victim’s fingernails during the struggle. 
Furthermore, even though the state’s expert testified that she observed no blood or tissue under the victim’s nails, today’s STR DNA technology is likely to obtain a highly discriminating result – even if this cellular material is not visible to the human eye.  See Using DNA to Solve Cold Cases at 21 (listing “blood, sweat, tissue” cells from fingernail scrapings among common items of evidence for modern DNA typing); What Every Law Enforcement Officer Should Know About DNA Evidence, U.S. Dept. Just. (Oct. 1999) at 2 (same).   This summer, for example, police in California were able to solve a difficult, 21-year-old cold murder case in which DNA typing on traditional evidence would be less than probative (as the victim was a prostitute) by performing STR DNA tests on the victim’s fingernail scrapings, and entering those results into CODIS.  The entry yielded an immediate hit on a convicted sex offender living out of state, who subsequently confessed to the murder.  See “’83 Case Cracked by DNA,”  Los Angeles Times, August 1, 2004.  Similarly, in Florida, officials were able to solve a brutal rape of a woman that occurred in front of her one-year-old son, by obtaining a single male DNA profile from the victim’s fingernail scrapings and traces of DNA found on a belt found outside the crime scene; the profile was entered into the database and resulted in a hit on a convicted burglar and carjacker.  See “DNA Test Leads to Arrest of Delray Rape Suspect,” South Florida Sun-Sentinel, June 11, 2004.   With good reason, Texas courts have relied upon DNA testing on fingernail scrapings linked to a victim’s struggle with a perpetrator as highly probative evidence.  See, e.g., Ortiz v. State, 2003 WL 1090577 (Tex.App.-Fort Worth), Mar. 13, 2003 (not designated for publication) (although defendant’s semen not found in victim’s body at autopsy, evidence that defendant’s DNA was consistent with DNA recovered from fingernail scrapings of victim held sufficient to uphold rape/murder conviction).  
D.	The bloodstained bandana, and hair strand from bandana
	DNA testing also has the proven scientific potential to obtain a profile of the perpetrator of the victim’s murder from skin, saliva, dandruff, or blood on the bloody bandana that found outside the couple’s home by the victim’s brother, and immediately turned over to the sheriff’s department personnel at the scene.  While the bandana may not necessarily be connected to the crime, DNA testing can provide powerful evidence of that connection, and conclusively identify the real perpetrator, under a number of scenarios.  For example, the blood on the bandana might well turn out to be the victim’s (splattered on the perpetrator’s clothing during the struggle), and the bandana itself might well contain abundant quantities of the perpetrator’s DNA (from his skin cells, sweat, own blood, or even saliva) – which, if he wore the bandana habitually or as a face covering during this violent murder, will likely mean he shed his DNA in multiple places on the bandana.  The mixture of the victim’s DNA with that of another, unidentified male, on a bloody piece of evidence recovered adjacent to the crime scene, would surely provide powerful evidence that another man committed this crime – particularly given the bandana’s location, and the possibility that the perpetrator inadvertently lost it while fleeing through the abandoned construction site behind the couple’s house.   The single hair strand recovered from the bandana could also be traced to another male, possibly through a databank hit if a root is attached which is amenable to STR-DNA testing.  See Part I.C.(2)(a), supra.  In addition, a relatively new form of STR-DNA testing, called Y-Chromosome DNA testing, now provides a highly sensitive means of isolating the male DNA present on the Y chromosome (which only males possess) – and thus can distinguish with precision any DNA on the bandana that might be mingled with Christine Morton’s blood or other bodily fluids.  See, e.g, Sinha et. al., Utility of the Y-STR Typing Systems Y-Plex 6 and Y-Plex 5 in Forensic Casework, J. Forensic Sci., Vol. 49, No.4, July 2004.
