UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AT AUSTIN. v. CIVIL ACTION NO.

Transcription

1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AT AUSTIN MICHAEL W. MORTON and PATRICIA A. STAPLETON, Plaintiffs, v. CIVIL ACTION NO. JOHN BRADLEY, DISTRICT ATTORNEY FOR WILLIAMSON COUNTY, in his official capacity; and JAMES R. WILSON, SHERIFF FOR WILLIAMSON COUNTY, in his official capacity, Defendants. Plaintiffs Michael W. Morton and Patricia A. Stapleton, by and through their attorneys, the law firm of Cooper & Scully, P.C., and the Innocence Project, Inc., state as follows: INTRODUCTION 1. This is a case about the use of modern forensic DNA and fingerprint

2 technology to identify suspects and solve crimes, and the constitutional rights of citizens to access those technologies where the State unreasonably and arbitrarily refuses to do so. 2. The Plaintiffs causes of action arise out of two brutal murders that occurred in the 1980s in Williamson County, Texas. On November 4, 1980, Plaintiff Patricia Stapleton and her husband arrived at the home of her mother, Mildred McKinney, where they found Mrs. McKinney s bloody corpse lying between her bedroom and an adjacent bathroom. Five and one-half years later, on August 13, 1986, Plaintiff Michael Morton arrived home from work to find his house surrounded by police investigators, who informed him that his wife, Christine, had been found bludgeoned to death in their bed. 3. Although the two murders were committed more than five years apart, they occurred less than a mile from one another -- and the crime scenes revealed remarkable similarities in the perpetrator s modus operandi. Both victims were bludgeoned to death after bloody assaults in their bedrooms. Neither crime scene showed any signs of forced entry yet in both, unidentified fingerprints were found on unlocked, sliding glass doors to the home. And perhaps most notably, both victims were found with several items of household furniture stacked on top of their bodies. 4. In the intervening twenty-two years, the cases have taken quite different procedural paths. Michael Morton found himself charged with his wife s murder, and was convicted by a jury of that crime in His jury, however, heard not a word about the disturbingly similar nearby murder of Mrs. McKinney. Instead -- despite the fact that there was no evidence whatsoever of past violent behavior (domestic or otherwise) on Mr. Morton s part -- the jury was presented with, and convicted him upon, a wholly speculative theory that he killed his wife in a sexual rage, simply because she

3 was too tired to have marital relations with him the previous evening after they returned home from dinner and put their young son to bed. Today, Mr. Morton remains incarcerated for a crime that he has asserted, for the last twenty-one years, he did not commit. 5. For her part, Plaintiff Patricia Stapleton has spent the last twenty-seven years waiting to learn the identity of her mother s killer. In 1984, a notorious alleged serial killer named Otis Toole confessed to and was indicted for Mrs. McKinney s murder. Yet two years later, a comprehensive investigation by the Attorney General of Texas determined that Toole and his crime partner, Henry Lee Lucas, had falsely confessed to dozens of crimes they could not have committed including the McKinney murder, which occurred in a month when both Toole and Lucas were in Florida. The crime remains unsolved to this day. 6. In addition to their highly similar modus operandi, these two cases have another, key commonality: untested DNA and fingerprint evidence that could conclusively determine the identity of the perpetrator of each crime. Although unavailable in the 1980s, state-of-the-art DNA and fingerprint technology of the sort that is routinely used by law enforcement to solve cold cases today could easily, and at no cost to the State, be applied to critical crime scene evidence in both the Morton and McKinney cases. The results of this analysis might prove not only suitable for comparison to one another, but also searchable in state and federal DNA and fingerprint databases -- potentially generating a hit to one of the tens of millions of individuals whose identifying information is stored therein. 7. Defendants have several items of critical DNA and fingerprint

4 evidence from both cases in their exclusive custody and control. Specifically, they include the following: (1) a blood-stained bandana recovered from a curb behind the Mortons home on the day of Mrs. Morton s murder, which may contain blood, skin cells, and/or saliva of the assailant mixed with Mrs. Morton s own blood; (2) a foreign hair recovered from the blood-stained bandana; (3) unidentified fingerprints from the Morton crime scene (including a print found on the lock above the unlocked, sliding glass door at the back of the house, and on a suitcase on top of Mrs. Morton s corpse); (4) biological material collected from Mrs. McKinney at her autopsy, including vaginal, oral, and anal swabs believed to contain semen; fingernail clippings; and hair samples; and (5) unidentified fingerprints from the McKinney crime scene, including prints recovered from the home s sliding glass door. 8. Through counsel, Plaintiffs have repeatedly requested that Defendants release this evidence for testing and analysis at Plaintiffs expense, but Defendants have refused to do so. Because Defendants continued denial of access to this evidence violates Plaintiffs federal constitutional rights in several respects, Plaintiffs bring the instant action for injunctive relief under 42 U.S.C Specifically, as set forth herein, the defendants have refused to release evidence that has the scientific potential to establish Mr. Morton s actual innocence, free him from custody, and further identify the individual who committed the murder of his wife whether through exculpatory test results on the evidence collected from the Morton crime scene, and/or by revealing that a common, third-party perpetrator committed both the Morton and McKinney murders. As such, Defendants actions violate his rights to due process of law, access the courts, petition for executive clemency, confrontation and

