Amos King's Motion for DNA testing





IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA



STATE OF FLORIDA, ) Case #CRC77-1696, 77-2173

Plaintiff, )

)

v. )

)

AMOS LEE KING, )

Defendant-Movant )





DEFENDANT=S MOTION TO RELEASE EVIDENCE FOR DNA TESTING

DEFENDANT=S 3.853 MOTION FOR DNA TESTING

Pursuant to Fla. R. Crim. Pro. 3.853 and Fla. Stat. '925.11, the
Defendant-Movant, AMOS LEE KING, through undersigned counsel, respectfully
moves this Court for mitochondrial and Y-chromosome DNA testing and a
forensic examination for semen of biological evidence collected pursuant to
the investigation that led to Mr. King=s conviction. The requested DNA
analysis is capable of exonerating Mr. King of the murder of Natalie Brady,
the crime for which he currently faces the sentence of death. Such testing
could also mitigate Mr. King=s sentence. Mr. King has always and continues
to steadfastly maintain his innocence of this terrible crime. There are now
DNA tests, previously unavailable, that could confirm Mr. King=s innocence
and put all uncertainty to rest. Before the state executes Mr. King, it
should allow scientists to perform these tests.

The grounds for this motion are more fully set forth below.



                FACTS

Facts

1. A death warrant has been signed against Mr. King, and his execution is
currently scheduled to take place at 6:00 p.m. on December 2, 2002.

2. Amos King was sentenced to death three days after the start of his trial
and 94 days after the offense took place. There were no eyewitnesses to the
murder of Mrs. Brady and no direct physical evidence linking Amos King to
her murder. In reviewing the facts of Mr. King=s case, the 11th Circuit
noted the lack of evidence produced at Mr. King=s trial. AKing was convicted
on circumstantial evidence which however strong leaves room for doubt that a
skilled attorney might raise to a sufficient level that, though not enough
to defeat a conviction, might convince a jury and a court that the ultimate
penalty should not be exacted, lest a mistake be made.@ King v. Strickland,
748 F. 2d 1462, 1464 (11th Circuit 194). Recovered from the body of Mrs.
Brady was a hair fragment found on her nightgown, three hairs recovered from
pubic hair combings, and fingernail scrapings taken from her right and left
hands. These items have never been subject to DNA testing. The only evidence
adducted at trial tying Mr. King to the Brady murder was misleading
testimony concerning a pairing knife found near the grounds of the facility
that could never be matched to the weapon used to superficially wound Mrs.
Brady, a misleading time line of events allegedly chronicling the time Mr.
King was missing from the Tarpon Springs work release center, and the
disputed and incredible testimony of a medical examiner who was forced to
retire and who now lives under a cloud of professional incompetence.

3. On January 8, 2002, the defendant filed a Motion to Release Evidence for
Additional DNA Testing.

4. A hearing was held on January 8, 2002, and at the conclusion of the
hearing, the court entered an order, dated January 8, 2002, denying the
relief requested, finding that the motion was technically insufficient and
that it could not otherwise meet the requirements of the statute or the rule
for the court to afford relief.

5. On January 11, 2002, the defendant filed an Amended Motion To Release
Evidence For Additional Testing. In that motion, the defendant stated that
physical evidence exists in this cause currently in the possession of the
Pinellas County Sheriff=s Office. Specifically, a hair fragment found on the
nightgown of the murder victim, three hairs obtained from the pubic hair
combings of the murder victim, and fingernail scrapings taken from both the
right and left hands of the murder victim. Counsel for Mr. King spoke to
Gary Cowsert, attorney for FDLE on January 7, 2002. Mr. Cowsert indicated
that all samples were returned to the Pinellas County Sheriff=s Office on
August 27, 2001. Thus, Pinellas County Sheriff=s Office evidence room is in
possession of said samples.

6. On January 11, 2002, a brief hearing was held on the Amended Motion To
Release Evidence For Additional Testing. A complete hearing was not held on
January 11, 2002.

7. On January 13, 2002, the court denied defendant=s Amended Motion To
Release Evidence For Additional DNA Testing.

8. On January 16, 2002, in King v. State, 808 So.2d 1237 (Fla. 2002) the
Florida Supreme Court affirmed the circuit court=s denial of defendant=s
Amended Motion To Release Evidence For Additional DNA Testing.

9. On November 26, 2002, undersigned counsel confirmed through his
investigator that the Pinellas County Sheriff=s Office has possession of the
samples of evidence, specifically, a hair fragment found on the nightgown of
the murder victim, three hairs obtained from the pubic hair combings of the
murder victim, and fingernail scrapings taken from both the right and left
hands of the murder victim.

