IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT SANGAMON COUNTY, ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff, No.: 90-CF-328 v.

THOMAS MCMILLAN,

Defendant.

DEFENDANT'S MOTION FOR POST-CONVICTION FORENSIC DNA TESTING PURSUANT TO 725 ILCS 51116-3,

Defendant THOMAS MCMILLAN' rDefendantY'),who is serving a life sentence

'or murder, moves this Court, by and through his attorneys, Feldman, Wasser, Draper

Sz; Cox, and pursuant to 725 ILCS 51116-3, for entry of an order allowing certain DNA

'orensic testing of hair, nail scrapings and clothing evidence, which evidence is in the

state's custody, and which evidence was not subject to DNA forensic testing at the

;ime of trial.

' Defendant's last name is actually spelled "McMillen." The spelling of lefendant's name as "McMillan" in all preceding filings of record has been in error. 1 copy of Defendant's birth certificate is appended hereto as Attachment A. lefendant requests the court to order the correction of the record. Defendant will use ;he correct spelling of his name in the body of this motion, and in the body of subsequent filings of record, but will, for purposes of judicial efficiency, use the ncorrect spelling of his name in the caption of this Motion, and in subsequent case :aptions, until correction is ordered.

FELDI~IAA',JIMSSER DRAPER 6 C0,Y 1307 S. Seventh St. Posl OIke Box 2418 Springfield,1L 62705 2171544-3403 Page 1 of ZW Sangamon County No. 90 CF 328 In support of this Motion, Defendant states as follow^:^

Section 116-3 Authorizes Post-Conviction Testing Where Such Testing Would Possibly Show Actual Innocence'

Section 116-3 of the Illinois Code of Criminal Procedure [725 ILCS 51116-

31 provides for post-conviction forensic testing of evidence that was secured in

relation to the trial which resulted in the conviction, when the evidence was

either (a) not subject at the time of trial to the testing which is now requested,

or, (b) although previously subjected to testing, can be subjected to additional

testing utilizing a method that was not scientifically available at the time of

trial that provides a reasonable likelihood of more probative results. A copy of

the text of Section 116-3 is appended hereto as Attachment B.

This law applies to Defendant as he contested his guilt at trial. People v.

O'Connell, 227 I11.2d 31, 37, 879 N.E.2d 315 (2007). There are no time limits

within which Defendant must request relief. People v. Price, 345 Ill. App. 3d

129, 801 N.E.2d 1187, 1191 (zndDist. 2003)

?References to the common law record in the underlying case are referenced herkin as "(C.J"' References to the trial testimony in the underlying case are referenced herein as "([date] Tr., pp. :Testimony of "). The Downstate Illinois Innocence Project has obtained through the Freedom of Information Act the police investigative file. See the Affidavit of William R. Clutter appended hereto as Attachment C at par. 5. These records have been bates-stamped and collected in three volumes of three ring binders as well as in a CD Rom in an adobe document that is searchable by bates number. Defendant's counsel, upon request, will provide the Court and the State's Attorney a copy of the CD Rom and an index to the documents on the CD Rom and access to the bound documents. References herein to these records are referenced herein as "(FOIA # )".

FELDMAX, I~WSSER DRAPER & COAX 1307 S. Seventh St. Past OfficeBox 2418 Springfie141L 62705 2 17644-3403 Page 2 of &ZB Sangamon County No. 90 CF 328 Under Section 116-3(a), Defendant must present a prima facie case that:

(1) identity was the issue in the trial which resulted in his conviction; and . . (2) the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered i11 any material aspect.

Once that prima facie case has been met, this Court "shall allow the ,testing

under reasonable conditions designed to protect the State's interests in the

integrity of the evidence and the testing process upon a determination that:

(1) the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence even though the.results may not completely exonerate the defendant;

(2) the testing requested employs a scientific method generally accepted within the relevant scientific community.

5. Identity As An Issue At Trial: Cases reviewing the element of whether

identity was at issue in a defendant's trial are discussed in Price, 801 N.E.2d at

1198-1199. These cases establish that where a defendant maintains that he did

not commit the charged crime and that the occurrence witnesses who testified

that the defendant did commit the crime were lying, a defendant has

established that identity was the central issue. As discussed in more detail

below, Defendant has consistently maintained his innocence, testifiedin his own

defense at trial, denying .his guilt and putting on an alibi defense, and

challenging the veracity of the occurrence witness against him.

FELDMAA; IIMSER J DRAPER& COX - 1307 S. Seventh St.

2171544-3403 Page 3 of 220 Sangamon County No. 90 CF 328 Chain of Custody: With regard to establishing chain of custody, People v.

Travis, 329 Ill.App.3d 280,285, 771 N.E.2d 489 (4t11~ist.2002), notes that "[ilt

asks too much to require petitioning defendant in these cases to plead and prove

proper chain of custody at the outset, for the evidence at issue will undoubtedly

have been within the safekeeping of the State, not the defendant." In People

v. Sanchez, 363 111.App.Sd 470, 478, 842 N.E.2d 1246 (znd Dist. 2006), the

appellate court, relying on Travis, held that the defendant's motion, which

simply stated that the evidence to be tested had been in the continuous

possession of law enforcement agencies, "is facially sufficient with respect to the

chain-of-custody requirement."

As indicated in paragraph 10 of the Affidavit of William R. Clutter,

Attachment C hereto, Director of Investigations of the Downstate Innocence

Project, attesting to the fact that during his post-conviction work on the case at

bar, he was assured on August 15,2008,by Captain Thomas P. Hendrickson of

the Sangamon County Sheriffs Office that all physical evidence obtained in the

homicide investigation has been secured by the Sheriffs Office and that the

I chain of custody had been maintained.

The evidence for which Defendant is asking testing must, by law, be in

the custody of the State. Section 116-4 of the Illinois Criminal Code provides

that in cases of homicide under Article 9 of the Criminal Code, the offense of

conviction in the case at bar:

FELDAfAN, JI2SSER DRrl PER & COX 1307 S. Seventh St. Post ORice Box 24 18 Springfield,IL 62705 2171544-3403 Page 4 of Zm Sangamon County No. 90 CF 328 a law enforcement agency or an .agent acting on behalf. of the law enforcement agency shall preserve, subject to a continuous chain of custody, any physical evidence in their possession or control that is reasonably likely to contain forensic evidence, including, but not limited to, fingerprints or biological material secured in relation to a trial and with sufficient documentation to locate that evidence.

1725 ILCS 51116-4(a)] To Ije exempted from this obligation, law enforcement

must petition the court, with notice to the defendant, to destroy or discard the

evidence. [725 ILCS 51116-4(b)] No such petition has been filed in this case.

Under Section 116-4, the evidence must be retained until January 1, 2006, or

completion of a sentence, including any mandatory supervised release term,

whichever is later. Defendant is serving a life sentence, thus the evidence must

still be retained by law enforcement.

The evidence requested to be tested in the case at bar has and should be

subject to a sufficient chain of custody.

Material Relevance to a Claim of Actual Innocence: "[Elvidence which is

'materially relevant' to a defendant's claim of actual innocence is simply . . evidence which tends to significantly advance that claim." People v. Savory, 197

I11.2d 203,213,756 N.E.2d 804 (2001). The evidence does not have to.have the

potential to completely exonerate the petitioning defendant. People v. ~ibHon,

357 Ill. App. 3d 480, 487-88, 293 I11 Dec. 571 (4thDist. 2003)(citing Savory).

Whether the requested DNA testing will provide materially relevant

evidence of actual innocence "requires a consideration of the evidence introduced

FELDMAN, IISlSSER DRAPER & COS 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2 17A44-3403 Page 5 of 3.20, Sangamon County.No. 90 CF 328 at trial, as well as an assessment of the evidence defendant is seeking to test."

Id. at 214. It does not matter that the result of the requested test will be

favorable or not. Price, 801 N.E2d at 1192. In addition, a court must be

"cautious not to 'collapse' [its] consideration of a defendant's 116-3 motion and

defendant's claim of actual innocence into a single analysis." Price, 801 N.E.2d

at 1193.

As discussed in more detail in this Motion, given the lack of physical

evidence connecting Defendant to the crime, and the questionable testimony of

the State's key witness who was the only occurrence witness, which testimony

this witness has now recanted, the DNA testing of hair, nail scraping and

clothing evidence from the victim and crime scene, should it exclude Defendant

as the source, would be materially relevant to Defendant's continually professed

claim at trial that he did not commit the crime, would tend to 'corroborate

Defendant's alibi witnesses and would otherwise undermine the credibility of

the State's theory of the case.

Procedural History of the McMillen Case . . 8. On May 15, 1990, Defendant was charged by the ~an~amon'count~Statek

Attorney with the capital offense of first degree murder and the armed robbery

and attempted aggravated kidnapping of Melissa Koontz. (C.9) Also charged

with these crimes were Gary Edgington and Donald Johnston (July 16,1991Tr.

1 , FELDAMA', II'ASSER -2 DRAPER & COX 1307 S. Seventh St. Post Ofiice Box 24 I8 - .- 1 _I Springfield, IL 62705 I 2171544-3403 Page G of &= Sangamon County No. 90 CF 328 1 _I - - I J p. 45: Opening Statement of State's Attorney Donald Cadigan).3 A juvenile,

Danny Pocklington, was also charged, but found unfit to stand trial. (June 10,

1991 Tr., p. 22)

On June 24,1989, Melissa Koontz's vehicle was discovered at about 11:50

p.m., about 1'6-17 miles west of Springfield and about 3 miles south of New

Berlin, on a county road commonly known as the New Berlin to Waverly

blacktop. The vehicle was abandoned in the middle of the southbound traffic

lanes, with its headlights on, the keys in the ignition and the engine turned off.

No one was found to be around or in the area of the vehicle. (July 16,1991, Tr.

pp.94-95: Testimony of Deputy A1 Sample; July 17, 1991Tr. p. 202: Testimony

of Detective David T. Leonard) The vehicle was discovered about an hour after

Melissa Koontz was last seen alive at about 10:06 p.m. leaving from her place

of employment at a grocery store in Springfield, Illinois. (Id; July 16, 1991, Tr.

pp. 89-92: Testimony of Vicki Wasilewski) The vehicle was also observed by a

passer-by in this locatiqn and in that condition at sometime between 10:08 p.m. I and 10:18 p.m. (July 17, 1991 Tr. pp.43-49: Testimony of Daniel K. tho ma^)^

'People of the State of Illinois u. Donald Johnston, Sangamon County Circuit Court Docket 89-CF-368.

*The testimony of this State's witness coupled with the time the State's witness had Melissa Koontz leaving work would mean, according to the State's theory of the case, that Ms. Koontz would have had to have traveled to the location on the Waverly blacktop, had her car stopped and been abducted from the area all in a span of about I 13 minutes. Given that the car was located about 16+ miles from Springfield, this testimony by itself would make the State's theory of the case simply implausible.