That trace amounts of a perpetrator’s DNA can be recovered from sources such as bandanas using modern technology is hardly conjecture; indeed, it is now part of the standard training law enforcement officers receive.  See What Every Law Enforcement Officer Should Know About DNA Evidence at 2 (citing “sweat, hair, dandruff” from a “hat, bandana, or mask” as “common items of evidence” that should always be collected and subjected to DNA testing if available); Using DNA to Solve Cold Cases at 21 (same, and further noting DNA testing potential on “skin cells” and “saliva” from these items).   Moreover, its probative value in connecting perpetrators to violent crime has recently been noted by the Texas courts.  See, e.g._Sandoval v. State, 2004 WL 1453453 (Tex.App.-San Antonio) (June 30, 2004) (not designated for publication).  In Sandoval, police found a murder victim in the bushes near her church in 1992. Her perpetrator stabbed and strangled her to death.  A blue bandana was found in a storm drain several blocks away, which was taken into custody and preserved by officials.  The case remained unsolved for over 10 years, until DNA testing on the bandana revealed that it contained a mixture of the victim’s and defendant’s DNA – powerful proof that was later deemed sufficient to uphold the jury’s verdict, despite the absence of any other direct evidence of the defendant’s guilt.  See id, at 3.   
Other cases from around the nation reveal similarly probative testing on DNA recovered from bandanas.  See, e.g., State v. Ellis, 2002 WL 362672 (Ohio App. 6 Dist., Mar. 8 2002) (Mem.) (mix of DNA profiles from defendant and kidnap victim on bandana recovered from crime scene identified defendant as perpetrator of robbery/kidnapping); State v. Pratt, 754 So.2d 355, 357 (La.App. 2 Cir. 2000) (same, re: bloodstained bandana in rape case); Clark v. State, 774 A.2d 1136, 1140 (in murder case, “spot of saliva” on bandana revealed same DNA profile as defendant, with DNA profile shared by only 1 in 7.7 million Caucasians).  And the “hair strand” recovered from the bandana here (T.497; supplemental DPS Report of  2/6/87) can also be subjected to DNA testing that can identify the true perpetrator – particularly if it came from the same source as the bandana itself, and/or other items from the crime scene.  See, e.g., U.S. v. McCarthy, 244 F.3d 998, 1000 (8th Cir. 2001) (in bank robbery case, DNA testing on hairs from stocking cap recovered from getaway car, and on dandruff from inside the cap itself, revealed that both items came from a single donor whose DNA profile matched defendant’s).
	5.	The victim’s nightgown 
	Finally, STR-DNA technology is capable of obtaining DNA results from trace amounts of semen or saliva that may have been deposited by the perpetrator on the victim’s nightgown during the attack, which both sides agreed she was wearing when she was murdered.  Notwithstanding the fact that state’s expert testified at trial that there did not “appear” to be any semen or spermatozoa on the nightgown, more sophisticated testing and analysis by a laboratory with a track record of obtaining such results may well be able to detect and obtain a male DNA profile from that evidence.  See Scheck Affidavit (Exhibit __) and cases cited therein.   
	Indeed, the case histories of the more than 150 individuals exonerated through post-conviction DNA testing in the U.S. to date include many who were exonerated through testing of trace amounts of biological material recovered from the victims’ clothing.  These include, among others:  Eddie Joe Lloyd of Michigan (exonerated of rape and murder in 2003, through DNA profile from semen on long johns wrapped around victim’s neck, which was consistent with profile from vaginal slide and other crime scene items); Kirk Bloodsworth of Maryland (exonerated of rape and murder in 1992, and real perpetrator apprehended in 2003, through DNA testing on semen from victim’s underwear); Herman Atkins of California (exonerated of rape in 2000, through DNA testing on victim’s sweater); Lonnie Erby of Missouri (exonerated of multiple rapes in 2003, through DNA testing on victims’ jeans, jacket, and other items).   DNA testing on clothing has also been used to solve “cold cases” as long as three decades after the fact.  See, e.g., “Authorities Say DNA Solves Case from ’71,” (CA) Register-Guard, Nov. 5, 2003 (after detective pulled clothing from evidence bag in unsolved 1971 rape, submitted for STR test, and ran results through CODIS, DNA profile matched convicted offender imprisoned for series of subsequent rapes in 1980’s).