IN THE CRIMINAL DISTRICT COURT NO. 3

OF DALLAS COUNTY, TEXAS

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           EX PARTE                )
                                   )      Writ No. W96-39973-J
                                   )      (Trial Court No. F96-39973-J)
      DARLIE LYNN ROUTIER          )
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APPLICANT DARLIE LYNN ROUTIER’S RENEWED MOTION
FOR TESTING OF PHYSICAL AND BIOLOGICAL EVIDENCE
AND REQUEST FOR AN EVIDENTIARY HEARING

Applicant Darlie Lynn Routier, through undersigned counsel, respectfully urges the Court to delay final action on the above-referenced writ of habeas corpus until outstanding issues of material fact can be addressed through an evidentiary hearing. Applicant has several motions pending before this Court which relate both to Applicant's effort to resolve critical issues of disputed fact and to her right to effectively investigate her claim of innocence. Specifically, the following motions are outst anding at this time: Applicant Darlie Lynn Routier's Second Renewed Request for Access to State's Evidence ("Second Renewed Request"), filed July 29, 2003; Applicant Darlie Lynn Routier's Motion for Forensic DNA Testing ("Motion for DNA Testing"), filed November 4, 2003; and Applicant Darlie Lynn Routier's Renewed Motion for an Evidentiary Hearing, filed November 6, 2003. In addition, new fingerprint evidence continues to emerge that supports Applicant's innocence claim by demonstrating the presence of an unidentified intruder in Applicant's home on the night of June 6, 1996. Applicant urges the Court to address these outstanding motions and issues so that she may have access to the evidence necessary to support her claims for relief. Furthermore, App licant requests that the Court schedule an evidentiary hearing following examination and testing of this evidence so that Applicant may present evidence on the issues of disputed fact that remain in this case.

A. Absent Forensic Testing of Physical Evidence in the State's Possession, Applicant is Unable to Fully and Adequately Present Her Claims for Post-Conviction Relief.

Applicant continues to seek access to certain physical evidence in the State's possession in order to conduct microscopic, chemical and other forensic tests on that evidence. Preliminary analysis indicates that testing of this evidence – which inc ludes critical items such as the night shirt Applicant was wearing on the night of the murders and the fibers alleged to have come from the window screen in Applicant's garage – will support Applicant's claim of actual innocence. See First Applica tion for Post-Conviction Writ of Habeas Corpus Pursuant to Texas Code of Criminal Procedure Article 11.071 ("First Application") Pt. I. Due to the inadequate representation by her trial counsel, Applicant was denied the opportunity to conduct this exculp atory testing prior to trial, and as such has never been able to fully develop these claims.

Article 11.071 of the Texas Code of Criminal Procedure compels examination and testing of this evidence. Section 3(a) provides that "[o]n appointment counsel shall investigate expeditiously, before and after the appellate record is filed in the court of criminal appeals, the factual and legal grounds for the filing of habeas corpus." Tex. Code Crim. P. art. 11.071 § 3(a). Applicant's appointed counsel has identified, and continues to identify, evidence that supports Applicant's actual innocence clai m and contradicts the State's theory of a staged crime scene.

Applicant has submitted at least four motions in support of her request for access to this evidence so that the evidence may be submitted for forensic testing. See Applicant's Second Renewed Request (incorporating three previous motions for acc ess to evidence). To date, the Court has not ruled on Applicant's Second Renewed Request, nor has Applicant been provided any meaningful access to the requested evidence. Applicant respectfully requests that the Court provide her with access to such evi dence, and allow time to perform the requested testing, in order to demonstrate the merits of her claims for relief as set forth in her First Application.

B. Absent Forensic Testing of DNA Evidence in the State's Possession, Applicant Is Unable to Fully and Adequately Present Her Claims for Post-Conviction Relief.

Also pending before the Court is a separate but related proceeding for forensic testing of DNA evidence in the State's possession pursuant to Chapter 64, Article 64.01 of the Texas Code of Criminal Procedure. See Motion for DNA Testing. Ap plicant is entitled to testing of this biological evidence, which includes blood stains, limb hairs, pubic hairs, and saliva samples, in order to corroborate her claim that she was not the perpetrator of the crime for which she was convicted. Id., Pt. II. Applicant believes that DNA testing of this biological evidence will prove exculpatory and that, had such evidence been produced at trial, Applicant would not have been convicted. The Court has taken no action on the Motion for DNA Testi ng, even though the statute requires the Court, on receipt of the DNA request, to order the State to deliver the requested evidence or explain in writing why it cannot be delivered to the Court for testing. Tex. Code Crim. P. art. 64.02(2). Applicant re news her request to the Court to compel the State's production of this evidence so that forensic DNA testing may be conducted in conjunction with the habeas corpus proceeding.

C. New Fingerprint Evidence in Applicant's Case Supports Her Claim of Actual Innocence and Warrants Consideration Through an Evidentiary Hearing.

Forensic fingerprint tests conducted after Applicant's trial continue to demonstrate that Applicant is innocent of the crime for which she was convicted. In her First Application, Applicant identified a bloody fingerprint taken from her living roo m coffee table that did not belong to any of the persons known to have been in Applicant's household. In addition to this fingerprint from the coffee table, two separate prints from Applicant's utility room door have been analyzed by forensic print exami ners, who have excluded Applicant as the source of these prints. Examination of fingerprints from the utility room door is critical to Applicant's case, as it was this door – the door leading from the kitchen of Applicant's home to the garage – through w hich Applicant believes an unknown intruder fled after attacking her and her two sons. Despite repeated requests, the Court has never granted the evidentiary hearing necessary to investigate and evaluate this evidence.