10. Mr. King is innocent of the murder of Natalie Brady. He has always
asserted his innocence of this crime.

ARGUMENT



Fla. R. Crim. Pro. 3.853 implements Fla. Stat. ' 925.11 which provides for
postconviction DNA testing. See In Re Amendment to Florida Rules of Criminal
Procedure Creating Rule 3.853 (DNA Testing), 807 So.2d 633 (Fla. 2001). The
rule sets forth the procedure by which a convicted defendant may obtain DNA
testing. Though the rule imposes time limits on a defendant=s motion for
postconviction DNA testing, it permits any defendant to make such a motion
prior to October 1, 2003. Fla. R. Crim. Pro. 3.853 (d)(1)(A). The rule
further requires that the motion be made under oath and include the
following:

    (1) a statement of the facts relied on in support of the motion,
including a description of the physical evidence containing DNA to be tested
and, if known, the present location or last known location of the evidence
and how it originally was obtained (Fla. R. Crim. Pro. 3.853(b)(1));

    (2) a statement that the evidence was not tested previously for DNA, or
a statement that the results of previous DNA testing were inconclusive and
that subsequent scientific developments in DNA testing techniques likely
would produce a definitive result (Fla. R. Crim. Pro. 3.853 (b) (2));

    (3) a statement that the movant is innocent and how the DNA testing
requested by the motion will exonerate the movant of the crime for which the
movant was sentenced, or a statement how the DNA testing will mitigate the
sentence received by the movant for that crime (Fla. R. Crim. Pro. 3.853 (b)
(3));

    (4) a statement that identification of the movant is a genuinely
disputed issue in the case and why it is an issue or an explanation or how
the DNA evidence would either exonerate the defendant or mitigate the
sentence that the movant received (Fla. R. Crim. Pro. 3.853 (b) (4));

    (5) a statement of any other facts relevant to the motion (Fla. R. Crim.
Pro. 3.853 (b) (5));

    (6) a certificate that a copy of the motion has been served on the
prosecuting authority (Fla. R. Crim. Pro. 3.853 (b) (6));

This motion will address each of the above requirements in turn.



A. DEFENDANT AMOS KING FULFILLS THE REQUIREMENTS THAT FLA. R. CRIM. PRO.
3.853 IMPOSES ON THOSE SEEKING DNA TESTING AND THUS THE MOTION FOR TESTING
SHOULD BE GRANTED:



(1) Statement of Facts Relied on in the Motion, Description of the Evidence
to be Tested and Last Known Location of the Evidence (Fla. R. Crim. Pro.
3.853 (b) (1))

See the statement of facts above.

Defendant seeks:

      (a) Mitochondrial DNA (mtDNA) testing of three pubic hairs obtained
from the pubic hair combing of the murder victim;

      (b) MtDNA testing of one hair fragment found on the nightgown that the
murder victim was wearing when she was murdered;

      (c) Y-chromosome DNA testing of fingernail scrapings taken from the
left and right hand of the victim;

      (d) An examination of the pubic hairs from the victim=s pubic combings
for semen, and, if found, Short Tandem Repeat (STR) DNA testing of that
semen.



      This evidence was returned from the FDLE to the Pinellas County
Sheriff=s Office on August 27, 2001. (See Pinellas County Sheriff=s Office
ACISS Property and Evidence Report, Evidence Report #77-21317, attached as
Exhibit 1.) There is no suggestion that the evidence has been removed from
the Sheriff=s Office since that date and as of November 26, 2002 the
evidence remains at the Sheriff=s Office..



      (2) A statement that the evidence was not tested previously for DNA,
or a statement that the results of previous DNA testing were inconclusive
and that subsequent scientific developments in DNA testing techniques likely
would produce a definitive result (Fla. R. Crim. Pro. 3.853 (b) (2)).

The evidence that the Defendant seeks to test has previously been submitted
to the FDLE for STR type DNA testing. This testing was inconclusive either
because the evidence was found unsuitable for STR testing or because STR
testing could not obtain a result. (See FDLE Report dated August 27, 2001,
FDLE #20010306793 attached as Exhibit 2.)

There are, however, DNA testing techniques that the FDLE does not have the
capacity to perform that could obtain a result from this evidence. The
motion will discuss each piece of evidence and the requested testing, in
turn:

(a) and (b) MtDNA testing of the pubic hairs from the victim=s pubic combing
and the hair found on the victim=s nightgown. It is not surprising that STR
testing of the pubic hairs from the combing would be inconclusive. STR
testing is only capable of achieving a result from a hair when that hair has
a root or follicle attached. When only the shaft of the hair is available,
STR testing is not capable of producing a result. See National Institute of
Justice, U.S. Department of Justice, Postconviction DNA Testing:
Recommendations for Handling Requests at 60 (stating that if the DNA sample
to be tested is a hair shaft, nuclear DNA testing (of which STR is a type),
will not achieve a result).

But, mitochondrial DNA (mtDNA) testing, a newer and more refined DNA testing
technique, is capable of producing a result on a hair shaft or other hair
fragment even when STR testing cannot produce a result. This is because,
unlike STR DNA testing, mtDNA testing does not require the presence of a
hair root or follicle. As the Supreme Court of South Carolina explained in
State v. Council, Aunlike [STR DNA testing that relies on] nuclear DNA,
which is only present in the living cells at the roots of a pulled hair,
mtDNA is present in the shafts of hair.@ State v. Council, 515 S.E.2d 508,
516 (S. Car. 1999). Therefore, mtDNA tests can produce results on hairs even
when STR tests failed to produce results. Furthermore, labs can get mtDNA
test results from very small shafts of hair, even fragments as small as 0.5
centimeters (about 0.25 inches). See Web Page of Mitotyping Technologies,
LLC: http://www.mitotyping.com/dna.htm.