FLDMAA', IVASSER DMPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springfield,1L 62705 2171544-3403 Page 7 of ZW Sangamon County No. 90 CF 328 A week later, on July 1, 1989, the fully clothed body of Melissa Koontz

was discovered in a cornfield adjacent to a Sangamon County road southwest

of the 'City of Springfield, a location about 2.5 miles from her place .of

employment. (July 17, 1991, Tr. pp. 202-03: Testimony of Detective David

Leonard; July 16, 1991 Tr. pp. 103-06: Testimony of Susan Matteson:

FOIA##423-24: Report of Asst. Chief Terry L. Castleman) The autopsy of

Melissa Koontz's body revealed eighteen wounds, including multiple wounds to

the chest region and wounds to her back, arms and hand. Although precise

cause of deathwas stated to be undetermined due to postmortem decomposition,

cause of death was stated to be "strongly consistent with severe external and

internal hemorrhage" due to,penetrating stab-cutting wounds to the heart, the

other stab-cutting wounds being non-fatal. The autopsy stated that the

instrument causing these wounds was "consistent with a knife". The autopsy

could not rule out "neck trauma followed by severe hemorrhage". The autopsy

revealed no evidence of sexual assault, but because of decomposition it could not

be determined whether or not seminal fluid was present. (July 17, 1991

Tr. pp.3-42: Testimony of Dr. Grant C. John~on)~

5As indicated at paragraph 6 of the Affidavit of William R. Clutter, the Downstate Innocence Project has obtained the autopsy report of Dr. Johnson. References are made to the autopsy report throughout this Motion. Due to the graphic nature of the autopsy report it is neither appended to this Motion nor to the Affidavit of William R. Clutter, however Defendant's counsel will make this autopsy report available upon request to'the Court and to the State.

FELDilIAN, IWSSER DMPER & COZY 1307 S. Seventh St. Post Ofice Box 2418 Springfield, IL 62705 2171544-3403 I Page 8 of 2/* Sangamon County No. 90 CF 328 Defendant was .tried for 'the charged crime^.^ On July 22, 1991, a jury found

Defendant guilty of all charges and eligible for the death sentencee7 (C. 1128)

On December 3, 1991, after a jury trial on the issue of the death sentence,

Defendant was sentenced to a term of natural life in prison on the murder

charge.8 (C.361) On January 14,1993, Defendant's conviction was affirmed on

appeal. People v. McMilEan, 239 Ill. App. 3d 467, 607 N.E.2d 585 (4th Dist.

1993). Defendant was denied leave to appeal to the Illinois Supreme Court.

People v. McMillan, 152 111.2d 571, 622 N.E.2d 1219 (Ill. 1993).

On November 12, 2003, Defendant filed a pro se Petition for Executive

Clemencyg with the Illinois Prisoner Review Board, asserting a claim of actual

innocence. (Illinois Prisoner Review Board Docket No. EC24726) On July 12,

'Unlike Defendant who continually protested his innocence, Edgington confessed his involvement in the crime (FOIA#199: Det. Leonard Report on Edgington taped confession) but then went to trial (before Defendant was tried) and was convicted by a jury of the murder of Melissa Koontz. (People v. Gary Edgington, Sangamon County Circuit Court Docket No. 90-CF-328; July 17, 1991 Tr. pp. 196-97: Testimony of Detective David T. Leonard) Although cooperating with the State prior to his trial, and even though he had much to gain given that he was facing a sentence of either natural life or the death penalty, Edgington never testified against Defendant.

Due to extensive pre-trial publicity Defendant's trial was moved to Peoria, Illinois. (June 11, 1991, Tr. p .2: Ruling of Judge C. Joseph Cavanagh)

No sentence was imposed on the armed robbery or the attempt aggravated kidnapping charges. (C. 361)

'Defendant was assisted by another inmate who wrote the petition for him, as Defendant could neither read nor write very well. See Affidavit of William R. Clutter,

FELDAfdA', IIHSSER DRAPER & CO-Y 1307 S. Seventh SL. Post 0lXcc Box 24 18 Springfield,IL 62705 2 171544-3403 Page 9 of 2/@ Sangamon County No. 90 CF 328 2006, Governor Rod Blagojevich denied the petition. (Illinois Prisoner Review

Board Docket No. EC24726)

After Defendant's conviction, Johnston pled guilty to an amended charge of

armed robbery pursuant to a negotiated plea and on October 28, 1991, received

a 15year sentence. People v. Johnston, Sangamon County Circuit Court Docket

Defendant's Identity Was The Issue At Trial And Defendant Contested His Guilt At Trial

The State's theory of the crime, as established by Donald "Goose7'Johnston, the

State's only alleged occurrence witness, was that Defendant, Edgington,

Johnston and Danny Pocklington all left Mary Pocklington's house in Modesto,

driving to Springfield in Mary ~ocklin~tbn'scar to.get more beer and planning

on stopping the first vehicle they saw'to rob the occupant for beer money; that

Defendant and Edgington stopped ~elissaKoontz's vehicle by waiving it down

from the roadway, stabbed her in the arm, abducted her, drove away with her

in Pocklington's car and then murdered her. (July 16, 1991, Tr. pp. 45-61:

Opening Statement of State's Attorney Don Cadigan) Defendant's identity as

the perpetrator of the crime was the issue at trial and Defendant contested his

guilt at trial.

A. Physical Evidence: Other than evidence of a necklace by which the

State sought to circumstantially tie Defendantto the crime, the State presented

FELDMAA', II'ASSER DRAPER & C0.Y 1307 S. Seventh St. Post Office Box 24 IS Springfield, 1L 62705 2 171544-3403 Page 10 of 7/20 Sangamon County No. 90 CF 328 no other physical evidence or forensic evidence at trial linking Defendant to the

crimes charged. As discussed below, the necklace evidence was extremely

circumstantial as it related to Defendant and, as indicated by information in the

case investigation records, the necklace evidence was extremely suspect.

No Blood Evidence: Although the State's key witness Johnston

testified that Defendant stabbed Meli'ssa Koontz in the roadway and dragged

her into the Pocklington car (July 17,1991, Tr. pp. 68-74: Testimony of Donald

Johnston), no blood evidence was found in Melissa Koontz's vehicle or on the

roadway where the abduction and initial stabbing was alleged to have occurred.

(July 17, 1991, Tr. pp. 147, 150, 153-155: Testimony of ISP Crime Scene

Technician Paul Schuh; July 16, 1991 Tr. p. 101; Testimony of Deputy A1

Sample) Although the police photographed Mary Pocklington's car on July 12,

1989 (FOIA#39: Report of Deputy Brian Walker) and had inspected her car

when it was sitting in front of her residence (see Affidavit of William R. Clutter,

at par. 21),1° the State presented no physical or forensic evidence of the

presence of blood in Pocklington's car into which car the State's occurrence

witness Johnston testified Melissa Koontz was dragged, while bleeding from a

stab wound, and driven away in by Defendant and Edgington.

''See Exhibit 7 to the attached Affidavit of William R. Clutter, being a video and ranscript of an interview of Mary Pocklington by the Downstate ~nnocenceProject in vhich she indicates that the police searched her car.

FELDWLN, If%SSER DRAPER b COX 1307 S. Seventh St. Post OWce Box 2418 Springfield, 1L 62705 217/544-3403 Page 11 of z/W Sangamon County No. 90 CF 328 No Evidence of Missing Money: Although the State's key witness,

Johnston, claimed that the abduction was motivated by a desire to rob Melissa

Koontz to get beer money (July 17, 1991 Tr., pp.. 63-65: Testimony of Donald

Johnston), there was no evidence of any missing money from her car. The first

police officer to find the abandoned car observed no indications of any struggle . . at the crime scene and found Melissa Koontz's purse in the vehicle, but he did

not recall seeing any money in the purse. (July 16, 1991, Tr. p. 95, 102-03:

Testimony of Deputy A1 Sample) The officer's radio report stated: "Money in

the purse, loose money inside the car" and "all her possessions that we are

aware of are accounted for in the car." (FOIA##307, 316: Deputy Sample &

Dispatcher radio transcript) The report of ISP Crime Technician Schuh and his

photographs of the car showed that there was paper money in the ashtray in the

middle console. (FOIA# 1042: Technician Schuh Crime Scene Report)

Sangamon County Sheriffs Detective Hinsey's June 25,1989 report of interview

with the Koontz family recited that the Koontz family found the car and its

contents 'to be in "normal conbtion," that there was money in the ash tray "as

normal practice"; that Melissa Koontz carried little if any money in her purse,

the checkbook in her purse appeared in good order; and her ATM card was

present in her purse. Melissa Koontz's purse contained an ATM deposit slip

indicating that she had deposited her whole paycheck that morning. (FOIA#

274-277: Report of Det. S. Hinsey)

FELDMAN, II'ASSER DRAPER d COX 1307 S. Seventh SL Post Office Box 24 IS Spiigfield, IL 62705 2171544-3403 Page 12 of ZW Sangamon County No. 90 CF 328, Knife Evidence: Dr. Grant Johnson, who performed the autopsy

testified that in hsopinion the stab wounds would come from a knife with at

least a %inch long, 1-inch wide blade, consistent with a butcher knife; but he . . admitted that he has not seen a butcher knife that small; and that the wounds

indicated to him that Ms. Koontz was more likely laying flat and not standing

when the wounds were inflicted. (July 17, 1991, Tr. pp. 18, 30, 34,38-41)

The State's witness Johnston testified that Defendant stabbed Melissa

Koontz in the arm with his buck knife and, that when they left Mary

Pocklington's house before the crime was committed, Defendant had a buck

knife which he saw, and a knife in his shoe, which he didn't see. (July 17, 1991

Tr. p. 116-17) Johnston's. testimony. was ,extremely suspect as Johnston

admitted telling the police that he possessed the knife used .by Defendant to

commit the crime, stating that he pulled it out of MeliSsa Koontz's chest, that

he gave it to Simmi Pocklington and that he and Danny Pocklington cleaned the

knife; but Johnston also testified that all of these statements by him to the

police were lies. (July 17, 1991 Tr. p. 108, 119-123, 125-26, 129)'' . . Nancy Pocklington testified that Johnston carried a switchblade stuck

down in his shoe. (=July17,1991, Tr. pp. 184: Testimony of Nancy Pocklington)

llAs discussed in more detail in this Motion, Johnston also told police that a Ierson other than the Defendant was the perpetrator of the crime and that this person lad a 10-inchlong knife that he used and then hid in his truck. (FOIA##17-18: Report )f Det. James Mitchell)

FELDIIfAN, II'ASSER DRAPER & COX 1307 S. Seventh St Post OfFceBox2418 Springfield,IL 62705 2171544-3403 Page 13 of. *m Sangamon County No'. 90 CF 328 Johnson admitted that he had a knife concealed in his boot on the night in

question, but denied he used it to stab Melissa Koontz. (July 17, 1991 Tr. pp.

l17,121,125-26)Johnston, however, told Sangamon County Sheriffs De'tective

David Leonard that he could have "accidentally" stabbed the girl himself. .(July

17, 1991 Tr. p. 128)

Nancy Pocklington also testified that very late on June 24, 1989 or the

early morning hours of ~une25, 1989, Johnston and Danny Pocklington came

to her trailer in Carlinville; that they acted nervous and up-tight; and that on

July 4, 1989 she was at Mary Pocklington's house, when the Defendant,

Johnston and Danny Pocklington were present, and that,Defendant, Mary and

Simmi Pocklington were talking about a knife that "Danny and Donny" had

given them to keep. (July 17, 1991, Tr. pp. 179-184).

