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TELECOPY TRANSMITTAL

To: Dr. William R. Maples Company: University of Florida From: Thomas R. Kline Telecopy No.: (904) 392-3698 File No.: 1390/56869 Confirmation No.: ------Date: November 11, 1993 ------~~------Time: ------Total Number of Pages: (Including Cover Sheet) -'J-1------

COMMENTS/SPECIAL INSTRUCTIONS

Dr. Maples: First draft, for your review and comment. tk and lc

Sent By:------Confirmed By:------Should you have any problems receiving this Telecopy, please call (202) 662-2768. VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF CHARLOTTESVILLE

) Inre: ) ) MARINA BOTKIN SCHWEITZER , ) ) Petitioner, ) ) v. ) Case No. 8021 ) MARTHA JEFFERSON HOSPITAL. ) ) Respondent. ) )

MEMORANDUM IN SUPPORT OF PETITION TO INTERVENE OF THE RUSSIAN NOBILITY ASSOCIATION, INC.

The Russian Nobility Association In America, Incorporated, commonly known as the Russian Nobility Association, Inc. (the "Association") submits this Memorandum in support of its Petition to Intervene in this action. The Association submits that it has an interest in these proceedings·- an interest that is not protected by any of the parties before the Court -- and that intervention is necessary to allow the Association to protect its interest. For these reasons, the Association asks that its Petition of Intervene be granted. BACKGROUND This matter concerns access to blood and tissue samples taken from a woman known as Anna Anderson Manahan (the "Tissue Samples"), a woman who throughout her life claimed to be Anastasia Romanov, Grand Duchess of Russia. The Tissue Samples were taken from Ms. Manahan at the time of a medical procedure . 2.

performed on her in 1979 at Martha Jefferson Hospital ("Hospital"), and have been maintained by the Hospital ever since. See Martha Jefferson Hospital's Answer to

Petition in Equity ~ 5. The original petitioner, Marina Botkin Schweitzer asks the Court to release the Tissue Samples to her, so that DNA analysis can be conducted on them at the Aldermaston Laboratory in Britain. Petition ~~ 13, 17. In her Petition, Schweitzer alleges that "the Russian government retained and authorized" Aldermaston "to provide and conduct scientific procedures, under mandate'' in order to identify human remains found in Ekaterinberg that are believed to be the bodies of

Czar Nicholas II, his family, and others, Petition~ 2. No such mandate, however, has been filed with the Court nor was it produced at the hearing on November 1, 1993. Schweitzer does not claim to be related to Ms. Manahan, nor does she claim to be related to Anastasia Romanov, Grand Duchess of Russia. She does assert that she is "the granddaughter of Dr. Eugene S. Botkin, personal physician to Nicholas II, Emperor of Russia" and that "Dr. Botkin was murdered with the

Emperor and members of the imperial family." Petition~ 1. Petitioner Schweitzer further asserts that she,has brought her petition to help her determine whether Ms. ¥anahan was Anastasia Romanov, because to do so "would assist in the more certain identification of ... Petitioner's grandfather, Dr. Botkin." Petition~ 4. Schweitzer's petition is supported by the "nearest putative next of kin by blood to the decedent ... living in the United States ... Nancy Leeds Wynkoop ...." Petition ~ 12; see

Affidavit of Mrs. Nancy Leeds Wynkoop~, 15-16. Ms. Wynkoop describes herself as a blood relative of Anastasia Romanov (ld. at ~~ 2-3), and states that she "accepted

Mrs. Manahan's identity as the Grand Duchess Anastasia." I d. at~ 12. According to Ms. Wynkoop, her "mother remained convinced of, and actively supported the recognition of, Mrs. Manahan's identity as the Grand Duchess Anastasia." Id. at~ 7. Schweitzer does not rely on the Virginia Statute dealing with access to medical records, § 8.02-413(B) Code of Virginia, as the basis for her standing or the jurisdiction of the Court. Schweitzer addresses her petition to the general equitable powers of the Court, because "the existing statutes are deficient to cover the conditions and facts of these circumstances." Petition~ 15. The Petition stresses that "Petitioner seeks the jurisdiction of this Court, in Equity, because there is no adequate remedy at law for the relief sought ...." Petition ~ 15. Petitioner's

Suggestions of Jurisdiction in Equity also clarify, at~ 4, that the Petition is not based on the Virginia statute governing access to medical records:

In this cause, the decedent has no "next of kin by blood" ascertainable at law. In fact, the relief being sought may be essential to establish proof of kinship for the putative next of kin by blood, resident in the United States of America.