Because of its ability to get results from hair shafts when STR testing
could not, mtDNA testing is the standard method of testing hair shafts. See
National Institute of Justice, U.S. Department of Justice, Postconviction
DNA Testing: Recommendations for Handling Requests 107. The results of mtDNA
testing are widely admissible in American courts. See, e.g., State v.
Pappas, 776 A.2d 1091 (Conn. 2001); State v. Council, 515 S.E.2d 508, 516
(S. Car. 1999); State v. Underwood, 518 S.E.2d 231 (N. Car. 1999).

Despite its general admissibility and ability to get results when STR
cannot, the FDLE does not have the capacity to perform mtDNA tests.

(c)Fingernail scrapings from the victim=s left and right hands. In 2001, the
FDLE performed STR DNA testing on fingernail scrapings from the victim. The
results were inconclusive. (See FDLE Report dated August 27, 2001, FDLE
#20010306793 attached as Exhibit 2.)

However, a new DNA testing technique, colloquially called Y-chromosome DNA
testing, has been developed that should produce results on the victim=s
fingernail scrapings. This technique involves isolating the Y chromosome, a
chromosome that is only found in male DNA. Because it focuses on a portion
of human DNA unique to males, Y-chromosome DNA testing is especially
probative in situations in which one seeks to extract a male DNA profile
from a sample that contains biological material from two individuals B one
male and one female. See National Institute of Justice, U.S. Department of
Justice Postconviction DNA Testing: Recommendations for Handling Requests
29-30.

In situations where conventional STR DNA testing would not be able to
produce a result because the male portion of mixed sample would be
overwhelmed by the female portion, Y-chromosome DNA testing is capable of
isolating the male portion and thereby producing a conclusive male DNA
profile. See Cellmark Diagnostics Web Page,
http://www.cellmark-labs.com/pdf/ychrom.pdf. Experts specifically recommend
Y-chromosome DNA testing for Asamples such as fingernail clippings@ where
the male and female cells are not easily separated. Id.

The fingernail scrapings from the victim in this case will almost certainly
include substantial amounts of the victim=s own skin cells from under her
fingernails as well as biological material from her struggle with her
attacker. Y-chromosome DNA testing would isolate this male biological
material and thereby produce a male DNA profile even though conventional STR
testing was unable to produce such a result.

(d)Examination of the pubic hairs from the pubic combing for semen and STR
testing of that semen. The Defendant also asks that prior to mtDNA testing
of the pubic hairs, the pubic hairs be examined for the presence of semen.
And, if semen is found on those hairs, the semen from the hairs be removed
and subjected to STR DNA testing.

The initial FBI lab report from this case from 1977 specifically noted that
Asperm was not found in or on@ 27 different pieces of evidence from this
case. See Report of the FBI Laboratory, FBI File No. 95-215019, dated May
24, 1977 at page 4 (emphasis added) attached as Exhibit 3. But, quite
conspicuously, the FBI report made no mention of whether sperm was or was
not found on the victim=s pubic combings. Id. Thus, it seems that the pubic
hairs from the pubic combing were never examined for semen. This is
especially troubling because often, in the aftermath of a sexual assault,
semen is present in pubic combings.

Today, using modern forensic technology, like special ultra-violet light
sources, scientists are able to detect the presence of biological evidence
like semen that had previously gone undetected when examined using only the
naked eye. See Georgia Bureau of Investigation, Division of Forensic Science
Web Page, http://www.state.ga.us/gbi/fsdna.html.

If the pubic hairs that have never specifically been examined for semen are
examined for semen using modern technology, they may reveal semen that could
be subjected to STR DNA testing. The Defendant asks that such an examination
occur, and that if semen is found, the semen be subjected to DNA testing.

      (3) Statement that the Movant is Innocent and Statement Explaining How
DNA Testing Would Exonerate the Movant or mitigate the Sentence that the
Movant received. (Fla. R. Crim. Pro. 3.853 (b) (3)).

Amos King has always maintained his innocence of the murder of Natalie
Brady, the crime for which he currently faces the death penalty. He
continues to maintain his innocence today.