Defendant admitted he had a buck knife and that he turned it over to

police when they asked for it. (July 18, 1991, Tr.p. 104: Testimony of ~homas . . McMillen)12 The State, however, presented no forensic evidence' that tied any

knife belonging to Defendant, nor any knife belonging to any other person, to

the crime.13 - ''The only police report of Defendant turning over a knife has Defendant turning 0ver a knife that Defendant reported Johnston gave to him. (FOIA#39: Report of IIeputy Brian Walker) ,

13Severalknives were logged into evidence by the police and examined by the I SP Forensics Laboratory, including two butcher knifes (FOIA#1140J 1523: Reports of Iqorensic Scientist William E. Frank),however, the ISP Forensics Laboratory reports

FELDMAN, II'ASSER DRAPER & COX 1307 S. Sevenlh St. Post Office Box 24 IS ~~rir;$field.1L 62705 2171544-3403 Page 14 of Z/m Sangamon County No. 90 CF 328 Fingerprints: Crime Scene Technician Schuh testified at trial that

there were latent prints found at various locations on Melissa Koontz's vehicle;

however, Schuh testified that none matched Defendant. (July 17, 1991 Tr. p.

153-54: Testimony of Paul Schuh) No other fingerprint evidence was offered

at trial and the State also offered no testimony at trial seeking to explain why

fingerprints of Defendant were not found in or on either of the two vehicles

involved.

The Necklace: Count VII of the charges against Defendant alleged that

Defendant committed armed robbery by taking a silver chain necklace from the

person or presence of Melissa Koontz by the use of force. (C.15) The State

presented evidence about a necklace that may have belonged to Melissa Koontz

and may have been in her vehicle, but no evidence was presented at trial

showing that Defendant - took the necklace from Melissa Koontz or ever

possessed that,necklace.

Melissa Koontz's mother testified.that she had purchased an inexpensive

24-inch silver chain for her daughter; that the chain hung over the car's rear

view mirror; that she had seen the necklace hanging there a few days before;

and that when she found her daughter's car on the Waverly blacktop the

ndicate that no evidence of blood, hair or fibers were found on the knives. FOIA#1137-1141, 1455, 1523, 1558-1663, 1676, 1678-82, 1691-93: Reports & Jaboratory Worksheets of William E. Frank and ISP Forensic Laboratory Evidence teceipts) One of the knives (FOIA#1663: Laboratory Work Sheet of William E. Frank) vas the one identified in Dr. Johnson's autopsy report as found in the nearby field.

FELDMAA', II%SSER DRAPER & COX 1307 S. Seventh St. Post Ofice Box 24 IS Springfield, IL 62705 21 71544-3403 Page 15 of .2/m Sangamon County No. 90 CF 328 necklace was missing. (July 16,1991Tr. pp. 84-87: Testimony ofAnna Koontz)

As discussed in more detail below, Ms. Koontz' testimony conflicted with

material statements she and her family made to police prior to trial during the

investigation of the crime, which statements evidenced that the necklace

recovered by the police was not Melissa Koontz' necklace.

Evidence was presented by the State that (i) in the very early morning

hours of June 25, 1998, at Simmi Pocklington's house, Danny Pocklington gave

Simmi Pocklington a necklace to hold and then took the necklace back saying

that he was going to give it to his mother, (ii) that Johnston, Defendant and

Edgington were ah that house at that same time; (iii) that Danny Pocklington

lost the necklace later that morning in Simmi's yard, and Defendant found the

lost necklace and (iii) that Simmi Pocklington identified People's Exhibit 9, the

necklace alleged to have come from Melissa Koontz, as the necklace which

Danny had. (July 17, 1991 Tr. pp. 77-78, 81-83, 127: Testimony of Donald

Johnston; July 17, 1991 Tr. p. 168-69; Testimony of Simmi Pocklington)l4

Johnston also testified that on July 4, 1989, he went to Mary Pocklington's

house; that Defendant, Edgington and Danny were there; Danny was wearing

the necklace he had gotten from Defendant and that Defendant had told Danny

to give it to his mom. Danny gave the necklace to Mary, his mom. Johnston

14Asnoted infra, Simmi Pocklington told the police that he was not at his house on that date, although he testified at trial that he was.

1 1 FELDAMA', II'ASSER I - DRAPER & CO,Y 1307 S. Seventh St. -I Port OfficeBox241S Sp~ingfield,IL 62705 - - I 2171544-3403 Page 16 of Sangamon County No. 90 CF 328 -.J -- - I - was shown People's exhibit 9, a necklace, and he identified the necklace as

being the one that Danny had over Simmi's house and that Danny had on July

4,.1989. (July 17, 1991 Tr. pp. ,8243)

Contradicting any implication that Defe,ndant had given Danny

Pocklington the necklace was the testimony of Simmi Pocklington, who asked

specifically if any of the people at his house that night-Defendant, Johnston,

Edgington and Danny Pocklington-had any property in their possession, he

answered only "Danny did". (July 17, 1991 Tr. p. 168: Testimony of Simmi

Pocklington)

Sangamon County Sheriffs Detective John Pinneo testified that on July

14,1989,Mary Pocklington gave him a necklace.16 (July 18,1991Tr. pp. 12-13:

Testimony of John Pinneo) Shown the necklace at trial, the mother of Melissa

Koontz could only say that the necklace looked identical to the one she gave her

daughter, but she could not say for certain that the State's necklace exhibit;

People's Exhibit 9, was, in fact, that necklace.. (July 16, 1991 Tr. pp. 84-87)

16DetectivePinneo testified at trial that he met MaryPocklington on July 14, 1989, when he walked in to the room when Detective Brenda Campbell was finishing her interview of Mary Pocklington and that is when Mary Pocklington pulled out the necklace and gave it to him, (July 18, 1991 Tr. pp. 10-13). The report of Detective Campbell of the Mary Pocklington interview makes no reference to a silver necklace nor identified Detective Pinneo as being present. (FOIA# 63-65: Report of Det. Brenda Campbell) Although the necklace is shown on the police evidence log (FOIA#1085: Evidence Inventory Log of Det. John Pinneo), no police report was ever made by Detective Pinneo regarding the collection of the silver necklace from Mary Pocklington.

FELDMAA', II'ASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2 171544-3403 Page 17 of %m Sangamon County No. 90 CF 328 Facts about the necklace contained in case investigation reports shed

serious doubt on any circumstantial connection of the necklace to ~efendantand

thus; by implication, Defendant's connection to the crime (emphasis supplied):

(a) On June 25,1989 the family reported nothing missing front the car (FOIA#316: Det. A1 Sample & Dispatcher Radio Transcript) and Melissa KoontzJs mother and other fantily nzenzbers made no mention of tlte necklace when describing the jewelry Melissa ujas wearing and said that the car and its contents appeared in normal condition. (FOIA# 2741277: Report of Det. S. Hinsey).

(b) On July 14, 1989, Danny Pocklington, after being shown the silver colored necklace the police received from Mary Pocklington, stated that he obtained the necklace front "Goose"and tltat lte assz~ntedthat Goosegot the necklace ')%omthe girl, Goose took it offof her."(FOIA# 70-73: Report of Det. David Leonard) Upon being re-interviewed on January 17, 1990 Danny Pocklington stated that after Goose placed the girl in tlze cornfield Goose took the necklace to Goose's girlfriend in Peoria and that Goose later gave the necklace to Danny Pocklington. (FOIA# 218-219: Report of Det. John Pinneo) These statentents fronz ,Danny Pocklington directly contradict Johnston's trial testimony that Danny had gotten the necklace from Defendant. (July 17, 1991 Tr. pp 82-88)

(c) On January 3, 1990, the superintendent of the school attended by Danny Pocklington turned over a silver colored necklace and two photos, both of the same girl, and that Pocklington had stated to the superintendent that the necklace came front "~LissaJKoontz,tltat he 'found in the fieldY"and that one photo was of "Lissa" Koontz and the other of a girl named Karen (FOIA# 213, 1074: Report of Det. David Leonard & Evidence Inventory Log). When the fanzily of Melissa Koontz was shown the photos and necklace obtained fronz the sclzool superintendent, none of them coudd identify tlte person in the photos and all three stated that tlze necklace was not one belonging to Melissa Koontz. (FOIA# 213, 215: Reports of Det. David Leonard)

(d) On May 25, 1990, Detective Leonard testified before the grand jury that the silver necklace taken from Melissa Koontz was turned over to him by Mary Pocklington, that he showed it to Danny Pocklington who told him that "it came from the Koontz girl" and that he then showed the

FELDMAN, IVASSER DR4PER & COX 1307 S. Seventh St. Post Ofice Box 24 18 Springfield, IL 62705 2 171544-3403 Page 18 of cm Sangamon County No. 90 CF 328 necklace to the parents of Melissa Koontz and Mrs. Koontz who stated that it was the necklace she purchased while in Mexico and they could not find that necklace upon searching their house (May 25, 1990 Grand Jury Testimony of Det. Leonard at pp. 17-18 ). No police report shows that this silver necklace obtained from Mary Pocklington was ever shown to the family of Melissa Koontz or shows that Mrs. Koontz made these statements to Detective Leonard.

(e) On July 14, 1990, Detective Pinneo interviewed Simmi Pocklington but never questioned him about the silver necklace the detective received from Mary Pocklington to see if it was the same necklace that Danny Pocklington had given Simmi Pocklington in the early morning hours of June 25, 1989. (FOIA# 69: Report of Det. John Pinneo)

B. State's Witness Donald Johnston: The State's key witness was

Donald "Goose" Johnston, the only alleged occurrence witness to testify against

Defendant. Johnston testified that he witnessed Defendant, along with

Edgington, commit the abduction of Melissa Koontz, including Defendant

stabbing Melissa Koontz in the arm. (July 17, 1991Tr. pp. 60-77, 116-17, 135-

36) At the time he testified, Johnston was also under charges for the murder . . of Melissa Koontz. (People of the State of Illinois v. Donald Johnston, Sangamon

County Circuit Court Docket 89-CF-368) Johnston, who had three prior

convictions, had gone no further than the ninth grade in school, could only read

and write a little bit and his best friend was Danny Pocklington, a 15 year old

somewhat mentally retarded boy. (July 17, 1991 Tr. pp. 56-57, 59-60, 129)

Johnston admitted that he has a drinking problem and gets confused when he's

drunk, but he claimed that after consuming twelve beers earlier in the morning

FELDMAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post Ofice Box 24 18 Spring field. IL 62705 2 171544-3403 Page 19 of >m Sangamon County No. 90 CF 328 of June 24, 1989, he did not drink any more that day. (July 17, 1991 Tr. pp.

63,102-03, 118, 122-25)

Johnston, both before and at trial, gave multiple different and

contradictory versions of how the crime was committed and Defendant's

involvement therein.

Johnston's Trial Testimony: On July 17, 1991, some two years after

the crime was committed, Johnston gave the following testimony about how the

crime was committed (July 17, 1991 Tr. pp. 60-77, 116-17, 135-36):

(a) He, Defendant, Gary Edgington and Danny Pocklington, left Carlinville about 10:OO p.m. in Mary Pocklington's white Chevy as they wanted to get some more beer. Defendant, who was driving towards New Berlin, was talking about stopping the first car that came along the road and they were going to rob the person for beer money.

(b) After driving about 30 minutes, Defendant pulled the car behind a grain bin along side the Waverly blacktop. Defendant and Edgington went and stood in the middle of the road and waived their hands to stop a car that was heading southbound.

(c) Defendant pulled the girl out of the car and stabbed her left arm with a buck knife which Defendant carried in a holster. Defendant and Edgington drug the girl down the road to their car, placed in the back of the car and took off for Springfield with Edgington and the girl in the back seat. Johnston and Danny Pocklington did not go with them.

