IN THE SUPREME COURT OF FLORIDA
WAYNE TOMPKINS,
Appellant
v. CASE NO. 67974
STATE OF FLORIDA
Appellee.
________________________/
STATUS REPORT FROM WAYNE TOMPKINS= COUNSEL
Yesterday, February 3, 2009, counsel for WAYNE TOMPKINS was advised that this
Court had directed a status report to be filed. However, this Court=s order is not available online,
nor has counsel received the report in any other fashion. When the State filed it=s report it
referenced the above-entitled case number. And from the online docket it is apparent that this
Court did enter yesterday=s order in the above-captioned case, which unfortunately is not included
on the death warrant page and thus is not available to be reviewed online.
WAYNE TOMPKINS,
Appellant
v. CASE NO. 67974
STATE OF FLORIDA
Appellee.
________________________/
STATUS REPORT FROM WAYNE TOMPKINS= COUNSEL
Yesterday, February 3, 2009, counsel for WAYNE TOMPKINS was advised that this
Court had directed a status report to be filed. However, this Court=s order is not available online,
nor has counsel received the report in any other fashion. When the State filed it=s report it
referenced the above-entitled case number. And from the online docket it is apparent that this
Court did enter yesterday=s order in the above-captioned case, which unfortunately is not included
on the death warrant page and thus is not available to be reviewed online.
Currently, there is pending in state circuit court a motion submitted by Mr. Tompkins
requesting DNA testing. Even though the State opposed any testing, the Governor ordered DNA
testing to be conducted of a number of items. Bone fragments from the body, a bathrobe found
with the body, a sash found around the victims neck, a pajama top, and a piece of a barrette were
obtained by FDLE and sent to the FBI on December 16, 2008.
requesting DNA testing. Even though the State opposed any testing, the Governor ordered DNA
testing to be conducted of a number of items. Bone fragments from the body, a bathrobe found
with the body, a sash found around the victims neck, a pajama top, and a piece of a barrette were
obtained by FDLE and sent to the FBI on December 16, 2008.
According to the FBI report that was provided to Mr. Tompkins= counsel which was dated
January 2, 2009, only one of the three bone fragments submitted was tested for mitochondrial
DNA. As to the one fragment that was tested, there was an insufficient quantity of mitochondrial
DNA found and thus no DNA sequence was obtained. Beyond testing just the one bone fragment,
January 2, 2009, only one of the three bone fragments submitted was tested for mitochondrial
DNA. As to the one fragment that was tested, there was an insufficient quantity of mitochondrial
DNA found and thus no DNA sequence was obtained. Beyond testing just the one bone fragment,
A[n]o other mtDNA examinations were conducted.@ No explanation was provided a to why the
other bone fragments were not tested.
According to the FBI report that was provided to Mr. Tompkins= counsel, which was dated
December 23, 2008, besides the submission of three bone fragments, the FBI was provided a piece
of barrette, a robe, a pajama top, and a robe sash. However, no reports concerning any testing of
these items by the FBI has been provided to counsel. Counsel has merely received an FDLE
report indicating that these items were returned to the FDLE on January 20, 2009.
However, an FDLE report dated January 27, 2009, reveals that FDLE did an analysis of the
bathrobe, the sash, and the pajama top. According to the FDLE report, the bathrobe, the sash and
the pajama top all gave chemical indications for the presence of blood. Also according to the
FDLE report, hair and debris were collected from each item, i.e. the bathrobe, the sash, and the
pajama top. However as to this hair debris that was collected, A[n]o analysis was performed@.
ASamples@ from the bathrobe, the sash, and the pajama top were submitted for DNA
analysis. However according to the January 27th report, a ADNA profile was not obtained from
the STR analysis@ of the items.
December 23, 2008, besides the submission of three bone fragments, the FBI was provided a piece
of barrette, a robe, a pajama top, and a robe sash. However, no reports concerning any testing of
these items by the FBI has been provided to counsel. Counsel has merely received an FDLE
report indicating that these items were returned to the FDLE on January 20, 2009.
However, an FDLE report dated January 27, 2009, reveals that FDLE did an analysis of the
bathrobe, the sash, and the pajama top. According to the FDLE report, the bathrobe, the sash and
the pajama top all gave chemical indications for the presence of blood. Also according to the
FDLE report, hair and debris were collected from each item, i.e. the bathrobe, the sash, and the
pajama top. However as to this hair debris that was collected, A[n]o analysis was performed@.
ASamples@ from the bathrobe, the sash, and the pajama top were submitted for DNA
analysis. However according to the January 27th report, a ADNA profile was not obtained from
the STR analysis@ of the items.
These reports were provided to Mr. Tompkins= counsel on January 28, 2009. Counsel has
been consulting with appropriate experts as to what thee reports mean and/or reveal. At a
minimum, it is clear that hair and debris found with the victim exists, the existence of which was
not previously known. There is biological material on the bathrobe, the sash, and the pajama top,
which by definition must contain DNA, but which the methods used by FDLE were not
sophisticated enough to produce a DNA sequence. And, there remains bone fragments which the
FBI did not test for mitochondrial DNA, but which could be tested by analyst of Mr. Tompkins=
choice.
been consulting with appropriate experts as to what thee reports mean and/or reveal. At a
minimum, it is clear that hair and debris found with the victim exists, the existence of which was
not previously known. There is biological material on the bathrobe, the sash, and the pajama top,
which by definition must contain DNA, but which the methods used by FDLE were not
sophisticated enough to produce a DNA sequence. And, there remains bone fragments which the
FBI did not test for mitochondrial DNA, but which could be tested by analyst of Mr. Tompkins=
choice.
Given that the reports revealing this information was disclosed exactly one week ago
today, counsel has not had time to further digest this information and determine what avenues to
pursue on behalf of Mr. Tompkins. Counsel is consulting with Mr. Tompkins today and is trying
to prepare the appropriate legal papers for filing as soon as they are completed.
As for federal proceedings currently pending, Mr. Tompkins has filed a notice of appeal
from the dismissal of federal habeas petition. Currently an application for a certificate of
appealability is pending in the Eleventh Circuit.
Mr. Tompkins is also pursuing certiorari review in the United States Supreme Court. An
application for a extension of time was sent to the U.S. Supreme Court on Saturday, January 31,
2009, obviously before counsel was advised of the new execution date.
I HEREBY CERTIFY that a true copy of the foregoing status report has been furnished
by United States Mail, first class postage prepaid, to Jalal Harb, Assistant State Attorney, Office of
the State Attorney, Courthouse Annex, 800 East Twiggs Street; Tampa, FL 33602; Scott
Browne, Assistant Attorney General, Concourse Center 4, 3507 E. Frontage Road, Suite 200,
Tampa, FL 33607-7013 on February 4, 2009.
Respectfully submitted,
_________________________________
MARTIN J. MCCLAIN
Florida Bar No. 0754773
Special Assistant CCRC-South
101 NE Third Ave.
Fort Lauderdale, FL 33301
(305) 984-8344
Attorney for Mr. Tompkins
Looks to me like the State is trying to pull a fast one this time. Have Tompkins killed before all the legal tangles can be sorted out.
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