The DNA testing Mr. King now requests would exonerate him. As Florida courts
have held, the requirement in Fla. R. Crim. Pro. 3.853 (b) (3) that a motion
for DNA testing must explain how the testing Awill exonerate the movant of
the crime,@ effectively means that the movant must demonstrate that there is
a Areasonable probability@ that he would have been acquitted if the DNA
evidence had been available at trial or would have received a lesser
sentence. Knighten v. State of Florida, 27 Fla. L. Weekly D 2005 at 7, 2002
Fla. App. LEXIS 12836 at 7 (Fla. 2d DCA 2002). The DNA testing that Mr. King
seeks clearly would exonerate him. This Areasonable probability@ of an
acquittal or lesser sentence standard is the same standard that rule 3.853
states that courts must use when ruling on motions for postconviction DNA
testing. Fla. R. Crim. Pro. 3.853 (c)(5)(C)

(a) mtDNA testing of the pubic hairs from the victim=s pubic combing. In its
previous Order Denying Defendant=s Amended Motion to Release Evidence For
Additional DNA Testing, dated January 13, 2002, the Court wrote:

    As part of the investigation of this homicide, pubic hair combings of
the victim, Mrs. Brady, were obtained and sent to the FBI lab for analysis.
The FBI report says ASpecimen Q2 [which is Mrs. Brady=s pubic combings]
contained three brown pubic hairs of Caucasian originY [that] are
microscopically like the hairs contained in K2. [K2 is the known pubic hair
sample from Mrs. Brady.] In all probability these hairs originated from the
person represented by K2@Y It is clear that the three pubic hairs from the
pubic combings from Mrs. Brady are Mrs. Brady=s pubic hairs. This is no
surprise. This is what you expect from pubic combings from any person B
their own pubic hairs. Occasionally, there may be a pubic hair from the
perpetrator of a rape in a rape victim=s pubic hair combings. But not in
this case. All three pubic hairs from the combings microscopically matched
the known pubic hairs of Mrs. Brady. Since these three pubic hairs
originated from the victim, this court cannot make the required finding
under the statute or the rule, that there exists a reasonable probability
that the defendant would be acquitted or would receive a life sentence if
the requested testing were allowed. Florida v. King, Order Denying
Defendant=s Amended Motion to Release Evidence for Additional DNA Testing
(6th Cir. January 13, 2002) at p. 2-3, attached as Exhibit 4___. Affirmed by
King v. State, 808 So.2d 1237 (Fla. 2002).



Unfortunately, at the time the Court reached this determination, it did not
have available to it important scientific information regarding the
reliability of microscopic hair analysis. While microscopic hair analysis
was commonly used at the time of the investigation into Natalie Brady=s
murder, it has since fallen into disrepute. As discussed infra, recently,
mtDNA testing has conclusively proven the fallibility of microscopic hair
comparison by exonerating a number of innocent individuals who had
erroneously been convicted on the basis of microscopic hair comparison at
the time of trial.

Most significantly, however, since this Court=s order denying mtDNA testing
on January 13, 2002, the FBI has published a study that seriously calls into
question the reliability of microscopic hair comparison techniques on which
this Court previously relied.

In September 2002, the Journal of Forensic Sciences published the results of
a landmark study by the FBI that bears directly on the issue posed by this
petition: whether even the FBI=s own highly trained examiners can reliably
determine the likely source of an unknown hair based on microscopic hair
analysis alone. The study provides powerful new evidence that they cannot.
In this study, the co-authors (one of whom is himself a senior scientist at
the FBI) subjected 80 hairs that the FBI=s examiners had Apositively
associated@ with known hair samples to mtDNA testing. 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 B thus flatly disproving
the FBI examiners= initial findings. See Affidavit of Barry C. Scheck
attached as Exhibit 4.)

The FBI study=s authors did recommend the continued reliance on microscopic
hair comparison for certain purposes B specifically, for excluding hairs
from a given source. (That is not, of course, the finding that was made by
the FBI regarding the pubic hairs in this case, as they were positively
attributed to the victim). By contrast, however, the authors note the
Adiscriminating power and objectivity@ of mtDNA testing, and recommend its
use, where, as here, an initial microscopic examination results in an
inclusion. Id.

Indeed, it is inescapably clear from this study that were the FBI to
microscopically examine the stray pubic hairs recovered from the victim in
this case today, it would not rely solely on that method to support a
finding that these hairs may have been hers. Instead, the examiners would
proceed to mtDNA testing to test those preliminary findings, and to
conclusively and objectively determine whether or not the hairs could have
come from the victim, or instead are from another source. (And of course, if
in fact mtDNA testing were to show that hairs recovered from the pubic area
of this 67 year old woman immediately after her rape and murder do not
belong to either her or to Mr. King, that would provide dramatic evidence of
his innocence.) Thus, to the extent that this Court denied mtDNA testing on
the ground that the FBI=s microscopic examination techniques are alone
sufficient to determine the hairs= likely source, the fact that the FBI=s
own data shows otherwise provides this Court with a clear and compelling
basis to revisit its earlier ruling.

Were the FBI=s recent study not enough, the fallibility of microscopic hair
analysis has been powerfully demonstrated through a series of recent cases
involving innocent persons who were convicted in part on the basis of such
testimony, yet who were ultimately exonerated through mtDNA testing that
refuted those findings years after conviction.

The first such case in the nation was the exoneration of William Gregory in
2000. 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. In addition, the perpetrator had worn
a stocking cap left behind at one of the crime scenes which contained
several ANegroid@ hairs. 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 stocking cap were consistent with Mr. Gregory=s
own. In 1999, after all of Mr. Gregory=s other challenges to his conviction
had been denied, the Innocence Project obtained a court order permitting
mtDNA testing to proceed on one of the hairs. The results of that test B
directly contrary to the conclusion reached by the prosecution=s hair
examination expert at trial B conclusively excluded Mr. Gregory. The State
proceeded to test each of the remaining hairs at its own expense, with the
same exculpatory results. Based solely on the results of these DNA tests,
Mr. Gregory=s conviction was overturned and he was finally released from
prison in 2000. Id.