Johnston also testi'fiedthat a couple of days after July 4,1989, Defendant

stated he killed the girl and that he had stabbed her and cut her up and, that

at another point in time, Defendant told Johnston that they raped the girl.

(July 17, 1991 Tr. p. 84, 140) Johnston further testified that Defendant told

him where the body was found and that he had stabbed the girl three times,

FELDBIAN, II'ASSER DRAPER & C0.X 1307 S. Seventh St. Post Ofice Box 24 18 Springfield,IL 62705 2171544-3403 Page 20 of zw Sangamon County No. 90 CF 328 however Johnston admitted that in his July 13, 1989 statement to police he

stated that Edgington had stabbed the girl.three times. (July 17, 1991 Tr. p.

128) Lastly, Johnston testified, in contradiction to Defendant's alibi defense,

that while at Mary's house on June 24,1989, he never saw Defendant's parents

come to the house and Defendant was at Mary's house the entire time. (July I?,

1991 Tr. pp. 143-44)

Johnston's Contradictory Testimony: Evidencing that there was a

true issue as to whether Defendant committed the crime were the numerous

and significant contradictions and inconsistencies ab.out Johnston's testimony

regarding how the crime was committed: '-u '-u

(a) Although Johnston's testimony was that Defendant was the perpetrator, Johnston admitted that in 1989, within two weeks of the murder date, he,told two men in Carlinville and a police officer that he killed Melissa Koontz, never mentioning that Defendant was involved in the crime. (July 17, 1991 Tr. pp. 94-95, 128)

(b) Although Johnston's testimony was that he knew what took place on the road with Melissa Koontz on June 24,1989, Johnston admitted that he had no recollection of telling detectives on July 8, 1989, that Melissa Koontz was killed on Madison Street in Springfield. (July 17, 1991 Tr. p. 103)16

(c) Although Johnston's testimony had Defendant and others driving in Mary's car and stopping Melissa Koontz to rob her, Johnston admitted that on July 11,1989, he told Detective Mitchell that Mary's car had run out of gas and that he, Mary, Defendant, Jeff Pocklington and Tina Johnston, who had all been

16SeeJohnston's statement to .the police indicating that he first said Madison beet and then said Jefferson Street. (FOIA#5: Report of Det. ~ames'~itchel1)No lvidence was presented that either location was anywhere near the location where ither Melissa Koontz's body or vehicle were found and no evidence was presented of i crime scene at either location related to Melissa Koontz.

FELDA?AAr,II'ASSER DRAPER & COX 1307 S. Seventh St. Posl Ofice Box 24 18 Springfield, IL 62705 2 171544-3403 Page 21 of ZW Sangamon County No..90 CF 328 in the car, started walking down the road and that Defendant, Mary and Jeff stopped a car by waiving their arms. (July 17, 1991 Tr. p. 110)

(d) Although ~ohnston'stestimony stated that the motive for stopping Melissa Koontz's car was to rob her of money for beer, as noted above, there was no evidence of any missing money.

(e) Although Johnston's testimony had Defendant and Edgington stopping Melissa Koontz's car, Defendant stabbing her in the arm and the two of them taking her back to Springfield, Johnston admitted that on July 11, 1989, almost two years earlier, he told Detective Mitchell that an unidentified kid had picked him up in a red and white pickup truck while he was walking from New Berlin to Carlinville and that this kid abducted Melissa Koontz from her car, stabbed her in the chest and drove away with her in his truck. (July 17, 1991 Tr. pp. 110-112)"

(f) Although Johnston testified that later that night he walked past the area of the car and saw a police officer with a poster out looking for the girl, police reports indicate that it was not until the next morning when Officer Sample met with the Koontz family and a missing person's report was later made with the Sangamon and Morgan County Sheriffs Departments. (FOIA#1367-68; FOIA#1378-82) and it was not until June 26,1989 that missing person flyers were prepared. (FOIA#284: Report of Det. S. Hinsey)

(g) Johnston admitted that he lied to detectives on July 13, 1989, when he told them that a Gary Angelo grabbed Melissa Koontz and stabbed her three times. Johnston stated that he confused Gary Angelo, a Carlinville policeman, with Gary Edgington. (July 17,1991Tr. pp. 119-123) Johnston, however, never told police that day that Defendant was involved in the crime.

Raising yet another question about the validity of Johnston's testimony

implicating Defendant was the fact that Johnston had been incarcerated since

his arrest and was'aware that the State was going to seek the death penalty

against him if he was convicted. Although Johnston testified that the State had

17DanliyPocklington told police on July 14,1989,that the crime was perpetrated ,y Gary Edgington who was driving a red and white truck, with only Edgington, rohnston and Danny being involved. (FOAI#74-75)

FELDMAN, Il'ASSER I DRAPER& COX - 1307 S. Sevenlli St I , Post Ofice Box 24 18 - _I Sprmgfield, IL G2705 I -, 2171544-3403 Page 22 of %m Sangamon County No. 90 CF 328 J - J made no deals with him, he admitted that he was hoping to get something for

his testimony and that he expected something in return for his cooperation.

(July 17, 1991 Tr. pp. 85, 89, 92-93)

Johnston's Prior Inconsistent Statements to Police: Other

statements made by Johnston to police during the investigation of the crime

also significantly contradicted Johnston's trial testimony:

(i) Although Johnston's trial testimony has Melissa Koontz abducted and murdered on June 24,1989, on July.11,1989, Johnston told police that on June 28,1989, four days after the apparent date of the murder, he saw the girl in the Melissa Koontz missing person poster, at a certain house with a certain girl and in a certain car. (FOIA#000177: Report of Det. Gary Ewin)

(ii) Interviewed by a detective on July 9, 1989, Johnston did not indicate that he was present and saw Defendant kill Melissa Koontz; rather he told the detective that at a gas station Defendant showed him a poster of the girl and "stated something" to Johnston "about the murder". (FOIA# 7: Report of Det. James Mitchell)

(iii) Interviewed by detectives on July 11, 13 and 14, 1989, Johnston stated that a Gary Angelo had committed the crime using Johnston's pocket knife, and that he, Johnston, might have stabbed Melissa Koontz. (FOIA# 40- 44, 50-51: Reports of Det. David Leonard) Johnston's version of these events never mentioned Defendant as being present..

(iv) Interviewed on July 11,1989, Johnston told police that on the night of June 24,1989, he was walking towards Carlinville and saw a black car in the middle of the roadway with its lights on, motor running and hood up; that no one was around the car and he kept walking south, the direction the car was pointed; and that he saw no blood on the outside of the car. (FOIA#00016: Report of Det. James Mitchell)

Johnston's July 11, 1989 Completely Different Version of the

Crime That Does Not Implicate Defendant: Although Johnston admitted

on cross-examination that on July 11,1989, he told police a version of the events

FELDMAA', II'ASSER DRAPER & COX 1307 S. Seventh St. Posl Office Box 24 I8 Springfield, lL 62705 21 71544-3403 Page 23 of Sangamon County No. 90 CF 328 of the crime which did not involve Defendant, which version was completely

different than his trial testimony, in that same July '11, 1989 interview

Johnston also gave police yet another different version of how the crime

occurred, which version implicated a person other than Defendant as the

perpetrator of the crime (emphasis supplied) (FOIA#000 14-21: Report of Det.

James Mitchell):

(a) Johnston first told the police how he, Defendant, Mary Pocklington and others were walking down the road after Mary's car ran out of gas and they waived down a car and the girl in the car started screaming. (FOIA#00016-17)

@)Atthat point thepolice report stated: 'Xftertalking to Don Johnston his story changes once again.'' (FOIA#00017) The police report continues that Johnston tken gave a version of events, in some detail, which had an unnamed '%id"ina red and white pick-up truck, picking him up and then stopping Melissa Koontz's car and abducting her, taking things from her purse, including credit cards, and throwing some of her things out the window, and then after Johnston was let out the truck to go to a tavern in New Berlin, the truck headed east to Springfield. Johnston then stated that after he left the tavern he was walking towards Carlinville when he came upon the girls' car in the middle of the roadway; and that he then ran into a cornfield when he saw a police car shining its light around. Jolznston then stated that he waspicked up bypeople in a blue pickup truck and hitched a ride to Modesto and walked from there to Palnzyra to James Best's house where lze saw Mary Pocklington, Defendant and the kids; and that Mary and Defendant then left, taking Johnston back to their house where he stayed the rest of the night. (FOIA##00017-20)

(c) Upon further questioning, Johnston stated that he saw "the kid stab the girl in the chest upon lzer left breastJJand that the girl put her hand up by lzer chest and he saw blood on her hand and he heard the girl scream. (FOIA#0018- 19) Johnston then stated that "the guy" put the knife behind the front seat on the driver's side of the truck, and that is when he pulled up asking Johnston if he wanted a ride. Asked why he lied earlier, Johnston stated that '7ze did not' know why." (Id.)

(d) The detective tken asked Johnston '?f he was sure that this was the

FELDMAA: II'ASSER DRAPERS COX 1307 S. Seventh St. Post OmceBox 2418 Springfield. IL 62705 2 171544-3403 Page 24 of 2;w Sangamon County No. 90 CF 328 way the car was stopped" and Johnston '5ooked at [the detective] and stated yes, he was positive that this was the way that the car stopped with waiving their hands out in front of the car. (Id.) Johnston then described the knife as a big knife about 10 inches long and he was sure the guy put the knife in his truck. (Id.) The detective asked Johnston if there 'basanyone else there with him that may have seen this" and Johnston 'bnce again got teary eyed and said no, but [according to the detective] he was emotionally upset". (Id.)

C. Witness Johnston's Recantation: In a video-recorded interview

taken July 20, 2008 by the Downstate Illinois Innocence Project, Donald

Johnston recanted his trial testimony.18 In the interview Johnston stated (a) I that his testimony that he was present when Defendant pulled Melissa Koontz from her car and stabbed her was false and (b) that he pled guilty to the crime

because "[tlhem officers said you're guilty, you're guilty." See the Affidavit of I William R. Clutter at paragraphs 7-8 and Exhibit 3 thereto.lg D. State's Witness Simmi Pocklington: The State presented the

testimony of Simmi Pocklington, brother of Mary Pocklington. In addition to his

l8 Defendant's counsel will make this video available to the Court and the State upon request.

191nview of the recantation, the Downstate Illinois Innocence Project requested Richard A. Leo, Ph.D, J.D., an expert on police interrogations and false confessions, to review the investigation and trial record as it related to Donald Johnston. Dr. Leo has concluded that Donald Johnston's so-called confession has many of the indications of a false confession. See paragraph 11 of the Affidavit of William R. Clutter and the Affidavit of Dr. Richard A. Leo, appended as Exhibit 4 to the Affidavit of William R. Clutter. Dr. Leo's Affidavit makes reference to the mental health records of Donald Johnston. As indicated in paragraph 9 of the Affidavit of William R. Clutter, on consent of Donald Johnston, the Downstate Innocence Project obtained Johnston's mental health records. If requested by the Court or the State, Defendant will submit said records to the Court under seal, if so permitted by the Court.