5 compulsory process, and be free from cruel and unusual punishment, as guaranteed by the First, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. 10. As to Mrs. Stapleton, the defendants refusal to provide access to this critical forensic evidence stands as an absolute barrier to her ability to learn, for the first time, the identity of her mother s murderer thus precluding Plaintiff from exercising her statutory right to sue that individual for damages resulting from her mother s homicide under Texas s wrongful death act. As such, Defendants actions deprive Mrs. Stapleton of her right of access to the courts as guaranteed by Article 4 and the First and Fourteenth Amendments of the United States Constitution. Defendants refusal to permit her access to this evidence as well as to provide her with basic information as to what steps, if any, they have taken or even contemplate taking to utilize modern forensic technology to investigate and solve her mother s murder also violates numerous provisions of Texas s Crime Victims Bill of Rights, as well her Fourteenth Amendment due process right to access the protections and procedures established by Texas s victims rights laws. JURISDICTION 11. This Court has jurisdiction, pursuant to 28 U.S.C and 1343, over Plaintiffs federal constitutional claims arising under 42 U.S.C Supplemental jurisdiction over Plaintiff Stapleton s state law claims exists pursuant to 28 U.S.C. 1367(a). VENUE 13. Venue is proper pursuant to 28 U.S.C. 1391(b)(1) and (2), because Defendants maintain their principal places of business within this District, and a substantial part of the events and omissions giving rise to Plaintiffs claims occurred

6 within this District. PARTIES 14. Plaintiff Michael W. Morton is and was at all times relevant to this Complaint a citizen and resident of the State of Texas. He currently resides in Tennessee Colony, Texas, where he is incarcerated at the Mark W. Michael Unit of the Texas Department of Criminal Justice. 15. Plaintiff Patricia A. Stapleton is and was at all times relevant to this Complaint a citizen and resident of the State of Texas. She currently resides in Georgetown, Texas. 16. Defendant John Bradley is the District Attorney of Williamson County, Texas. As the District Attorney, Mr. Bradley has the authority to release and/or agree to the production of all DNA and fingerprint evidence collected in criminal investigations and prosecutions arising out of Williamson County, whether such items of evidence are in the custody of the Sheriff s Department, the Clerk of the Court, or another state or county agency. He is also responsible for determining whether a person convicted of a crime in Williamson County will be provided access to evidence for post-conviction DNA testing and fingerprint analysis upon request. He further has the authority to request that the Texas Department of Criminal Justice (TDCJ) upload eligible DNA profiles and/or fingerprints into the applicable state and federal databanks. At all times pertinent to this case, Mr. Bradley has acted under the color of state law. He is sued in his official capacity. 17. Defendant James R. Wilson is the Sheriff of Williamson County, Texas. As Sheriff, Mr. Wilson is the chief executive engaged in the management of the

7 Sheriff s Department, and is responsible for the maintenance and preservation of all evidence in the department s possession and/or control. At all times pertinent to this case, Mr. Wilson has acted under the color of state law. He is sued in his official capacity. FACTS The Mildred McKinney Murder 18. On the afternoon of November 4, 1980, the murdered body of Mrs. Mildred McKinney was found in her bedroom at A Sherbourne Street in Georgetown, Texas. At the time of her death, Mrs. McKinney was a 73-year-old widow who lived alone in a duplex apartment. Mrs. McKinney s body was discovered by her daughter and son-in-law, Plaintiff Patricia Stapleton and her husband Robert Stapleton, when they arrived to visit her at home that day. 19. Defendants have declined to release police reports and other official documents regarding the murder in response to public records act requests, but the following information is derived from statements made by investigators and other persons with direct knowledge in contemporaneous news reports, as well as from events within Plaintiff Stapleton s personal knowledge: 20. Mrs. McKinney s body was found on the floor area between her bedroom and the adjoining bathroom door. Investigators determined that much of the gruesome attack had occurred while the victim was in her bed, due to the presence of extensive blood spattered above the bed s headboard, all the way up to the ceiling. The cause of death was determined to be a combination of bludgeoning and strangulation. 21. Among the more bizarre and unusual aspects of the crime scene was the fact that the perpetrator had covered Mrs. McKinney s head and chest area with

8 several bulky household items a reclining chair, an end table, and a vacuum cleaner before fleeing the scene. 22. Under the objects piled on top of Mrs. McKinney s body, her nightgown was pulled up to her neck. Her hands and feet were bound. After an autopsy was performed, investigators concluded that Mrs. McKinney had also been sexually assaulted. Upon information and belief, this conclusion was reached based in part upon presumptive chemical tests that were positive for the presence of semen and/or spermatozoa on vaginal, anal, and/or oral swabs collected and preserved from Mrs. McKinney s autopsy. 23. There were no signs of forced entry to the home. A sliding glass door located in the back of the home, however, was found to be unlocked. 24. Investigators did not recover a murder weapon from Mrs. McKinney s home. They did, however, identify and lift several fingerprints and/or handprints from the scene including a bloody fingerprint from the unlocked sliding glass door to her home. 25. Upon information and belief, the victim, her daughter, and her son-inlaw were eliminated as the source of that fingerprint, and the individual who deposited it has never been identified. Several other fingerprints and/or handprints recovered from the scene similarly remain unidentified. 26. The personal discovery of her mother s brutally beaten, violated, and murdered corpse on November 4, 1980, caused Mrs. Stapleton to suffer significant personal distress and emotional trauma. Otis Toole s False Confession to the McKinney Murder 27. In or around January 1984, an alleged serial killer, Otis Toole,