The cases of Ron Williamson and Dennis Fritz of Oklahoma even more
powerfully demonstrate the risk of error in conventional microscopic hair
comparison. In 1988, both men were convicted of the rape and murder of Debra
Sue Carter, whose dead body had been found six years earlier. Mr. Fritz was
sentenced to life in prison; Mr. Williamson was sentenced to death, and
indeed, prior to his eventual exoneration, came within five days of
execution. Among the key items of forensic evidence offered at their trials
was the testimony of a microscopic hair examiner that thirteen hairs found
around the victim=s body Amatched@ those of Mr. Fritz, and that another four
were identical to Mr. Williamson=s. Ultimately, however, the error of these
microscopic hair analyses were proved after the Innocence Project obtained
court orders providing for a series of DNA tests that exonerated both men.
Those tests showed, among other things, that none of the seventeen hairs
which had been attributed to Mr. Fritz or Mr. Williamson belonged to either
man. Indeed, the DNA profiles yielded from the postconviction DNA tests (on
several of the crime scene hairs, as well as the semen found in the victim=s
body) were the key not only to exonerating Mr. Fritz and Mr. Williamson, but
also in identifying the real rapist and murderer, an incarcerated felon
named Glen Gore. Id.

Yet another remarkable example of the forensic advances made possible by
mtDNA analysis is the case of Charles Fain, who served 18 years on Idaho=s
death row before he was exonerated by such testing last year. Mr. Fain was
convicted of the brutal murder, rape, and kidnapping of a young girl that
occurred in 1982. Along with dozens of other men in the area, he had agreed
to provide police with hair samples, which were then compared with pubic
hairs that had been found on the victim=s socks and underwear, and the crime
scene hairs were deemed consistent with his own under conventional
microscopic analysis. MtDNA testing performed eighteen years later, however,
proved that the findings made at the time of trial were was entirely
erroneous, as the hairs were conclusively demonstrated not to be Mr. Fain=s.
Mr. Fain narrowly escaped execution before he was exonerated and released in
August 2001. Id.

Thus, modern science, the cases of DNA exonerees, and the FBI itself now all
provide powerful testimony of the fallibility of microscopic hair comparison
and cry out for a new, DNA based evaluation of the FBI=s 1977 hair
comparison of the pubic hairs in this case. When a man is about to be
executed, and a new DNA test could definitively resolve his guilt or
innocence, that DNA test ought not be denied.

If the pubic hairs from the victim=s pubic combing are subjected to mtDNA
testing and that testing excludes both Natalie Brady and Amos King, that
would represent profoundly exculpatory evidence. One person=s pubic hairs do
not causally become entangled in the pubic hairs of another; if the pubic
hairs from the combing do not come from Natalie Brady or Amos King, it would
conclusively show that an unknown individual had sexual contact with the
victim a short time prior to her death. Since the crime was a rape-murder,
the perpetrator was the last person to have sexual contact with the victim
prior to her death, and, thus, the perpetrator is the almost certainly the
source of this hair. If the pubic hair from the combings comes from neither
Natalie Brady nor Amos King, it would demonstrate that an unknown individual
raped Mrs. Brady, and would exonerate Mr. King. At very least, considering
the total dearth of direct evidence implicating Amos King in the murder,
such exculpatory mtDNA evidence would raise the Areasonable probability@ of
an acquittal at retrial and the Areasonable probability@ of a lesser
sentence on proportionality grounds. Fla. R. Crim. Pro. 3.853 (c)(5)(C).

(b) mtDNA testing of hair found on the victim=s nightgown. In the Court=s
January 13, 2002 Order Denying Defendant=s Amended Motion to Release
Evidence For Additional DNA Testing, the Court wrote:

    This hair fragment could have been transferred from any one=s hair that
was on Mrs. Brady=s floor as she crawled from her bedroom to the back door,
from any one=s hair that was on her porch area where she expired, from any
one=s hair that was on the ground outside her house where she was dragged
away from the fire, from the perpetrator of the rape and murder, from one of
the men who dragged her away from the burning house, from the medical
examiner, from one of those who identified her, from any other fire or
police personnel present, or from Mrs. Brady. Thus, even if this fragment of
a body hair could be further re-tested for DNA, and it was determined that
it didn=t come from Mrs. Brady, or from Mr. King, this court cannot make the
required finding under the statue or the rule, that there exists a
reasonable probability that the defendant would be acquitted, or that he
would receive a life sentence if the requested re-testing were allowed.
Florida v. King, Order Denying Defendant=s Amended Motion to Release
Evidence for Additional DNA Testing (6th Cir. January 13, 2002) at p. 2..
Affirmed by King v. State, 808 So.2d 1237 (Fla. 2002).