FELDI~~AN,IVASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2171544-3403 Page 25 of Z/v Sangamon County No. 90 CF 328 testimony about the necklace, discussed supra at page 16, his testimony placed

Defendant and Johnston at his house in Carlinville in the early morning hours

of June 25, 1989, a few hours after the crime was alleged to have occurred,

contradicting Defendant's alibi case testimony (see Paragraphs E and F, infra)

that Defendant was at Mary Pocklington's house from about 9:30 p.m. on June

24, 1989 and continuously until the next morning.

On cross-examination, however, Simmi Pocklington admitted that on

July 14, 1989, he told police that on June 24, 1989, he went after work to the

house of Jane Carrington (now his wife), where he stayed Saturday night and

Sunday morning;20and that it was on June 23, 1989, not June 24,1989, when

he went to Mary Pocklington's house and saw Defendant. Simmi Pocklington

also'admitted that he never told the police that Defendant or Johnston were at

Mary%house in the afternoon of June 24,1989, or that he saw Defendant in the

early morning hoursof ~une25, 1989. (July 17, 1991 Tr. pp. 163-178)

E. Defendant's Alibi ~efense:As discussed below, Defendant denied

committing the crime and claimed that on the afternoon of June 24,1989, Mary

Pocklington drove him to his parents house in Carlinville where he remained

until about 9:30 p.m. or so when he was driven back to Mary's house by his

father and where he remained all night until the next morning. Defendant

20Thepolice interview of Jane Carrington corroborated this statement of Simmi 'ocklington. (FOIA#68: Report of Det. John Pinneo)

FELDMAN, II%SSER DRAPER & C0.Y 1307 S. Seventh St. Post Ofice Box 24 1 S Springfield,IL 62705 2171544-3403 Page 26 of Zm Sangamon County No. 90 CF 328 presented the testimony of several witnesses to corroborate his alibi.

Defendant's father, Vernon McMillan testified that on June 24, 1989,

at about 3:30 p.m., Mary Pocklington dropped his son off at his house in

Carlinville; that his son, who gave no evidence of drinking, stayed for supper

that evening and then left to walk to Mary's house, that knowing the 11-mile I distance, he went after his son and gave him a ride to Mary's house in Modesto where his son had, been living for about two months, a drive of about 30

minutes; that it was "good and dark" at the time; that when they arrived at the

Pocklington house ,Donald Johnston was on the porch with Mary's older son I Danny; that Mary's younger son Billy Pocklington came running out of the house"; that he dropped his son off and drove home, arriving about 15minutes

into the 10:OO p.m. news. ~i.MbMillan further testified that his son cannot I read or write. (July 18, 1991 Tr. pp. 56-66) Defendant's mother Alberta McMillen corroborated her husband's

testimony and she remembered her husband arriving home around 10:lO p.m.

(July. 18, 1991 Tr. pp. 67-74) Debra McMillen, Defendant's sister, testified

that Defendant was at their parents home at about 3:15 p.m. on June 24,1989;

and that after being there about 45 minutes to an hour, she left and returned

"In the July 21, 1989 police interview of Billy Pocklington he confirmed that Defendant's father brought Defendant to the house. (FOIAM126-131: Report of Detective Brenda Campbell)

FELDAfAAr, IWSSER DRAPER & C0.Y 1307 S. Sevcnlh SL Post OfiiceBox 2418 Springfield, 1L 62705 2171544-3403 Page 27 of 2/20 Sangamon County No. 90 CF 328 to the home about 9:10 p.m. and found only her mother there. (July 18, 1991

Tr. pp. 94-97)

The State's rebuttal witness D.etective Kevin Harney testified that

Defendant's parents had told him that Defendant's father had dropped

Defendant off at his home in Modesto about 9:00 p.m. (July 19, 1991, Tr. pp 57-

60;.July 18, 1991, Tr. pp. 3-10) Vernon McMillen denied that he told Detective

Harney that he dropped his son off at 9:00 p.m. (July 18, 1991 Tr., pp. 64-65)

Alberta McMillen denied that she told Detective Harney that her husband had

returned home about 9:40 p.m. after dropping their son off. (July 18, 1991 Tr.,

P. 70)

Billy Pocklington, then age 12, who lived with his mother Mary

Pocklington, testified that Defendant was at the Pocklington h?use.on June 24,

1989 when he, Billy, went to bed; that Donald Johnston, Gary Edgington and .. . . Defendant were at the house; that he did not see anyone leave the house; that

Johnston was sleeping outside under a tree that night and.did not leave that

night; that later that night around midnight, Billy awoke and went and curled

up in the bed where Defendant was asleep; and that when he awoke the next

morningDefendant was there and Johnston was still asleep out by the tree.

Billy also testified that he told the police that what. he testified to could have

occurred on June 23 and not June 24,1989. (July ,123, 1991 Tr. pp. 75-83)

FELDMAA', II'ASSER DRAPER & cox 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2171544-3403 Page 28 of ~JU Sangamon County No. 90 CF 328 F. Defendant's Trial Testimony Denying His Guilt: Taking the

stand at trial, Defendant asserted his innocence of the crime and put forth his

alibi defense. Defendant testified that on the afternoon of June 24, 1989, his

girlfriend Mary Pocklington took him to his parents house; that Mary told

Defendant she was going to be with Gary Edgington that night; that he later

tried to make contact with Mary, but when unable to do so started walkingto

Mary's house; that his father drove up and gave him a ride to Mary's house and

dropped him off at about 9:30 p.m.; that when he arrived, Donald Johnston and

Mary's two sons, Danny and Billy, were at the house; that Mary did not come

home that night; that Billy eventually went into the house to go to bed; that he

smoked a few more cigarettes then went into the house to go to bed at 1:00 a.m.;

that he saw Billy curled up on the love seat; that he saw Donald ~ohnstonand

Danny under a tree outside talking loudly; that he never told Det. Kevin

Harney that Johnston and Danny slept on the floor inside the house; that he

never saw Edgington; that sometime during the night, Billy came into his bed

and curled up next to him and that he eventually told Billy to get out of the bed

in case Mary came home; and that as of 5:00 a.m. the next day Mary had not

returned home. (July 18, 1991.Tr. pp. 97-119)

Defendant denied ever going to Simmi Pocklington's house in early hours

of' the next morning; denied telling anyone in the jail that he had killed, raped

or stabbed Melissa Koontz; denied stopping the car and stabbing Melissa

FELDMAN, JI'ASSER DRAPER & COX 1307 S. Sevallh St. Post Office Box 24 18 Springfield, IL 62705 2171544-3403 Page 29 of Z/w Sangamon County No. 90 CF 328 Koontz; denied going to a cornfield and stabbing Melissa Koontz; denied ever

being in a car with Johnston and Edgington at the same time; and denied going

in a car with Edgington and Danny Pocklington after 1O:OO p.m. to stop a car

and stab Melissa Koontz. (Id.)

The State's rebuttal witnesses, Sangamon County Sheriffs

Detectives Kevin Harney and David Leonard each testified that they .

interviewed the Defendant on July 14,1989and July 20,1989, respectively, and

in those interviews Defendant related to them his whereabouts on the night in

question. (July 18, 1991 Tr. pp. 5-9: Testimony of Det. Harney; (July 17, 1991

Tr. pp. 204-206: Testimony of Det. Leonard) Defendant's statements to the

detectives were consistent and were consistent with Defendant's testimony at

trial and that of his alibi witnesses. (Id.) Detective Leonard further testified

that on May 14,1990, he again spoke with Defendant who at that thetold him

that his father may have brought him home around ten and one o'clock, rather

than 9-9:30 p.m. and he couldn't remember which time. (July 17, 1991 Tr. p.

210)

G. Witness Mary Pocklington: Mary Pocklington testified that she

lived in Modesto with Defendant and with her four boys, including Billy and

Jeff; that on June 24, 1989, she left her house about 2:30-3:00 p.m. and drove

Defendant in her car to his parents house in Carlinville; that she then returned

home at about 7:00 p.m. and then left sometime later; that Defendant was not

FELDMAA; II'ASSER -, DRAPER & COX 1307 S Seventh St -- -- I post office BOX141s ' Spnngfield.1L 62705 2 171544-3403 Page 30 of 220 Sangamon County No. 90 CF 328 at her house between the time she returned and left again; that she was gone

all night, not returning until the next morning; and that upon returning she

found Defendant,'Danny and Billy and Donald Johnston at the house. (July 19,

1991 Tr. pp. 30-35, 45-46, 63-65)

H. State Rebuttal Witness Melinda Sawyer: Melinda Sawyer, age

15, testified as a rebuttal witness for the State. Sawyer testified that she knows

Defendant and that in mid-April 1990 when she was at Mary's house,

Defendant said he killed someone. (July 19, 1991 Tr. pp. 66-69) On

surrebuttal, Defendant testified that he never, made such a statement to

Sawyer. (July 19, 1991Tr. pp. 72-73)

Jailhouse Informant Testimony Implicating Defendant

13. At trial the State also presented the testimony of five jailhouse informants,

each of whom claimed that Defendant, while in custody in the county jail

awaiting trial, implicated himself in the crimes against Melissa Koontz. It

should be noted that when the trial judge ruled on the defense motion to move

the trial venue, the trial judge observed that there had been extensive pre-trial

publicity, even on the week before trial, which "detailed in great detail the

participation of this defendant as outlined by some other figure in this case,

allegedly stating that he indeed was the knife-wielder and said how many times

he used the knife." (Tr. June 11, 1991, pp. 2-3: Statement of Judge C. Joseph

FELDMAA', II'ASSER I DRAPER& COX 1307 S. SeventhSl. -- Post Oflice Box 24 18 ' Springfield, IL 62705 1 - 2 171.544-3403 Page 31 of ZZ/O Sangamon County No. 90 CP 328

- - Cavanagh) All of the jail house informants who testified claimed no knowledge I about the case from the media. As noted below, this jailhouse informant testimony is very suspect and in this case many of the admissions which the

informants claimed Defendant made are contradicted by other evidence.

A. Informant Carl Bowles: Bowles was arrested in April 1990 for

burglary of a home and had a prior retail theft conviction. Bowles was in the

Sangamon County jail and shared a cell with Richard Bottoms and William

Reed, two of the other jail house informants who testified against Defendant.