9 confessed to Williamson County Sheriff s Department ( WCSD ) investigators that he committed the McKinney murder. In his confession, he stated that two juvenile accomplices helped him to gain entry into Mrs. McKinney s home, and that he committed the rape and murder after forcing his way inside. Toole was indicted for the murder in January Before Toole was tried for the crime, however, the case against him quickly unraveled. In April 1986, a comprehensive report issued by then-texas Attorney General Jim Maddox concluded that Toole and his notorious crime partner the serial killer Henry Lee Lucas had confessed to a staggering number of murders that they simply could not have committed. The Attorney General s 1986 report documented the results of a detailed official investigation into the whereabouts of Lucas and Toole during an eight year period, as well as their alleged juvenile accomplices in many of these crimes (including records regarding their travel, employment, and school attendance) and compared their whereabouts with the locations of dozens of the hundreds of murders to which they had confessed. The report, in sum, established the physical impossibility of Lucas and/or Toole having committed dozens of these crimes calling into question the integrity of the entire alleged crime spree of the more than six hundred murders to which one or both men had confessed. 29. Mrs. McKinney s murder was one such case. Indeed, in the Attorney General s report, it was determined that during the entire month of November 1980, when Mrs. McKinney was killed, Toole and Lucas were actually in Florida. Moreover, academic records showed that the two juveniles whom Toole claimed helped him to gain entry to the McKinney house were both in school on the day of her murder.

10 30. Although the case against Toole collapsed at least as early as the publication of the Attorney General s 1986 report, it was not until twelve years later on November 14, 1996 that the Williamson County District Attorney s Office finally moved to dismiss the indictment against him. In so doing, the State did not cite the overwhelming evidence that Toole s confession had been false; instead, the motion to dismiss relied only upon the fact that Toole was now deceased. 31. Upon information and belief, at no time since the publication of the Attorney General s 1984 report have Defendants nor anyone else in Williamson County law enforcement contended that Toole s confession to the McKinney murder was true, nor that he or his alleged accomplices actually committed the crime. 32. The McKinney murder remains unsolved to this day. Indeed, when counsel for Plaintiffs filed a public records request in May 2008 with the Williamson County Sheriff s Department, seeking documents collected in connection with the McKinney case, the Sheriff s Department declined to provide access to those records (in a written response dated June 6, 2008), citing, inter alia, the fact that the case remains an open and pending homicide investigation. Upon information and belief (and as set forth in a response to a separate public records act request, filed with respect to documents in the Christine Morton homicide), Defendant Wilson s response to Plaintiffs counsel s request for this information was prepared in consultation with Defendant Bradley and the staff of the District Attorney s Office. McKinney Evidence Available for Testing and Analysis in 2008, and Plaintiffs Efforts to Secure Access to the Evidence 33. Upon information and belief, the Travis County Medical Examiner ( ME ), consistent with that agency s standard practice, collected vaginal, oral, and anal

11 swabs; fingernail clippings; and hair samples from Mrs. McKinney at autopsy, all of which were transferred to the Williamson County Sheriff s Office immediately thereafter. 34. Through counsel, Plaintiffs have attempted, via written public records act requests and other means, to confirm the current location of the aforementioned items of forensic evidence, but have been denied access to that information both orally and in writing, on the ground that the McKinney case remains an open and pending homicide investigation. 35. Upon information and belief, the biological material referenced in paragraph 33 above, as well as the fingerprints and/or handprints collected from the crime scene, have remained in the continuous and secure custody of the Williamson County Sheriff s Office since the time of their collection and transfer in Prior to the death of former Sheriff Jim Boutwell in December 1993, Mr. Boutwell was Plaintiff Stapleton s principal source of information regarding the status of the investigation into her mother s murder. Both prior to and after it was discovered that Otis Toole s confession to the murder was false, Mr. Boutwell repeatedly assured Mrs. Stapleton that law enforcement officials in Williamson County would do everything in their power to determine the identity of her mother s assailant. 37. Based on those assurances, until recently, Mrs. Stapleton was under the reasonable impression that the Williamson County Sheriff s Department and the Williamson County District Attorney s Office had continued to monitor advances in forensic analysis, and that any advances in said technologies since 1986, if applicable to her mother s homicide, had already been utilized by Defendants in an effort to solve the crime. Specifically, Mrs. Stapleton was of the reasonable belief that if materials collected