The Defendant now seeks mtDNA testing of the unknown hair from the nightgown
that the victim was wearing when she was murdered, not because of its
independent evidentiary value, but rather because of its potential value in
combination with the mtDNA testing of the pubic hairs from the pubic
combing. The Defendant concedes that, by itself, an mtDNA result from the
hair on the nightgown that excluded Natalie Brady and Amos King would not
exonerate Mr. King or produce the Areasonable probability@ of an acquittal
or lesser sentence. But, if the mtDNA test excluded Natalie Brady and Amos
King and matched the mtDNA result from the pubic hairs, this would further
Mr. King=s demonstration of his actual innocence. As stated above, the fact
that only a Afragment@ of this hair is available should not prevent mtDNA
testing from achieving a result, as mtDNA testing results have been achieved
from hair fragments as small as 0.5 cms in length.

(c)Fingernail scrapings from the victim=s left and right hands. In the
Court=s January 13, 2002 Order Denying Defendant=s Amended Motion To Release
Evidence For Additional DNA Testing, the Court wrote,

    The only method of testing fingernail scrapings is that which was used
by the Florida Department of Law Enforcement (FDLE) to test the scrapings in
this case. The type [of] testing done by the FDLE is called Short Tandem
Repeat Typing DNA testing (STR DNA). The defendant merely suggests that the
results of the FDLE analysis that there was insufficient material for STR
DNA analysis might be wrong. There is no provision in the statute or the
rule for re-testing once testing has been done by FDLE. Florida v. King,
Order Denying Defendant=s Amended Motion to Release Evidence for Additional
DNA Testing (6th Cir. January 13, 2002) at p. 3. Affirmed by King v. State,
808 So.2d 1237 (Fla. 2002).

While Fla. Stat. ' 925.11 and Fla. R. Crim. Pro. 3.853 do not provide for
re-testing using a method of DNA testing previously employed, they do
provide for DNA testing when the initial testing was inconclusive and a more
recently-developed DNA testing technique likely would produce a definitive
result. (See section (2) (c) of this motion supra, showing that Y-chromosome
DNA testing of the victim=s fingernail scrapings meets the standard of Fla.
R. Crim. Pro. 3.853 (b)(2)).

Unfortunately, at the time of its previous ruling, the Court did not have
before it information about Y-chromosome DNA testing discussed in section
(2) (c) of this motion supra. As discussed above, because Y-chromosome DNA
testing is able to isolate the male portion of a sample that contains both
male and female biological material, this new testing technique can produce
a conclusive male DNA profile from samples in which conventional STR DNA
testing would be inconclusive because the male profile would be overwhelmed
by the female profile. See Cellmark Diagnostics Web Page,
http://www.cellmark-labs.com/pdf/ychrom.pdf. In this case, the fingernail
scrapings from Mrs. Brady=s left and right hands is just such a sample: It
is likely to have significant numbers of the victim=s own skin cells, but
also some biological material from her struggle with her attacker.

Y-chromosome DNA testing has achieved conclusive results from evidence and
thus exonerated wrongly-convicted individuals even when prior DNA testing of
that same evidence had yielded inconclusive results.

For example, in 1983, A.B. Butler, Jr. was convicted of abducting and raping
a 25-year-old woman at knifepoint in Smith County, Texas. The victim
identified Butler from mug shots, from a line-up and at trial. Butler was
convicted and sentenced to 99 years in prison. In 1999, semen from the
victim=s rape kit was subjected to DNA testing, but the results were
inconclusive. The evidence was then sent to the New York City Medical
Examiner=s Office where Y-chromosome DNA testing had just been developed.
The Y-chromosome DNA test definitively excluded Butler as the source of the
semen. Based on these results, the Smith County District Attorney agreed to
join Butler=s lawyer in requesting a pardon. In May 2000 then-Governor
George W. Bush pardoned Butler after Butler had served more than sixteen
years in prison for a crime he did not commit. See Evan Moore, Freed Convict

>Just Glad to Be Out=; DNA Analysis Indicates Tyler Man Not Rapist in 1983

Case, The Houston Chron., January 8, 2000, at A31; Staff, Man Freed By DNA
is Pardoned; New Testing Brought Relief After 17 Years The Dallas Morn.
News, June 1, 2000, at 16A; John W. Gonzalez, Evan Moore, & Clay Robison,
Bush Favors Delaying Inmate=s Execution for DNA Test, The Houston Chron.,
June 1, 2000, at A1.

Y-chromosome DNA testing of the fingernail scrapings from Natalie Brady=s
left and right hands that yielded a male profile and excluded Amos King
would represent profoundly exculpatory evidence. Male biological material in
the victim=s fingernail scrapings would show that the victim scratched a
male shortly before her death. Since the autopsy of the victim=s body
suggested an extended physical confrontation with her attacker, male
biological material found under her fingernails would almost certainly come
from her attacker.

If this male biological material comes from someone other than Amos King, it
would demonstrate that Mrs. Brady struggled with an unknown man shortly
before her death, and would exonerate Mr. King. At very least, considering
the total dearth of direct evidence implicating Amos King in the murder,
such exculpatory Y-chromosome DNA evidence would raise the Areasonable
probability@ of an acquittal at retrial and the Areasonable probability@ of
a lesser sentence on proportionality grounds. Fla. R. Crim. Pro. 3.853
(c)(5)(C).