Bowles testified that in July 1990 when he arid his cell mates were smoking

cigarettes and discussing their cases, Defendant, who was housed in the cell

next to him, told him that he and three others-Johnston, another man and a

young kid who was kind of slow-waited on the side of the road to rob someone

to get beer money, but got carried away and raped the girl, then loaded her up

and dumped her in a cornfield in New Berlin, leaving the girl's car where they ( found it. Bowles testified that Defendant told him that Defendant was not going to be convicted because his parents were going to cover for him in that he

was babysitting. Bowles testified that Defendant stated they cut X's over the

victim's breasts and also cut her feet so she could not run away. Bowles also

testified that the girl went to school with Donald ~ohnstLfn.(July 16, 1991, Tr.

pp. 110-135)

Contrary to Bowles testimony, the autopsy on Melissa Koontz, revealed

FELDMAN, II'ASSER DRAPER R COX ' 1307 S. Seventh St. I Post Ollicc Box 24 18 - 4 Springficld,IL62705 4 - 2171544-3403 Page 32 of '2.m Sangamon County No. 90 CF 328 I I no cuts on her feet (July 17, 1991 Tr. p.33: Testimony of Dr. Grant Johnsoi~)~"

Contrary to Bowles testimony, the State's trial evidence indicated the body was

not found in or near New Berlin, but just outside Springfield. (July 17,1991Tr.

pp. 202-03: Testimony of Det. Leonard) Although Bowles testified that he did

not discuss his testimony with his cell mates or other inmates, and simply

decided to convey Defendant's statements to detectives, (July 16, 1991, Tr.

pp.122-23), his cell mates' testimony was very similar (see infra). Bowles also

admitted that he became a jail trustee just days after he gave his statement to

the detectives, although he attributed this trustee position to a reason unrelated

to the Defendant's case. (July 16, 1991 Tr. pp. 118-19, 125-26, 133) Moreover,

Bowles admitted that his written statement to police said nothing about

Defendant stating that his parents were going to lie for him and that he had not

thought of that until he testified. (Id. at 126)

B. Informant Richard Bottoms, a cell mate of Bowles, testified that

he was in Sangamon County Jail having been arrested on June 9, 1990; and

that Defendant told him on June 13, 1990, that he stabbed a lady; that

Defendant was with Danny, Donny and Gary and that they ran out of beer

money and were going to Springfield "to get some money one way or another";

that they pulled over a girl that Defendant recognized; that Defendant stabbed I\

I1 I 1; 22 The autopsy report indicated that the~ewas no breast tissue to examine. I , I , FELDiifAN, 1154SSER DRAPER & COX' 1307 S. Seve~ithSt - - - Post Oflice Box 24 18 Springfield, 1L 62705 - - , I 2171544-3403 Page 33 of 320 Sangamon County No. 90 CF 328

- I the girl; and that Defendant's girlfriend found a gold necklace in the back seat

of the car and turned it in to police. Bottoms also testified that Defendant

confessed to him almost every other day and never denied committing the crime.

(July 16, 1991 Tr. pp. 136-145)

Contrary to Bottoms' testimony, the State's occurrence witness, Donald

Johnston, did not place Mary Pocklington at the crime scene and other evidence

presented by the State was that Mary Pocklington turned a silver necklace over

to the police which came from her son. (July 18,1991 Tr. pp. 12-13: Testimony

of Det. John Pinneo; July, 17, 1991 Tr. p. 83: Testimony of Donald Johnston)

Moreover, the autopsy report identified a thin yellow metal chain around the

neck of the body. In addition, Bottoms admitted that he discussed with another

inmate named Davis about what Defendant had told him [Davis was another

inmate to testify against Defendant; see infra] and he never said anything to the

police until March 20, 1991, because it was bothering him and he was losing

sleep. (July 16, 1991 Tr. pp. 139, 140, 142-44: Testimony of Richard Bottoms)

At the time Bottoms testified he was serving a probation sentence for cannabis

possession and had two pending driving on revoked license charges pending

against him, but no promises were made to him. (Id. at pp. 136, 140, 144-45)

C. Informant Dexter Huddleston: Huddleston testified that at the

time of trial he had two prior felony drug possession convictions and a felony

theft conviction and was in jail for felony home invasion and for unlawful use

FELDMAA', If'ASSER DRAPER & CO,Y 1307 S. Seventh St. Post Office Box 2419 Springfield, IL 62705 2 171544-3403 Page 340f Tm Sangamon County No. 90 CF 328 of a weapon by a felon. Huddleston testified that on June 10, 1990, Defendant

told him that he and Gary Edgington intended to rob someone, they stopped

someone, took her to a secluded area, robbed her, took her to a secluded area an

raped her, and then killed her to prevent her from identifying them, with

Defendant stabbing her twice and then numerous times more; that they placed

the body in a cornfield; and that Defendant returned to the field the next day

because he was worried that the police had a chain from MaryPocklington.

(July 17, 1991 Tr. pp. 187-195)

Contrary to the testimony of Huddleston, there was no evidence that

Melissa Koonti had been robbed of any money, credit cards or purse. Although

Huddleston claimed no promises from .authorities for his testimony, he knew

that he was facing a minium of a six year prison sentence on the home invasion

charge because of his record. (Id. at pp. 190-92)

D. Informant William Reed (the other cell mate of informant Bowles)

testified that on June 19, 1990 [the same day Defendant is alleged to have

confessed to informant Huddleston] Defendant .told him that he had left the

house of his girlfriend, Mary, and went to his father's house at about 2:30 p.m.

on June 24, 1989 that he stayed at his father's house for dinner and his father

drove him back, to Mary's house, arriving there between 8:30-9:30 p.m.; that

Mary was present along with Johnston, Edgington'and Danny Pocklington; that

FELDAlAA', II'ASSER DRAPER & C0.Y 1307 S. Seventh St. Post Office Box 24 18 Springfield, 1L 62705 217A44-3403 Page 35 of 2,m Sangamon County No. 90 CP 328 he, Donald Johnston, Gary Edgington and Danny Pocklington left the house

about 10:OO p.m. intending to pull over someone driving on the road in order to

get money for beer; that about 10:30-11:OOp.m. Defendant forced the girl out of

a car and into their car; that they took the girl to a cornfield off the Waverly

blacktop and forced her out of the car to molest her; that Johnston made the girl

disrobe; and that they then killed her to prevent her from identifying them, with

Defendant stabbing her seven times at first and then numerous times after

that; that they left the girl's nude body in the cornfield; that they took a

necklace from the girl which necklace was later found by a young girl in the . . backseat of the Chevy in which they had abducted, the girl. Reed further

testified that on the night of June,23, 1990, Defendant was real nervous and

came to talk.to him; that Defendant told Reed that without the weapon they

co.uld not find him guilty; and that he said that this was one year since the girl

was killed and Defendant was upset that everyone was testifying against him.

At the time he testified, Reed had a prior felony theft conviction and was

,. . awaiting sentencing on a felony possession of drugs with intent to deliver , but

no promises of any benefit had been made to him. (July 18,1991Tr. pp. 20-32)

Contrary to Reed's testimony, the State's evidence at trial indicated the

body was found fully clothed, and that no girls were present at the time of the . . crime according to the State's key witness Johnston. Contrary to Reed's

testimony, Johnston never testified nor told police that he had anything to do

FELDMAN, II'ASSER , DRAPER& cox 1307 S. Seventh St. Post Office Box 2418 --I -,,: I Springfield,IL 62705 2 171544-3403 Page 36 of Z/W Sangamon County No:90 CF 328 with molesting Melissa Koontz. Moreover, it is simply not believable that the

Defendant in confessing his crime to a fellow inmate a year after the crime was

supposed to have been committed, would be telling this inmate precise times of

day when events happened.

E. Informant Jonathan Davis, with whom informant Bottoms

discussed Defendant's alleged confession, testified that Defendant told him on

July 11,1990, that he had stabbed the girl so many times and he was crying at

the time; and that he asked Davis to keep this to himself as the only other . . person who knows is Bottoms. Davis testified that at the time of trial he had

a prior felony theft conviction and was serving a probation sentence and was in

custody for possession of a stolen motor vehicle. Davis testified that he knew

nothing about the case prior to speaking with Defendant but that after speaking

with Defendant, other inmates told him why Defendant was in custody. (July

18, 1991,Tr.pp. 32-37)

The unreliability of jailhouse informant testimony, particularly in capital

cases, has been the subject of much study and attention:

A. At the time of trial, Defendant faced the death penalty. [730 ILCS 515-

5-3(c)(l)] In 1999, years after Defendant's trial, the then Governor of Illinois,

George Ryan assembled a Commission on Capital Punishment that studied

flaws in the Illinois death penalty system that led to innocent persons being

convicted. The Commission reported that "[tlestimony from in-custody

FELDIIAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post Ofice Bar 2418 Springfield, ILG2705 2 171544-3403 Page 37 of sw Sangamon County No. 90 CF 328 witnesses has often been shown to have been false, and several of the thirteen

cases of men released from death row involved, at least in part, testimony from

an in-custody inf~rmant."~~The Illinois General Assembly adopted the

recommendations of the Commission on Capital Punishment to require a pre-

trial hearing to determine the reliability ofjailhouse informant testimony before

the testimony is allowed. 725 ILCS 51115-21. No such reliability hearing was

held in Defendant's case.

B. According to a 1999 Chicago Tribune investigative report on the use

of jailhouse informants, prosecutors in Illinois who were interviewed

acknowledged that jailhouse informants were unreliable witnesses.24 An

American Bar Association study on jailhouse informants similarly called into

question the reliability of such inf0rmants.2~A Canadian review of jailhouse 1 informants concluded that jailhouse informants are "the most deceitful and

- 23The Commission's report is available at: h ttp:Ilwww.idoc.state.il.uslccp/ccplreports/index.html

24Seethe November 16, 1999 Chicago Tribune article The Failure of the Death -E'enaltv In Illinois: Part 3 The iailhouse informant, which is set forth at: h~ttp:llwww.cl~icagotribune.comlnewslwatchdoglchi-991116deathillinois3,O,6O99699. Story?p age=l

25 See the ARA website setting forth the article Jailhouse Informants, by Robert I3loom from Criminal Justice Magazine, Vol. 18, No. 1, Spring 2003 set forth at: 1lttp:Ilwww. abanet.org/crimjustIspring20031jailhouse .html

FELDALIIY, IVASSER DRAPER & COY 1307 S. Seventh St. Pbst Office Box 2419 Springfield, IL 62705 2171544-3403 Page 38 of %w Sangamon County No. 90 CF 328 deceptive group of witnesses known to frequent the courts."2G

Clearly, the testimony which the State offered of five jailhouse

informants to bolster the questionable testimony of the State's key witness,

Donald Johnston, must seriously be called into question and should not foreclose

this Court in determining that identification of Defendant was the issue at trial

and in allowing the requested testing to occur. C.f. In re Michael, 326 U.S. 224,

227 (1945)("[a]llperjured relevant testimony is at war with justice, since it may

produce a judgment not resting on truth." )

Defendant Had Persisted In His Innocence Before His Arrest Even In The Face of a Concentrated State Effort Pushing Him To Confess

On May 14, 1990, detectives interrogated Defendant trying to elicit his

confession to the crime. Their efforts failed as Defendant maintained his

innocence. (July 17,1991Tr. p. 207-208: Testimony of Det. David T. Leonard)

FOIA#194: Report of Det. David Leonard) Also on May 14, 1990, Defendant

came to the courthouse pursuant to a State subpoena issued on the pretext of

having Defendant testifying in the State's case against Donald Johnston.

2G See Sophonow Insuirv: Jailhouse Informants. Their Unreliabilitv and the Importance of Complete Crown Disclosure Pertaining to Them, being that part of thereport of the Commission of Inquiry pursuant to the Manitoba Evidence Act following the exoneration of Thomas Sophonow previously convicted of homicide, said report chapter being set forth at the ''Province of Manitoba Justice" website at: http://www .gov.mb.ca/justice/publicationslsophonow/toc.html. I

FELDMAN, II'ASSER DRAPER & COX 1307 S. Se\*cnthSt. Post OfficeBox 24 18 Springfield. IL 62705 2171544-3403 Page 39 of s7,Q Sangamon County No. 90 CF 328 Defendant was purposefully placed together with Johnston. Johnston was

wired for sound and, cooperating with authorities, Johnston attempted to get

Defendant to admit his involvement in the death of Melissa Koontz. During the

video-taping Johnston kept telling Defendant he stabbed Melissa Koontz but

Defendant denied it. At one point Gary Edgington, who had at that time agreed

to cooperate, also entered the room in an attempt to get Defendant to admit his

involvement in the crime, however Defendant denied his involvement. (july 17,

1991Tr. pp. l30--31,133,l43,146: Testimony of Donald Johnston; July 17,1991

Tr. p. 207-209: Testimony of Det. David T. Leonard)

The video tape, which was played to the jury at trial, evidenced that

Defendant consistently denied any involvement in the crime. (Joint Exhibit 20;

July 16,1991Tr. pp. 107-08) The DMof the May 15,1990video of Johnston

and McMillen is attached hereto as Attachment D (the actual.DVD is retained

by Defendant's counsel andwill be produced to the Court and the State upon

request). . .