12 from her mother s autopsy and the crime scene were available and potentially suitable for advanced DNA and fingerprint analysis, defendants would have released the materials for that purpose and/or directed that such analyses be performed. 38. It was not until June 2008 that Mrs. Stapleton learned that (1) items of evidence from the crime may well be available and highly suitable for forensic analysis, and (2) not only had these analyses not yet been performed, Defendants had actively opposed Mr. Morton s requests to conduct such testing and analysis at his own expense. As discussed in greater detail infra, in February 2005, Plaintiff Michael Morton filed a motion for post-conviction DNA testing in Williamson County District Court, seeking, among other relief, permission to conduct DNA testing and fingerprint analysis on the McKinney evidence, at his own expense, in an effort to identify the perpetrator(s) of the McKinney murder. At no time since the filing of that motion did Defendants inform Mrs. Stapleton that Mr. Morton was requesting access to the evidence for this purpose. Nor did Defendants inform Mrs. Stapleton that they had actively opposed Mr. Morton s request to conduct such testing and analysis for the previous three-and-one-half years. 39. Upon information and belief, despite Sheriff Boutwell s assurances to Mrs. Stapleton and despite Defendants recent characterization of the McKinney homicide as open and pending, Defendants have not informed her of any steps they have taken or intend to take to investigate or determine the identity of her mother s murderer since Otis Toole s false confession unraveled in or about In particular, upon information and belief, Defendants have failed to (1) submit the vaginal, anal, and oral swabs; fingernail clippings; hair evidence; and/or clothing recovered from Mrs. McKinney s body to DNA analysis; (2) request that any

13 DNA profiles obtained which are eligible for submission into the federal, state or local DNA databases be uploaded; and/or (3) request that the unidentified fingerprints be analyzed to determine whether they are eligible for searching against federal and state fingerprint databases, and if they are, to request that such searches be performed. 41. Defendants refusal to release these items of evidence for testing and analysis has been knowing and intentional. As discussed infra at paragraphs , access to this evidence has specifically been requested on behalf of Mr. Morton since at least Through counsel, Mr. Morton has asked Defendants to release this evidence on the theory that comparative analysis of evidence from both the McKinney and Morton homicides has the potential to exonerate him by revealing a common third-party perpetrator. Yet Defendants have refused to permit such testing and analysis to proceed. 42. Most recently, by letter dated July 18, 2008, Plaintiffs counsel again wrote to Defendant Bradley to request access to the aforementioned evidence. This time, the request was made directly on Mrs. Stapleton s behalf and as her counsel, although the substance of the request to was identical to that made by Mr. Morton more than three years earlier. Again, counsel offered to bear all costs of the DNA and fingerprint analyses at issue. 43. Assistant District Attorney Doug Arnold wrote back to counsel on July 25, 2008, stating that Defendant Bradley s office was not yet able to officially respond to Mrs. Stapleton s request. Mr. Arnold re-asserted Defendants longstanding, general claim that the investigation into Mrs. McKinney s murder was ongoing, and further denied what he characterized as the insinuation that we have stonewalled the investigation into Mrs. McKinney s death. Again, however, Defendant Bradley, through

14 his assistant, simply refused to state whether or not Defendants have performed any DNA testing and/or fingerprint analysis in the case, or would finally allow such tests to be performed at Plaintiffs expense. The Christine Morton Murder 44. On the afternoon of August 13, 1986, the murdered body of Christine Morton ( Christine ) the wife of Plaintiff Michael Morton ( Michael ), and mother of the couple s three year old son, Eric was found in the bedroom of the Mortons home on Hazelhurst Drive in Georgetown. Christine s body was discovered by a neighbor who entered the home after seeing the Mortons young son wandering outside, unattended, shortly after noon. 45. At the time of her murder, both Christine and Michael Morton were middle-class, working parents. They had recently purchased their own home, and both were employed full-time. Like many young parents, they arranged their shifts to alternate child-care responsibilities for their young son. In August 1986, Michael left early (between 5 and 5:30 a.m.) for his job as a manager at Safeway Supermarkets, before Christine awoke. He ended his day around 2:00 p.m., in order to pick up Eric from day care and spend afternoons with him. Christine was responsible for dropping off Eric at day care at approximately 8:00 a.m., before heading to her job at a local insurance company for the remainder of the day. 46. According to time cards and the accounts of co-workers, on the day of his wife s murder, Michael clocked in at Safeway at his usual time, 6:00 a.m., and left at his usual time, 2:10 p.m. Christine, however, did not arrive at day care to drop off Eric that morning. When Michael arrived to pick up his son that he learned that Christine had

15 not dropped off Eric, nor had she called to explain her absence. After calling his home number and speaking briefly to then-sheriff Boutwell, who was at the scene, Michael raced home and was informed that his wife s murdered corpse had been found in their bedroom that afternoon. 47. The Morton crime scene bore a number of marked similarities to the 1980 murder of Mildred McKinney, which occurred six-tenths of a mile away from the Mortons home. Like Mrs. McKinney, Christine was found in a heavily bloodstained bedroom that bore hallmarks of a violent and protracted struggle, with her blood spattered across the walls adjacent to the bed. Like Mrs. McKinney, Christine suffered massive blunt trauma from repeated blows to her head and facial area. And like Mrs. McKinney, the assailant who murdered Christine Morton had for some reason piled bulky household objects in Christine s case, a Samsonite suitcase and large wicker basket, as well as bedding on top of the corpse s head and chest area before fleeing the scene. Both victims were also found with the nightgowns they had been wearing pulled up over their waists. 48. In addition to the bludgeoning of the victims and bizarre staging of their corpses, the Morton crime scene bore other similarities to Mrs. McKinney s. Both master bedrooms were ransacked and in total disarray. No murder weapon was found at either scene. Nor did investigators find any sign of forced entry. And in each home, a sliding glass door was found to be unlocked and containing unidentified prints when the victim s body was discovered. (The Morton home actually had two sliding glass doors that led to the same back yard: one in the master bedroom where Christine was murdered, and one on the back patio. The latter was found to be unlocked.)