(d) Examination of the pubic hairs from the pubic combing for semen and STR
testing of that semen. As noted in section (2)(d) of this motion above, the
initial FBI examination of evidence from this case specifically noted that
sperm was not found in or on 27 different pieces of evidence, but, quite
conspicuously, the report made no mention of whether sperm was or was not
found on the victim=s pubic combings. (See section (2) (d) of this motion
supra.) Today, using modern forensic technology like special light sources
that illuminate biological evidence, scientists are able to detect semen
that had previously gone undetected. If semen is discovered on these pubic
hairs, it could be subjected to STR DNA testing.

If such STR testing excluded Amos King as the source, it would exonerate him
of the rape-murder of Natalie Brady. The prosecution=s only physical
evidence against Mr. King at trial was that semen of a man with his blood
type B a blood type which a state=s witness said was shared by 33% of the
black population B was found in the vaginal washings taken from the victim=s
body by the Medical Examiner. In its December 20, 2001 Order Amending the
Court=s Prior Order Dismissing as Moot CCRC-M=s Motion for DNA Testing, the
Court concluded that Athe vaginal washing sought [by the Defendant] has long
ago been destroyed and no longer exists for DNA testing.@ Florida v. King,
Order Amending the Court=s Prior Order Dismissing as Moot CCRC-M=s Motion
for DNA Testing, (6th Cir. December 20, 2001.).

Although the semen-infused vaginal washings have been lost or destroyed by
the State, semen on pubic hairs found in the victim=s pubic combing would be
just as probative of the identity of the actual perpetrator. Since it was
merely the blood type of semen from the victim=s body that was used to
convict Mr. King, a much more discriminating STR DNA test of semen found on
the victim=s body that excluded Mr. King would exonerate him. It would
undoubtedly meet the Areasonable probability@ standard of 3.853 (c)(5)(C).

Furthermore, the DNA profile produced from the semen could be put into the
state and national DNA databank for the purpose of identifying the true
assailant. DNA tests that have exonerated individuals have also led to the
indictment and conviction of the true perpetrator in a number of cases. For
example, in December 2000, Frank Lee Smith, who served 14 years on Florida=s
death row for the 1985 rape-murder of a Fort Lauderdale girl, was exonerated
on the basis of DNA testing. Those same test results identified Eddie Lee
Mosley as the actual perpetrator. Sadly for Frank Lee Smith, his exoneration
came eleven months after he died of cancer on Florida=s death row. See
Shannon O=Boye, Paula McMahon, & Ardy Friedberg, Death Row Prisoner Dies;
Now, DNA Test Clears Him, Sun-Sentinel (Ft. Lauderdale, Fla.), December 15,
2000 at 1A; Charles Savage, Caroline Keough, Lesley Clark, Smith=s Lawyers
Say Officials Knew A Decade Ago He Might Be Innocent, The Miami Herald,
December 16, 2000.

(4) Statement that Identification of the Movant is a Disputed Issue in the
Case (Fla. R. Crim. Pro. 3.853 (b) (4))

The identity of Natalie Brady=s murderer is a genuinely disputed issue in
this case. There was no eyewitness to the crime, and the evidence against
Mr. King was scant and entirely circumstantial. The most discriminating
evidence linking Mr. King to the crime scene was that semen found in the
victim=s vaginal washings was blood type A, and Mr. King, having type A
blood, was one of 33% of the black male population who could have been the
source of that semen. Florida courts have seen fit to order DNA testing in
many cases where the identity of the perpetrator was less in doubt. For
example, even in cases in which the victim identified the defendant as the
perpetrator, Florida courts have found nonetheless that identity Ais a
genuinely disputed issue in the case@ for the purposes of Fla. R. Crim. Pro.
3.853 (b)(4). See, e.g. Knighten v. State, 27 Fla. L. Weekly D. 2005 (2nd
DCA 2002); Zollman v. State, 820 So.2d 1059 (2nd DCA 2002).

(5) Statement of Any Other Relevant Facts (Fla. R. Crim. Pro. 3.853 (b) (5))

All of the relevant facts have been included in other sections of the
motion.



(6) Certificate of Service of Motion on Prosecuting Attorney (Fla. R. Crim.
Pro. 3.853 (b) (6))

A certificate of service of the motion on the prosecuting attorney has been
attached.

B. BECAUSE THE FDLE DOES NOT PERFORM THE TYPES OF DNA TESTING REQUESTED BY
THE DEFENDANT, THE EVIDENCE SHOULD BE SENT TO LABS THAT DO PERFORM SUCH
TESTS PURSUANT TO FLA. R. CRIM. PRO. 3.853 (c) (7).

Fla. R. Crim. Pro. 3.853 (c)(7) provides that, as a general matter,
postconviction DNA testing should be conducted by the FDLE. However, the
statute also provides that Aon a showing of good cause@ a court may order
testing by another laboratory certified by the American Society of Crime
Laboratory Directors or the National Forensic Science Training Center,
provided that the movant is willing to bear the cost of such testing. Fla.
R. Crim. Pro. 3.853 (c)(7).