Evidence Implicating A Different Perpetrator

After discovering Melissa Koontz's vehicle and seeing no evidence of any

struggle, Officer Sample reported: "The only other remote thing that I could

think of would be to have someone go to Cub Foods and just see if anything out

of the ordinary happened." (FOIA#315: Dep. A1 Sample & Dispatcher Radio

FELDMAA', II'ASSER DRAPER & COX 1307 S. Scvmlh St. Post Office Box 24 I8 Springfield, LL 62705 21715444403 Page 40 of %m Sangamon County No. 90 CF 328 Transcript) As indicated by the Affidavit of William R. Clutter, at pars. 17-20,

case investigation reports evidence interviews of four witnesses who, on the

night of June 24, 1989, had been in the parking lot of the store where Melissa

Koontz worked, which interviews indicate that the perpetrator may have been

at Melissa Koontz's place of employment at or about the time Koontz left work, *

a time period in which Defendant was placed by his alibi witnesses, and even

witness Johnston, to be elsewhere. The June 28, 1989 Sangamon County

Sheriffs Department supplemental investigative report recites that a witness

said he had observed Melissa Koontz speak to a white male subject on a couple

of occasions on the Cub Food parking lot and that the subject was in a small red

pick-up truck. (FOIA#1396: Report of ~or~an.County Sheriff Det. Jerry Lieb)

The Sangamon County Sheriffs office "Case Summary'' of the arrest of Donald

Johnston reported that Johnston was picked up by a driver of a white over red

pick up truck and the driver named "GeorgeJ'was the one who stopped the car

and stabbed Melissa Koontz. (FOIA#1619: )27 AS noted above; Johnston had

told police at one time that the perpetrator of the crime drove such a truck.

(July 17, 1991 Tr., pp. 110-112; FOIAH14-21: Report of Det.. James Mitchell)

"Donald Edgington told police on October 22, 1989 that Gary Edgington had rotten rid of a "white pickup truck... shortly after the body was found". (FOIA#1428: teport of Morgan County Sheriffs Det. Randy Duvendack)

FELDMAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 2418 Springfield, lL 62705 2171544-3403 . Page 41 of %w Sangamon County No. 90 CF 328 The Untested Physical Evidence Secured In Relation To The Trial

Several pieces of physical evidence were secured in relation to the trial of

Defendant, however none of that evidence has been subjected to DNA testing:

A. Hair and Fingernails: The autopsy report of Melissa Koontz

prepared by Dr. Grant Johnson (July 17, 1991 Tr. pp. 3, 8: Testimony of Dr.

Grant Johnson) recites that a "rape kit" (also known as a Vitullo kit) was

collected by Sangamon County Sheriffs Detective David Leonard. (FOIA##1014,

1093: Reports of Det. David Leonard). That rape kit was turned over to ISP

Forensic Scientist William Frank. (FOIA#1116, 1138: Reports of William E.

Frank) Frank's report indicates that the "rape kit" contained nail scrapings

from both the right and left hand, identified as Exhibits 31E-1 and 31E-2, and

two pubic hairs identified as Exhibit 31F. (Id.). Frank's reports indicate no lab

work on the pubic hairs. Frank's report indicates that blood was indicated

and/or identified from the nail scrapings, but no further analysis of this

evidence was made by anyone. (FOIA # 1138)

In addition, hair evidence was recovered from Melissa Koontz's vehicle

was turned over to ISP Forensic Scientist William Frank. (FOIA#1041-1046:

Report of Crime Scene Technician Paul Schuh) Frank collected hair and fibers

from the tapings, but Frank's report indicates no further analysis of the hair

collected by the tapings. (FOIA # 1116-17, 1137-1141: Reports of William E.

Frank)

FELDAfAA', IKASSER DRAPER & COX 1307 S. Seventh St Post Office Box 24 18 Springfield,IL 62705 217A44-3403 Page 42 of 2w Sangamon County No. 90 CF 328 B. ' Clothing: ~r.Johnson's autopsy report evidenced that Melissa

Koontz's body was clothed with, among other things, a shirt, a bra and

underwear. (July 17, 1991 Tr. pp.19, 22-23: Testimony of Dr. Grant Johnson)

The report of law enforcement officers observing the body reported that Melissa

Koontz was wearing, among other things, a 'peach-colored floral skirt that I appeared "to have been rolled upwards." (FOIM 423-424: Report of Asst. Chief I Terry Castleman) These items of clothing were turned over to ISP Forensic Scientist William Frank whose report indicates that hairs were collected from

this evidence and that there was an indication of blood on some of the clothing,

but no fur.ther analysis of this evidence was reported. (FOIA #1137-1141:

Report of William E. Frank)

C. Fingerprints: Crime Scene Technician Schuh lifted several

fingerprints from Melissa Koontz's vehicle. (July 17, 1991 Tr. pp. 147-156:

Testimony of Paul Schuh) The fingerprint evidence was submitted to Illinois

State Police Forensic Scientist Gary Havey. Elimination prints were collected

from persons identified 'as possibly having come in contact with the vehicle.

Havey could not identify, four latent impressions lifted from the vehicle, but

found that these four latent impressions did not match the fingerprints of I Defendant, Gary Edgington, Donald Johnston, Melissa Koontz, persons from Melissa Koontz's family andlor members of law enforcement that had contact I with the vehicle. (FOIA# 1019-1025, 1432, 1434-40, 1472-93: Reports of ISP

,I FELDMAN, II'ASSER DRAPER S COX 1307 S. Seventh St. L,' Port Oflice Box 24 18 Springfield, lL 62705 7 2171544-3403 Page 43 of Sangainon County No. 90 CF 328 \-2 Forensic Scientist Gary L. Havey and ISP Bureau of Forensic Sciences Evidence

Logs)

At the request of the 'Downstate Illinois Innocence Project, on September

26, 2008, the State tested these previously unidentified latent fingerprints by

submitting them for identification into the FBI's Integrated Automated

Fingerprint Identification System ("IAFIS").28 These fingerprints have been

matched to a person other than Defendant or any other person implicated in the

crime. See Affidavit of William R. Clutter, pars. 24-26.

1 Furthermore, comparative-biological samples from Defendant, Edgington and

Johnston are available for testing, the samples having been collected pursuant

to the State's motions. (C.26-27; FOIA#1544; FOIA##1198, 1531) As noted in

paragraph 6, supra, this evidence should be preserved by the State under

Section 116-4 of the Illinois Criminal Code (725 ILCS 51116-4) and per the

representation of Captain Hendrickson.

Defendant's Requested DNA Testing

By this Motion, Defendant seeks to perform DNA testing of hair, nail scraping

and clothing evidence. None of this evidence was subjected to DNA testing as

of the time of trial.

28For a description of this identification system, see the FBI website at: http:Ilwww.fbi.govlhqlcjisdliafis.htm.

FEI.DMAAr, IVASSER DRAPER & COX 1307 S. SeventhSt. Post Ofice Box 24 18 Springfield,IL 62705 2171544.3403 Page 44 of Z/m Sangamon County No. 90 CF 328 A. DNA profiling was developed in the 1980's and began being used as

a forensic tool. Various methods of DNA analysis have changed and improved

over time, becoming more exacting and discriminating. See Brandon L. Garett,

Claiming Innocence, 92 Minn. L. Rev.' 1629, 1658-59 (2008). DNA technology

has become a powerful tool for identifying offenders and eliminating innocent

suspects. According to the Innocence Project, as of 2009, post-conviction DNA

testing has been used to exonerate 245 people in the United States, including

29 in cases in the State of Illin~is.~~

Illinois courts have ruled that DNA identification procedures and the

FBI's method of calculating statistical probability of random match are

generally accepted inthe scientific community and need not be subjected to Frye

hearings. See e.g. In re Jessica M. 385 Ill. App.3d 894, 897 N.E.2d 810 (lstDist.

2008); People v. Rokita, 316 Ill. App. 3d 292, 299, 736 N.E.2d 205 (5th Dist.

2000); People v. Oliver, 306 Ill. App.3d 59, 66, 713 N.E.2d 727, 734 (let

Dist.1999); People v..Pope, 284 Ill. App.3d 695, 703-05, 672 N.E.2d 1321 (4th

Dist. 1996); People v. Miller, 173 111.28 167,188; 670 N.E.2d 721 (1996); People

v. Mehlberg, 249 Ill. App. 3d 499, 619 N.E.2d 1168 (5th Dist. 1993).

B. Mitochondria DNA Testing: The Downstate Illinois Innocence

Project has made arrangements with Dr. Terry Melton, owner of Mitotyping

Technologies,LLC, State College, Pennsylvania, toperform mitochondrialDNA

29 See The Innocence Project website at: http :llwww .innocenceproject .org/

FELDMAA', lflASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springfield.IL 62705 2171544-3403 Page 45 of 2.m Sangamon County No. 90 CF 328 testing of the hair samples in this case should Defendant's Motion be. granted.

This laboratory, which began mtDNA testing in February 1999, is one of the

first private laboratories in the nation to perform mitochondria1 DNA testing of

hair evidence. This laboratory is fully accredited and is in compliance with the

DNA Quality Assurance Standards established by the Federal Bureau of

~nvesti~ation.~'See the Affidavit of Dr. Terry Melton appended hereto as

Attachment E.

Mitochondrial DNA ('mtDNA") testing3' was introduced in the 1990's for

testing biological samples that proved tiaditionally unsatisfactory for :

traditional testing of DNA from the nucleusof cells. First used by the FBI in

1996, mtDNA testing makes it possible to obtain an mtDNA type where only

a limited biological sample can be obtained for'testing due to sample quantity,

30 These standards 'can be found on the FBI . website at: .ttp://~~~:fbi.gov/hqllab/codis/forensic.htm

31 The sources for the information in this Motion about mtDNA testing comes rom: (a) the Affidavit of Dr. Terry Melton appended hereto as Attachment E; (b) the 'BI report, Mitochondrial DNA Analvsis at the FBI Laboratorv, found at: ~ttp://www.fbi.gov/hq/lab/fschackissu/julyl999/dnatext.htm#Introduction;(c) Cold Jase Homicides: Practical Investigative Techniques by Richard Walton, (2006 CRC 'ress) [excerpted at http://books.google.com/books?id=ayHrO1nFX6LYC&pg= 'A33 5&lpg=PA33 5 &dq=mitochondria+dna+versus+nuclear+dna&source=bl&ots=r ~--~59xp2&sig=8AdshYv3S4GSCReKdE3pEysKgk&hl=en&ei=JrClStTDJMHjnAfk Ny7BQ&sa=X&oi=book~result&ct=result&resnum=9#v=onepage&q=&f=false~, and d) Mitochondrial DNA sequence analysis: validation and use for forensic casework by d.M. Holland andT.J. Parsons 1999, Forensic Science Review, volume 11,pages 25-51, ivailable at http:llwww.mitotyping.com/5985929281158l/lib/598592928ll58ll lollandParsons1999.pdf.