16 49. As they had done with Mrs. McKinney, WSCD investigators and crime scene technicians transferred Christine Morton s corpse, along with her nightgown and the sheets from the Mortons marital bed, to the Travis County Medical Examiner s Office. After the autopsy, various swabs and hairs from the body, Christine s fingernail clippings, and the clothing/bedding recovered were transferred to the Texas Department of Public Safety ( TDPS ) crime laboratory for further analysis. 50. Finally, as at the McKinney crime scene, there were several fingerprints and/or handprints of value recovered by investigators which, upon further analysis, were found to be unidentified that is, to come from a source other than Christine, Michael, or Eric Morton. These included, inter alia, (a) two prints collected from the frame of the unlocked, sliding glass door located between the Mortons breakfast room and their backyard, (b) one print from the interior door to the master bedroom, and (c) one print from the suitcase piled on top of Christine s corpse. 51. Upon information and belief, the original lifts of the prints recovered from the Morton crime scene have been in the continuous and secure custody of the WCSD since their collection. In addition, copies of these prints were entered into evidence at Mr. Morton s trial, and remain in the custody of the Clerk of the Williamson County District Court. 52. In addition to the fingerprint evidence, the WCSD also took into evidence a blue, blood-stained bandana, found on a curb near a semi-abandoned construction site behind the Mortons home on the afternoon of the murder. Upon information and belief, the bandana was located less than 100 feet from the back of the Mortons home, and was first discovered by Christine s brother (who, like other family

17 members, had arrived at the home shortly after hearing the news of her death). 53. Given the gruesome and bloody nature of the crime, Christine s brother immediately recognized the potential significance of the bandana and alerted WCSO investigators to his discovery. 54. The WCSO promptly took the bandana into evidence. Subsequently, WCSO investigators forwarded it to the TDPS crime laboratory, where it was vouchered as AEIII #4. Upon further analysis, TDPS performed serological analysis which confirmed that the bandana was, in fact, stained with human blood, but was unable to determine the blood type of the donor(s). Furthermore, TDPS reported that a single strand of human hair was recovered from the bandana and, upon microscopic analysis, concluded that this hair did not come from Christine Morton or Michael Morton. 55. On January 9, 2003, in response to a request from the office of Mr. Morton s counsel, the Evidence Department of the WCSD confirmed in writing that it still has custody of the bloodstained bandana recovered from the Morton crime scene (stored under Property ID #115183) as well as various hair samples and slides containing hairs, which, upon information and belief, includes the hair recovered from the bandana by DPS. The WCSD has informed Plaintiffs that it will not release these items for testing or analysis without a court order and/or the consent of Defendant Bradley. Events Preceding Christine Morton s Murder, and the State s Speculative Sexual Rage Theory 56. To his shock and horror, six weeks after his wife s murder, a grieving Michael Morton found himself charged with this heinous crime. The case was tried to a jury in February 1987, under the theory that Michael had killed Christine in a sexual rage the previous evening. Specifically, the prosecution argued that when she declined to

18 have sexual relations with him after the couple went out to dinner to celebrate Michael s birthday, he beat her to death with a blunt object and proceeded to masturbate over her corpse, then spent the night with her decomposing body before leaving for work (and their young son alone in the house) the next morning. Michael, who testified in his own defense, maintained that she was alive when he left for work that morning, and must have been murdered by an unknown intruder thereafter. 57. Neither Plaintiff Michael Morton nor the jury that convicted him were aware of, nor presented with, any evidence of the Mildred McKinney murder. Nor was the jury asked to consider whether the marked similarities between that crime and the murder of Christine Morton raised a reasonable inference that both murders may have been committed by the same third-party intruder. 58. The State s sexual rage theory was based on a patchwork of speculative, circumstantial evidence that was riddled with logical contradictions. Moreover, it was buttressed by the testimony of at least two forensic experts whose analyses have been roundly discredited by post-conviction developments (see paragraphs and 101, infra). And while the state-of-the-art DNA and fingerprint analyses requested in this action unavailable at the time of trial have the scientific potential to provide conclusive evidence that a third-party intruder in fact committed the crime, the undisputed events that preceded the murder demonstrate just how vulnerable the State s trial evidence is to a rebuttal by modern science. 59. Michael and Christine Morton were married in 1979, having dated since 1974, when they were college students at Stephen F. Austin University in Nacogdoches, Texas. When the couple moved to Austin, Michael, who had majored in