This is precisely the type of case for which the Agood cause@ exception was
created. Mr. King seeks mtDNA testing and Y-chromosome DNA testing, two
types of DNA testing that the FDLE does not have the capacity to perform.
Thus, Mr. King can only obtain the DNA testing he seeks if the testing is
performed by a lab other than the FDLE.

The Defendant requests that Mitotyping Technologies, one of the few labs in
the nation that has the capacity to perform mtDNA testing, undertake mtDNA
testing of the three pubic hairs from the pubic combing and the hair from
the victim=s robe. Terry Melton, President of Mitotyping Technologies has
suggested that such testing could be performed within two months of their
receipt of the hairs. Mitotyping Technologies is certified by the American
Society of Crime Laboratory Directors.

The Defendant further requests that Cellmark Diagnostics (which recently
changed its name to AOrchid Cellmark@) perform the Y-chromosome DNA testing
of fingernail scrapings from the victim=s left and right hand. The Defendant
further requests that Cellmark examine the pubic hairs from the victim=s
pubic combings for semen, using the most advanced semen detection
technology. If semen is found on the pubic hairs, Defendant requests that
Cellmark extract the semen from the hairs and perform STR DNA testing on
that semen. Sarah Pogue of Cellmark has suggested that such testing could
all be completed within three to five weeks of their receipt of the
evidence. Cellmark is certified by the American Society of Crime Laboratory
Directors.

The movant is prepared to bear the full costs of all testing.

CONCLUSION

IN SUM, as Florida courts have noted, Athe purpose of the rule 3.853 is to
provide defendants with a means by which to challenge convictions when there
is a >credible concern that an injustice may have occurred and DNA testing
may resolve the issue.=@ Zollman v. State, 820 So.2d 1059, 1062 (2nd DCA
2002) (quoting In re Amendment to Florida Rules of Criminal Procedure
Creating Rule 3.853 (DNA Testing), 807 So.2d 633, 636 (Fla. 2001) (Anstead,
J., concurring)). In the case of Amos Lee King, there is a Acredible concern
that an injustice may have occurred@: King was convicted of the murder of
Natalie Brady on the basis of scant and circumstantial evidence, and King
has steadfastly maintained his innocence. A human being is about to be put
to death. Before we undertake such a grave and irreversible step, we should
allow him the opportunity to use modern DNA testing technology to prove his
innocence.







WHEREFORE, Amos King, through counsel, respectfully requests this court to
ORDER the following:

      (1) mtDNA testing of the pubic hairs from the victim=s pubic combings
by Mitotyping Technologies, LLC; 1981 Pine Hall Drive; State College, PA
16801.

      (2) mtDNA testing of the hair found on the victim=s nightgown by
Mitotyping Technologies, LLC; 1981 Pine Hall Drive; State College, PA 16801.

      (3) Y-chromosome DNA testing of the fingernail scrapings from the
victim=s left and right hands by Orchid Cellmark Diagnostics; 20271
Goldenrod Lane, Suite 101; Germantown, MD 20876.

      (4) a forensic examination of the pubic hairs from the pubic combings
for semen, and, if semen is present, the extraction of the semen and its STR
DNA testing by Orchid Cellmark Diagnostics; 20271 Goldenrod Lane, Suite 101;
Germantown, MD 20876.

      RESPECTFULLY SUBMITTED,



      _________________________________________

      James Viggiano

      Assistant Capital Collateral Regional Counsel

      3801 Corporex Drive

      Suite 210

      Tampa, FL 33619

      Nina Morrison

      David F. Menschel, Esq. (NY Bar Application Pending)

      The Innocence Project

      Cardozo School of Law

      New York, NY





      CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the foregoing motion
has been furnished to the attorneys of records this ____ day of November,
2002.

      James Viggiano

      Florida Bar No. 0715336

      Assistant CCC

      Capital Collateral Regional

      Counsel - Middle Region

      3801 Corporex Park Drive

      Suite 210

      Tampa, FL 33619

      (813) 740-3544

      Copies furnished to:

      Honorable Susan F. Schaeffer

      Circuit Court Judge

      545 1st Avenue North, Room 417

      St. Petersburg, FL 33701

      Carol M. Dittmar

      Assistant Attorney General

      Office of the Attorney General

      Westwood Building, 7th Floor

      2002 N. Lois Avenue

      Tampa, FL 33607

      C. Marie King

      Assistant State Attorney

      Office of the State Attorney

      P.O. Box 5028

      Clearwater, FL 33758-5028

      The Honorable Thomas D. Hall

      Clerk, Supreme Court of Florida

      ATTN: Tanya Carroll

      Supreme Court Building

      500 S. Duval Street

      Tallahassee, FL 32399-1927





      United States Court of Appeals for the

      Eleventh Circuit

      ATTN: Joyce Pope

      56 Forsyth Street N.W.

      Atlanta, GA 30303

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