In addition, counsP.l for Schweitzer has verbally confirmed to cou11sel for the Association that the Schweitzer petition is based on general equitable principles, and not the Virginia statute.lJ In its Answer to Petition in Equity, the Hospital admits that it has possession of the Tissue Samples (Answer ~ 5), but "takes no position on the

Petitioner's prayer ...." Answer~ 18. The Hospital does ask "the court to enter no Order to its prejudice, to the prejudice of the records of any former patient of the lJ As referenced in Ms. Wynkoop's Affidavit, Ms. Manahan sought unsuccessfully, through thirty years of litigation in Germany to establish herself as Anastasia Romanov. Accordingly, Schweitzer does not contend that she has standing to bring this action because Ms. Wynkoop is known to be a blood relative of Ms. Manahan. The medical records statute, therefore, has no bearing on Schweitzer,s petition. . 4.

Hospital, or that would compromise its fiduciary relationship to any patient, living or deceased!' Id. The Association has been in existence since 1938, and exists "to preserve and promote the history and culture of the Russian nobility.'' Affidavit of Prince

Alexis Scherbatow ~~ 3-4. As explained by Prince Scherbatow, "The Association brings this Petition in furtherance of its institutional purposes." Id. at , 5. Prince Scherbatow further explains: "One of the main institutional purposes of the Association is to monitor claims by individuals to be members of the Russian nobility." ld. at ~ 6. The Association's Petition to Intervene asks that there be no disposition of the Tissue Samples until the Court can determine the appropriate

Order to make concerning the manner in which any testing will be done.~ The Association believes that scientists at the University of California at Berkeley, California, are in a better position than scientists at Aldermaston to conduct appropriate DNA examination of the Tissue Samples. Id. at ~~ 14-15. As explained in the Affidavit of Dr. William R. Maples, Dr. Mary·Claire King has teeth and bone samples that were taken by Dr. Maples from the human remains found at

Ekaterinberg. Affidavit of Dr. William R. Maples ~~ 9-11. A Decree issued by the Sverdlovsk prosecutor gave Dr. Maples the authority to take these samples, and to have them tested in the United States. Id. at~~ 7-9. That Decree has been provided to the Court attached to Dr. Maples' affidavit, and the documents concerning chain of custody for the samples can be provided to the Court. Id. at~ 11. Dr. Maples chose Dr. King for this work because ''she is the foremost forensic genetics scientist in the

The Association is aware that a petition to intervene has been filed by another party, however, the Association has not been served with that petition and is therefore unable to respond to it at this time. - 5-

United States, and one of the most highly-regarded scientists in this field anywhere in the world.'' Id. at ~ 12. Dr. King has also received blood and tissue samples of Romanov relatives of Czar Nicholas II and Hessian relatives of his wife, Alexandra, from which to base her DNA comparisons. Id. at ~ 15-16. Aldermaston has apparently had difficulties with ita samples -· difficulties which have not been encountered by Dr. King with the samples taken by Dr. Maples. I d. at~ 19 .. 22. ARGUMENT The Association bases its standing to intervene and participate as a party to this action on its long-standing institutional role of monitoring and verifying claims by individuals to be members of the Russian nobility and to protect the history of Russia prior to 1918 from being distorted. Scherbatow Aff. at ~~ 4-6. The Association has never been able to verify Ms. Manahan's claim to be Anastasia

Romanov. Id. at~ 9. The question of whether Anastasia Romanov survived execution in 1917, and whether Ms. Manahan was, in fact, Anastasia Romanov, is an issue _of historical and cultural importance, as well as a matter of curiosity and speculation. Schweitzer does not claim that this issue is one on which present cognizable legal rights, such as the right to property, turn. Rather, she seeks DNA testing of Ms. Manahan in order to verify the identification of her randfather's remai . It would certainly seem more logical that a blood sample from Schweitzer would be more useful to identify the remains of her blood relative, rather than one from Me. Manahan. Nonetheless, it is on general equitable principles, stands on no better footing than the request of the Association to be able to participate in a proceeding that concerns matters of the sort the Association has addressed since 1938. . 6.