19 Business Administration, worked at Safeway Supermarkets, and Christine worked at Metropolitan Insurance. 60. At the time of Christine s death in 1986, the Mortons had been married for seven years. Their marriage was, by all reports, one of equals. Christine was a midlevel manager at Allstate Insurance and had recently been promoted. Michael was a department head at a Safeway Store in Austin. He had also founded his own small industrial cleaning business, Hydroblast, which he operated on nights and weekends, and employed several subcontractors. 61. The Mortons shared family responsibilities also included the medical problems that plagued their young son, Eric, for much of the first two and one-half years of his life. Gastrointestinal surgery required Eric to spend three weeks in the neonatal intensive care unit immediately after birth; soon thereafter, he was diagnosed with a congenital heart defect. His condition required frequent medical care, and made active play difficult and dangerous. In June 1986 two months before Christine s murder -- Eric was cleared to have open heart surgery. The surgery was successful and at last allowed him to run and play like a normal child. 62. Despite the stressors of Eric s illness, the Mortons marriage was a happy one, and often marked by teasing, joking and banter. Friends attested at trial that their back-and-forth was always playful and in jest. Not a single witness at Michael s trial -- of the more than two dozen called by both sides, and the many others interviewed by police -- had ever seen, or even heard about, any incident of violence in the couple s twelve-year relationship. 63. August 12, 1986 the day before Christine s murder -- was Michael s

20 32 nd birthday. That evening, the family went to the City Grill in Austin at around 7:30 p.m. for a birthday dinner, leaving the restaurant at about 9:21 p.m. 64. When the family got home, Michael changed Eric into his pajamas. After Michael and Christine changed into their nightclothes, they all watched television together in the living room, where Christine ate some cookies. When Christine put Eric to bed, Michael retrieved an adult erotic video, entitled A Handful of Diamonds, that the couple had selected and rented together on Monday night. They lay on the floor together and watched the beginning of the movie. 65. At trial, the prosecution argued that Christine then told Michael she was too tired to make love, and went to bed -- causing Michael to fly into a sudden, homicidal rage, and beat her to death with a blunt object. According to the prosecution, Michael then staged the crime scene to look like a burglary, while he went to work the next day as if nothing was amiss, leaving his wife s bloody her body in their bed and their toddler alone in the house. 66. Michael s account consistently given to investigators at the scene and in his trial testimony was quite different. He described how Christine, tired from her day and their dinner out, fell asleep soon after the beginning of the video. Michael, disappointed, then went to sleep alone in the bedroom. Christine later came to bed, kissed him, and said, Tomorrow night, before they both went to sleep. 67. Michael testified that he awoke the next morning at 5 AM, his usual time. After showering, shaving and dressing, he left a note for Christine in their bathroom, which was recovered by crime scene technicians that afternoon, and read as follows:

21 Chris, I know you didn t mean to, but you made me feel really unwanted last night. After a good meal, we came home, you binged on the rest of the cookies, then with your nightgown around your waist and while I was rubbing your hands and arms, you farted and fell asleep. I m not mad or expecting a big production. I just wanted you to know how I feel without us getting into another fight about sex. Just think how you might have felt if you were left hanging on your birthday. I L Y [signed] M. 68. Michael clocked into work at his usual time, 6:00 a.m. Throughout the day, according to co-workers, he exhibited no behavior that was unusual or out of the ordinary. 69. Shortly after noon, Elizabeth Gee, the Mortons next-door neighbor, was working in her yard when she saw three-year-old Eric Morton alone outside. Ms. Gee went to where Eric was sitting, near the front door, and entered the unlocked Morton home. She called out Christine s name, but got no answer. She subsequently found Christine s corpse in the master bedroom, and called Michael stopped to pick up Eric at about 3:30 pm., but was told that Christine had not brought him or called. Michael immediately called home. Sheriff Boutwell answered the phone and spoke to him briefly. Michael left immediately, arriving home at about 3:40 p.m. 71. Michael came home to find his house a crime scene. He asked, Is my little boy okay? Sheriff Boutwell told Michael that Eric was fine. Michael then asked, How about my wife? The sheriff told him [Christine] was dead. Michael explained at trial why he had asked about Eric first: that he knew something must be wrong with Christine, because she had failed to drop off Eric at the babysitter s and had not called him all day. 72. Michael then asked Sheriff Boutwell, Is it murder? Sheriff Boutwell

22 later testified that Michael asked if she was shot or beaten, but that statement was not recorded in any of the police reports or in Sheriff Boutwell s notes. Michael went into the living room. A WCSD officer read him his Miranda rights and questioned him for the next two hours. 73. According to Sheriff Boutwell, Michael cooperated with the investigators in every way. He recounted his birthday dinner the night before and his whereabouts that day. He also told investigators how Christine had fallen asleep while they were watching an adult movie the previous night, admitted his disappointment at that fact, and confirmed that he had written the note in the bathroom. According to Michael, when he left the house between 5:30 and 5:40 a.m. to go to work, Christine was sleeping soundly in their bed. Michael immediately gave consent to the investigators to search his house and his car. The next day, he submitted samples of his saliva, blood and hair. 74. The Mortons friends, neighbors, and relatives gathered at the house that afternoon and in the coming days. After the WCSD left, friends helped Michael clean the house, including the bloodstained bedroom, as best they could, before bringing in a crew to repaint it. Michael s parents, who lived out of town, arrived later that week to be with him and assist with caring for Eric. Michael was able to take a two-week leave of absence from work, and when he returned, cut back on his work hours to accommodate his new responsibilities as a single parent. 75. Six weeks later, Michael was arrested and charged with the crime. He was permitted to remain on bail and care for Eric until trial, which occurred in February Michael was prosecuted and convicted under a theory that he flew into