The first print lifted from the utility room door is a patent bloody fingerprint. Forensic fingerprint analyst Glenn Langenburg has positively excluded Applicant as the source of this print. See Exhibit 1, Report No. 1 of Glenn M. Langenburg; see also Affidavit of Glenn M. Langenburg (Exhibit 1 to Second Renewed Request, filed July 29, 2003). Although the bloody fingerprint bears insufficient detail to identify its source, there is sufficient detail in the print to definitively exclude Applicant. Id. Applicant's exclusion as the source of this print indicates that an unknown third party not only deposited this print, but deposited it in blood, on the night of the murders.

The second print taken from this door is a latent print located below the patent bloody fingerprint. Latent print consultant Robert Lohnes analyzed this print in June 2003 and concluded that it matched the second finger joint of Darin Routier on the m iddle finger of the left hand. See Exhibit 2, Report of Robert C. Lohnes. This report was submitted to the Court as Exhibit 2 to Second Renewed Request.

Since the filing of Applicant's Second Renewed Request, Glenn Langenburg has also analyzed the second, latent print from Applicant's utility room door. Based on the prints available to him for comparison – which include the fingerprints, finger joints , and upper palm areas for both Applicant and Darin Routier – Langenburg was unable to match the latent fingerprint. Exhibit 3, Report No. 2 of Glenn Langenburg. Unless this fingerprint is from an area other than a finger joint or the upper palm, as bot h Langenburg and Lohnes have concluded, Langenburg's analysis excludes both Applicant and her husband Darin Routier as the source of this print. The discovery of this fingerprint from an unknown individual substantiates the growing body of evidenc e in support of Applicant's claim that she and her sons were attacked by an unknown intruder who fled the scene through her utility room door and into her garage.

Applicant acknowledges that Lohnes' and Langenburg's analyses differ as to the source of the latent print on the utility room door. Both Lohnes and Langenburg, however, have positively excluded Applicant as the source of this print. Under either scen ario – whether the print belongs to an unknown intruder or to Darin Routier – Applicant's claim of innocence is supported. See Second Renewed Request, Pt. A. Based on Langenburg's conclusion, it is necessary to consult a neutral third expert in t he field of forensic print examination to resolve this discrepancy.

In addition, Langenburg currently is conducting a second examination of the bloody fingerprint on the utility room door to determine whether Darin Routier can also be excluded as the source of this print. If, as Applicant expects, Darin Routier is not the source of this print, Applicant definitively will have demonstrated that an unknown third party deposited two separate fingerprints – one of them in the victims' blood – while fleeing the scene on the night of the murders.

In order to fully develop the grounds for her claim of post-conviction relief, Applicant must be given the opportunity to examine newly-discovered evidence in her favor and to present this evidence before the Court. In light of the fingerprint evidenc e introduced in Applicant's First Application and the evidence that continues to emerge in this case, Applicant renews her request for an evidentiary hearing.

CONCLUSION AND PRAYER

For the reasons set forth above, Applicant respectfully urges this Court to allow her to fully develop the factual claims that support her First Application, as is Applicant's right under Article 11.071 of the Texas Code of Criminal Procedure. In order to develop her claim of innocence, Applicant must be granted access to the physical and biological evidence set forth in her Second Renewed Request and Motion for DNA Testing. Furthermore, resolution of Applicant's outstanding factual issues cannot be achieved without an evidentiary hearing. Applicant requests that an evidentiary hearing be scheduled to resolve disputed factual issues following Applicant's opportunity to conduct additional fingerprint analysis and forensic testing on the previousl y-requested evidence in the State's possession.

 

 

DATED: January 23, 2004.

Respectfully submitted,

OF COUNSEL:

Michael F. Flanagan

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue N.W.

Washington, D.C. 20036

(202) 955-8500

Richard A. Smith

LYNN, TILLOTSON & PINKER, LLP

750 N. St. Paul, Suite 1400

Dallas, TX 75201

(214) 981-3800

__________________________________
Richard Burr

906 E. Jackson

Hugo, OK 70743

Counsel for Darlie Lynn Routier

 

IN THE CRIMINAL DISTRICT COURT NO. 3

OF DALLAS COUNTY, TEXAS

 

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EX PARTE )

) Writ No. W96-39973-J

) (Trial Court No. F96-39973-J)

DARLIE LYNN ROUTIER )

)

____________________________________)

PROPOSED ORDER

Upon consideration of Applicant Darlie Lynn Routier’s Renewed Motion for Testing of Physical and Biological Evidence and Request for an Evidentiary Hearing, and for good cause shown, it is hereby

ORDERED that this motion be GRANTED. In conjunction with this motion, the Court hereby GRANTS Applicant Darlie Lynn Routier's Second Renewed Request for Access to State's Evidence, filed July 29, 2003; Applicant Darlie Lynn Routier's Motion for Forens ic DNA Testing, filed November 4, 2003; and Applicant Darlie Lynn Routier's Renewed Motion for an Evidentiary Hearing, filed November 6, 2003. An evidentiary hearing will be scheduled by subsequent order.

_________________________ ______________________________

DATE The Honorable Robert Francis

CERTIFICATE OF SERVICE

I hereby certify that I caused a copy of Applicant Darlie Lynn Routier’s Renewed Motion for Testing of Physical and Biological Evidence and an Evidentiary Hearing to be served by first-class U.S. mail, postage prepaid, and facsimile upon the follow ing on January 23, 2004:

John R. Rolater, Jr. (SBN 00791565)
Assistant District Attorney
Appellate Division
133 N. Industrial Blvd. LB-19
Dallas, Texas (7520704399
Tel. (214) 653-3625
Fax (214) 653-3643

 

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Richard A. Smith