The Association has an interest in ensuring that any testing done on the Tissue Samples is of the highest scientific integrity. In light of its long-standing institutional role in this area, the Association unquestionably has the right to assert such an interest in Court. See The Working Waterman's Assoc. of Virginia, Inc. u. . Seafood Harvesters, Inc., 227 Va. 101, 107 (1984) (trial court permitted association whose members earned their living by harvesting shellfish and finfish to intervene in proceeding concerning equipment used to harvest hard shell clams). See also State of Idaho v. Freeman, 625 F.2d 886, 887 (9th Cir. 1980) (National Organization for Women may intervene in lawsuit challenging procedures for ratification of proposed Equal Rights Amendment). This interest is not adequately represented by

individuals who are certain that Ms. Manahan was Anastasia. Romanov (Petition~ 6;

Affidavit of Nancy Leeds Wynkoop~ 12), who cannot articulate a coherent theory for

why they wish to have DNA testing conducted (Petition~ 4), and who are willing to accept second-best scientific testing from a laboratory whose legal "mandate'' has not been produced, and whose other samples may well be contaminated. Affidavit of Dr.

William R. Maples~ 20. Nor can the Association's interests be protected through any means other than allowing its intervention. There is no scientific evidence that the Tissue Samples can be split so that parallel testing could be conducted at two laboratories.

I d. at~ 23. If this proceeding results in an order disposing of the Tissue Samples, it will be the only opportunity for the Association, or any other interested party, to present alternative positions to those advanced by Schweitzer concerning the best scientific approach to the handling of the samples. . 7.

Since this proceeding was only recently commenced, allowing the intervention of the Association can cause no unreasonable delay, and cannot prejudice any other party to the case-· or any other potential intervenor. Therefore, the Association clearly has an interest in the subject matter of this proceeding which cannot and will not be adequately represented by the parties. Its interest is in seeing that the Tissue Samples, if taken from the control of the Hospital, are tested by completely neutral experts in the field of mitochondrial DNA testing so that question of Ms. Manahan's claim to be a member of the Russian nobility can be finally verified or refuted.

Respectfully requested,

A. Lindsey Crawford (Virginia Bar No. 32521) Thomas R. Kline ANDREWS & KURTH L.L.P. A Registered Limited Liability Partnership 1701 Pennsylvania Avenue, N.W., Suite 200 Washington, D.C. 20006

J. Page Williams David B. Franzen FElL, DEINLEIN, PETTIT & WILLIAMS, P.L.C. Attorneys At Law 530 East Main Street Post Office Box 2057 Charlottesville, Virginia 22902 Attorney a for the Petitioner, the Russian Nobility Association, Inc. . 8.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 12th day of November 1993, I mailed a true and accurate copy of the foregoing Memorandum in Support of Petition to Intervene of Russian Nobility Association, Inc. to: Matthew B. Murray Esquire, Richmond and Fishburne, 214 East Hig_h Street, P.O. Box 559, Charlottesville, Vi_r_ginia 22902-0559; Edward H. Deets, Jr., Esquire, P.O. Box 5484, Charlottesville, Virginia 22905; R. Richard Schweitzer, Esquire, P.O. Box 788, Great Falls, Virginia 220~6; and Alexander Wellford, Christian, Barton~. Epps, Brent & Chappell, 1200 Mutual Building, 909 E. Main Street, Richmond, virginia 23219.

x:/alc/Ana.ata.aia/IMF /M-Intt:rvene 1668/156869 November 11, 1998 10:48 AM