23 a sudden rage, and killed his wife of seven years, with sex on his mind. The prosecution alleged that Michael beat [Christine] to death because she turned him down, then masturbated on her body. The prosecution further claimed that the adult movie the couple had started to watch revealed the sort of rage and state of mind [Michael] was in that evening. 77. At trial, the State sought to explain the bizarre configuration of the suitcase, basket and bed linens on top of Christine s head by arguing that Michael had covered her out of shame because he [didn t] want to see what he had done. The prosecution also argued that Michael staged a crime scene to make it appear to be a burglary, showing the jury a portion of the video, the plot of which concerned an intruder breaking into a house and having sex with the woman who lived there. This, according to the prosecution, implanted the so-called fake burglary idea in Michael s mind as a way to cover up the killing. 78. The prosecution argued that Michael s note to Christine on the bathroom mirror was similarly calculated i.e., to make it appear that Christine was still alive when he left for work that morning. Yet the State did not, and could not, explain the illogic of crafting such a note for this purpose: that is, why Michael would have described how Christine had declined to have sex with him the night before, and his own feelings of being unwanted and left hanging on [his] birthday, if the note s purpose was to divert suspicion from himself. 79. In further support of its sexual rage/masturbation theory, the prosecution offered the testimony of two forensic examiners from TDPS. The first and most damning witness was Donna Stanley, a TDPS serologist. She told the jury that a

24 semen stain recovered from the bedsheets on which Christine was found was, in her determination, a neat stain specifically, one that she had tested and found contained only the proteins in seminal fluid, lacking any contribution from the victim s vaginal cells. Ms. Stanley s findings provided critical support for the prosecution s theory that the stain was left by masturbation, or straight ejaculation, as opposed to an earlier act of marital sexual intercourse in the bed that would have contained a mixture of male and female cells. (This analysis, however, has since been disproven by subsequent testing.). 80. Second, the State offered the testimony of Juan Rojas, a TDPS forensic chemist who examined three hairs recovered from Christine s corpse (described variously, in evidentiary records, as either in or on her hand).. Mr. Rojas testified that one of the hairs, a pubic hair, exhibited characteristics that were microscopically consistent with Michael s own. 81. The prosecution argued that the jury should infer from the combination of Ms. Stanley s and Mr. Rojas testimony that Michael s semen was on the sheet, and his pubic hair in her hand, because he had masturbated on her corpse after committing the murder, even going so far as to contend that he had used [her] hand to do so. 82. The defense characterized this purported link between the biological evidence and the State s masturbation theory as absurd. Specifically, the defense argued that even if these analysts assessment of the biological evidence was correct, the results were of no consequence. Both items were recovered from the marital bed, where, as counsel noted, one would quite reasonably expect to find Michael s own hair and semen. The State s analyst could not state when the semen stain(s) on the bed were deposited. The hair, counsel argued, could have been on the sheets or Christine s clothing well in

25 advance of the murder, then transferred to her hand during a protracted and bloody struggle with the killer. 83. Lastly, the prosecution offered the testimony of former Travis County Medical Examiner Roberto Bayardo, in an effort to establish that the victim s time of death occurred before Michael left for work. Dr. Bayardo hypothesized that Christine s death occurred no later than 1:15 a.m. on August 13 th -- based on nothing more than an examination of her stomach contents at autopsy. 84. However, Dr. Bayardo substantially qualified his estimate by making the remarkable concession that it was not a scientific statement. He further conceded that there is no scientific precise method to determine the time of death. In addition, it was revealed that Dr. Bayardo had originally told investigators that Christine was killed at any time between 1 a.m and 6 a.m. an assessment that would have been fully consistent with Michael s claim that Christine was alive when he left for work at 5:30 am. 85. The defense presented two pathology experts in rebuttal on the timeof-death issue. Both opined that Dr. Bayardo s (amended) estimate was flawed and that Christine could well have been killed hours after Michael left for work. Dr. Linda Norton is a board-certified forensic pathologist who had been employed by the Dallas, Jefferson and Bexar County Medical Examiner s Offices before beginning a private practice. According to Dr. Norton, the tremendous individual variability in the gastric emptying process established the near-impossibility of fixing a precise time of death based on stomach contents, as Dr. Bayardo had claimed. Dr. Norton opined that Christine s death could have occurred up to 12 hours or more after having eaten, i.e., as late as 9 or 10 A.M., long after Michael arrived at work.

26 86. Similarly, Dr. Vincent DiMaio, Chief Medical Examiner for Bexar County, testified that contrary to Dr. Bayardo s time-of-death estimate, Christine could have died anywhere within a broad range of time between two and ten hours after last having eaten. 87. Despite the admitted limitations of and contradictions in Dr. Bayardo s time-of-death estimation, prosecutors relied heavily upon it in urging the jury to convict Michael. In summation, the State characterized Dr. Bayardo s testimony as the best medical science can bring us... [and it] shows this Defendant is a killer. 88. Michael testified in his own defense. He gave a detailed account of how the family had spent the evening of his birthday, and maintained that his wife and son were both sleeping soundly when he left for work the next morning at 5:30. His defense counsel hotly disputed the prosecution s theory of the case and alleged motive and argued, in the alternative, that Christine must have been killed by a deranged, unknown intruder, who entered the home through an unlocked door and killed Christine while she slept. 89. Specifically, trial counsel hypothesized the route through which an intruder could have surveyed, entered and quickly exited the scene without detection. The Mortons backyard abutted a dense, wooded area, and was out of the line of vision of other neighbors homes and yards, as well as the street. The Mortons home was separated from the back wooded area only by a privacy fence one that an intruder, fleeing the scene, could have easily scaled in seconds. On the other side of the fence, a bulldozed pathway bordered the wooded area, providing a means of quick escape. 90. In addition, a semi-abandoned residential construction site was located

27 in the area behind the Mortons house. Neighbors reported that at the time of the murder, construction on the site was sporadic, with frequent turnover of workers. The area was littered with trash and debris, as well as assorted wooden two-by-fours and other construction materials. 91. The defense s hypothesis that the intruder canvassed the home and then fled the scene through this back, wooded area was supported not just by geography, but evidence recovered by the WCSD. Crime scene technicians found an unidentified footprint in the Mortons yard, next to the back fence. At autopsy, wood chips of undetermined origin were recovered from Christine s hair and skull. These chips were found to come from a piece of old, weathered wood of the sort scattered throughout the construction site behind the Mortons home. And finally, as noted supra, the WCSO collected and preserved a single, bloodstained item the bandana, containing a human hair from a construction site behind the Mortons home. 92. On February 17, 1987, Mr. Morton was convicted of murder and sentenced to life in prison. He is presently serving that sentence. Post-Conviction Proceedings: Rebuttal of Key Forensic Evidence 93. Forensic DNA testing was unavailable at the time of Michael Morton s 1987 trial. Since its earliest development, however, Mr. Morton has diligently sought access to emerging DNA technologies in an effort to rebut the State s trial evidence and, more fundamentally, to determine whether the DNA profile of a third-party perpetrator is present on critical items of evidence from the scene of his wife s murder. 94. In 1991, counsel for Mr. Morton secured a court order to permit testing on the semen-stained portion of the bedsheet from the scene (e.g., the stain that the

28 prosecution had argued at trial was a neat stain and the product of Plaintiff s alleged masturbation during the murder). At that time, the early-generation DNA testing available RFLP-DNA testing required significantly larger quantities of biological material to obtain an interpretable result than can be achieved through today s more sensitive methodology. Two laboratories efforts to obtain an RFLP-DNA profile from the bedsheet stain (in 1991, at the Tarrant County Medical Examiner s Office, and in 1994, at a private laboratory called GeneScreen) were unsuccessful. 95. The late 1990s witnessed significant advances in DNA technology, and through counsel, Mr. Morton successfully obtained an order permitting him to re-test the bedsheet stain. This time, Forensic Science Associates ( FSA ) laboratory obtained a Short Tandem Repeat (STR) DNA profile from the stain. The results directly contradicted a critical portion of the State s trial evidence. For rather than yield DNA from Plaintiff alone, as the State s expert had asserted with respect to the cellular composition of this allegedly neat semen stain, the tests revealed that the stain was actually a mixture of DNA from Plaintiff and his wife with his wife s epithelial (vaginal) cells substantially outnumbering the quantity of sperm cells in the stain. 96. FSA s DNA testing report dated May 19, 2000, established that the cellular composition of this mixed stain was directly contrary to the prosecution s masturbation theory at trial. These DNA tests yielded approximately 5 to 10 times more female DNA from these stains than DNA from spermatozoa. Thus, FSA s laboratory director concluded in his report, [t]he prosecutorial assertion that these stains originate from masturbation is completely contradicted by the scientific evidence. 97. Following receipt of FSA s report, Mr. Morton s trial counsel, who

29 also served as lead counsel for the DNA proceedings in the 1990s, recused himself from the case, concerned about a potential conflict of interest in post-conviction proceedings in light of the 2000 DNA results. 1 New, undersigned counsel subsequently conducted a full review of the case, consulted additional experts regarding the forensic evidence collected from the scene, and thereafter requested the State s consent to conduct additional DNA testing and fingerprint analysis. 98. Specifically, in early 2005, counsel for Mr. Morton contacted Defendant Bradley by telephone and requested an opportunity to present to him the merits of additional DNA testing and fingerprint analysis (to be conducted at counsel s sole expense), from both the Morton and McKinney cases, whose similarities counsel had discovered through independent investigation. Defendant declined to meet with counsel or discuss the matter until such time as a motion for DNA testing was filed in the Williamson County District Court pursuant to Texas DNA testing statute. 99. Undersigned counsel filed said motion in February 2005, seeking DNA testing and fingerprint analysis on various items of evidence from both the Morton and McKinney crime scenes, pursuant to Chapter 64 of the Texas Code of Criminal Procedure and the District Court s inherent discretionary authority. Specifically, Mr. Morton requested permission of the Court to conduct DNA testing, at his counsel s expense, on (1) vaginal, anal, and oral swabs, hair samples, and fingernail clippings collected from the Christine Morton autopsy; (2) Christine Morton s nightgown, and (3) 1 Specifically, counsel became concerned upon receiving the report of the DNA test results that Mr. Morton might have a viable post-conviction claim against him for ineffective assistance of counsel because he had failed to subject the bedsheet stain to an independent microscopic examination at the time of trial. Co-counsel at the Innocence Project subsequently recruited the undersigned counsel from Cooper & Scully to serve as new lead