FELDllIAA; 1154SSER DUPER & COZY 1307 S. Seventh St. Post Office Box 24 IS Springfield, 1L 62705 2171544-3403 Page 46 of zm . Sangamon County No: 90 CF 328 degradation or age. Since human hair roots do not contain sufficient nuclear

DNA for traditional DNA testing, mtDNA testing is deemed well suited for

testing of DNA samples obtained from hair where no hair root sample is

necessary.

As reported by the FBI,32Mitochondria1 DNA analyses has been admitted

into criminal proceedings in numerous states, including Illinois, and used in

criminal trials in Australia, the United Kingdom, and several other European

countries. A collection of state cases, as of 2008, in which mtDNA evidence has

been admitted has been collected by the Denver, Colorado District Attorneys'

office at the following website: http:llwww.denverda.org/DNA/Mitochondrial~

DNA-Legal-Decisions.htm. Federal courts are also recognizing mtDNA testing

evidence. See e.g. U.S. v. Beverly, 369 F.3d 516 (6th Cir. 2004)(extensive

discussion of mtDNA testing).

In Illinois, mitochondria1 DNA evidence was admitted at trial in People

v. Sutlzerland, 223 111.2d 187, 860 N.E.2d 178 (2006). In that case, the Illinois

Supreme Court affirmed a first degree murder, kidnapping and sexual assault

conviction. At the trial in the Sutherland case, mtDNA evidence was explained

and presented by two experts in the application of DNA and mtDNA techniques

in forensic testing, and by Dr. Terry Melton, whose lab, Mitotyping

Technologies, performed the mtDNA analysis on the pubic hairs in that case.

32http://~~~.fbi.gov/hq/lab/fsc/backissu/july1999/dnatext.htm#Introduction

FELDMAAnnII'ASSER DR.4 PER & COZY 1307 S. Seventh St. Post Office Box 2418 Springfield, IL 62705 2171544-3403 Page 47 of zm Sangamon County No. 90 CF 328 See also People v. Gonzalez, 379 Ill. App. 3d 941, 884 N.E.2d 228 (lBtDist.

2008)(conviction of first degree murder affirmed in cake where trial court

admitted evidence of mtDNA testing by Dr. Constance Fisher, an expert in the field

of forensic mtDNA analysis with the FBI).

Mitochondria1 DNA is not a unique identifier because all maternally

related individuals (brotherslsisters or motheddaughters), absent evidence of

mutation, have the exact same mtDNA, as mtDNA is inherited strictly from

one's mother. However, ~~DNAtyping can confirm that a known individual can

be excluded as the donor of the questioned sample. Thus mtDNA testing can

exclude Defendant as having been the source of cell material recovered from the

hair, clothing and rape it evidence in this case.

C. "Touch DNA": The Downstate Innocence Project has made

arrangements with Richard Eikelenboom and Selma Eikelenboom,,,owners of

Independent Forensic Services ("IF'S"), Hulshorts, The Netherlands, to conduct

"Touch DNA" sampling and testing of Melissa Koontz's clothing. This

laboratory specializes in the use of the "Touch DNA" process. This laboratory,

is a fully accredited under International Organization for Standardization,

Laboratory Standard 1702533and uses the same equipment as that used in the

331nformation about this standard can be found at: http ://www.iso.org~liso/catalogue~detail'.htm?csnumber=39883; http://www .isoiec17025.com/; and at http://www.quality.co.uk/custpage.htm. FELDMAN, IIXSSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springficld. IL 62705 2 171544-3403 Page 48 of 2/m . Sangamon County No. 90 CF 328 United States. See Affidavit of Richard Eikelenboom, par. 1, appended hereto

as Attachment F.

"Touch DNA" refers to the DNA that is left behind from cell material

when a person touches or comes into contact with an item.34 More broadly,

"Touch DNA" is the term given to the collective process of recovering and testing

trace amounts of DNA recovered from cell material. This trace evidence may

be recovered from the fabric of clothing of a victim of a violent crime where the

trace evidence has become embedded by reason of a perpetrator having touched

the victim's clothing. "Touch DNA" focuses on recovery of DNA samples i?om

areas on the victim's clothing at locations where the crime file anilysis would

indicate where a perpetrator may have had contact. For it is at those areas that

there. would be expected greater likelihood of finding cell material left by a

perpetrator. Once the trace evidence is recovered, it is analyzed for the presence

of DNA in order to develop a DNA profile. Standard recognized DNA testing

techniques are then utilized to develop the DNA profile.

IF'S has made a preliminary review of the crime scene evidence and

homicide case photos in the case at bar and believes that the laboratory may be

able to identify points of contact between the perpetrator and Melissa Koontz

34See Affidavit of Richard Eikelenboom at pars. 3-4. The source of this nformation about "Touch DNA" comes also from the Bode Technology website found ~t:http://74.125.95.132/search?q=cache:yJatYYehJ8wJ:www.bodetech.com/ ~echnologies/touch-dna+touch+dna&cd=4&hl=en&ct=clnk&gl=us&client=firefoxa.

FELDMAN, II'ASSER DRAPER & COX 1307 S. Seventh SI. Post Office Box 2415 Sp~ingfield,1L 62705 21 71544.3403 Page 49 of 27J0 Sangamon County No. 90 CF 328 that may yield DNA evidence, similar to what the laboratory was able to do in

the case of Timothy Masters, a case in which the Eikelenboom's laboratory

recovered skin epithelial cells from a crime victim's clothing in a twenty-year

old murder case. See Affidavit of Richard Eikelenboom, pars. 6-7. In the

Masters case, Richard Eikelenboom was accepted by the court as an expert in

DNA and trace recovery. Although Masters murder conviction had previously

been affirmed by the Colorado Appellate and Supreme Courts [Masters v.

People, 58 P. 3d 391 (Colo. 2002)], the laboratory's DNA testing of the clothing

in the Masters case, as confirmed by DNA testing by the Colorado Bureau of

Investigation, yielded DNA proflles which exonerated Masters. See the

Affidavit of Richard Eikelenboom at par. 4.36

C. Other PCR-STR DNA Testing Generally Accepted in the

Scientific Community: Defendant also intends to have the hair and "rape

kit" evidence subjected to standard PCR DNA testing by the Independent

Forensic Services laboratory and by Genetic Technologies, Inc., Glencoe,

Missouri, a laboratory accredited by The American Society of Crime Laboratory

DirectordLaboratory Accreditation Board, the most stringent accreditation

36See also the newspaper reports on the Masters case: ittp://74.125.95.132lsearch?q=cache:mGkAoWzciQEJ:www.rockymountainnews.co n/news/2008/ju1/09/touch-dna-same-was-used-free-masters/+touch+dna+masters&c l=3&hl=en&ct=clnk&gl=us;and http://74.125.95.132/search?q=cache:Bi9qlwHhYRkJ: ivww .denverpost.com/news/ci~8079134+timothy+masters+exoneration&cd=13&hl=e n&ct=clnk&gl=us&client=firefox-a. FELDI~~AX,IlVSSER DRAPER & COX 1307 S. Seventh St. Past Office Box 24 18 Springfield.IL 62705 2 171544-3403 Page 50 of %m Sangamon County No. 90 CF 328 program for forensic laboratories in the United States.36 This testing will

include standard PCR-STR as well as Y-STR DNA testing.37

PCR DNA testing, known more specifically as the polymerase chain

reaction method of DNA testing, is simply a technique in which amplifies

(copies) a specific region of a DNA strand in order to develop a DNA profile to

be compared against known DNA profiles. PCR testing is accepted by the

scientific community. See People v. Pope, 284 Ill. App.3d 695, 703-05, 672

N.E.2d 1321 (4th Dist. 1996) (collecting cases); People v;Oliver, 306 Ill. App.3d

59, 66, 713 N.E.2d 727, 734 (lBtDist.1999). Short tandem kepeat ("STR,")

technology is a forensic analysis that evaluates by PCR testing 13 specific

. regions (loci) that are found on nuclear DNA which have been found to be highly . . variable among individuals. thus resulting in a more discriminating test result.

In People v. Rokita, 316 Ill. App.3d 292, 736 N.E.2d 205, 211 (5th Dist.2000), a,

case involving the issue of granting post-conviction DNA testing under Section

i16-3, the Fifth District noted the State's argument that the State did not

dispute that STR-based DNA testing was now generally accepted in the relevant

scientific community. See also State v. Jackson, 255 Neb. 68, 582 N.W.2d 317,

3GSeethe Genetic Technologies website at: http:llwww.genetictechnologies.com/ See also the ASCLAD website at: http://www.ascld.org/.

37Fora basic overview of DNA testing, see Chapter 2 and Appendices 1-3of the U.S. Department of Justice Office of Inspector General May 2004 report entit1ed:m FBI DNA Laboratory: A Review of Protocol and Practice Vulnerabilities set forth at: http:Ilwww .justice.govloiglspeciallO405lfinal.p df. TELDIMAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post ORicc Box 24 18 Springfield, IL62705 2 171544-3403 Page 51 of ZW Sangamon County No. 90 CF 328 325 (Neb. S. Ct.,l998)(PCRISTR testing has " 'been around several years now,

and there is nothing unique about PCR-STR versus any PCR' "). See also A

SHORT PRIMER ON STRs - Why Do Prosecutors Need to Learn About STRs?

Silent Witness Newsletter, Vol. 4, No. 9 (American Prosecutors Research

Institute 1999)f'STR testing is based on the scientific principles of other

generally accepted methodologies.") Y-STR DNA testing is simply standard

STR-PRC testing that focuses on the DNA from cell material which is identified.

from the testing as coming from the male Y chromosome where DNA testing

reveals a mixture of male and female DNA. Although no Illinois court has ruled '

on the admission of Y-STR DNA testing, several courts in other states have

recognized the admissibility of such testing.38 The. FBI recognizes and has

issued standards for interpreting Y-STR DNA testing results.89

PCR-STR testing methodology has been deemed by numerous states to

be generally accepted in the scientific community so as to be admissible. See

e.g. State v. Traylor, 656 N.W.2d 885 (Minn. S.Ct. 2003); State v. DeLoatch, 354

N.J. Super. 76, 804 A. 2d 604 (N.J. 2002); Lemour v. State, 802 So. 2d 402 (Fla.

Dist. ,Ct. 2001); People v. Slzreck, 22 P.3d 68 (Colo. S. Ct. 2001).

"These cases are collected in part on the webpage of the Denver, Colorado Xstrict Attorney's office found at: http:I/www.denverda.orglDNA/Y-chromosome- INA-Lega-%20Decisions.htm.

39Seethe FBI standards and guidelines set forth at: http://www.fbi.gov/hq/ .ablfsclbackissu/jan2009/standards/2009~01-standardsol. htm. FELDMAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Sp~gfidd,IL 62705 21715444403 Page 52 of 2m Sangamon County No. 90 CF 328 The Testing Will Produce New, Non-Cumulative Evidence Relevant To Defendant's Assertion of Actual Innocence

Defendant stands convicted of first degree murder, armed robbery and

attempted aggravated kidnapping. Defendant has consistently maintained his

innocence. Defendant has been incarcerated since his 1990 arrest for crimes he

claims he did not commit and since 1991, he has been serving a natural life in

prison. Clearly allowing the requested testing is of the utmost importance for

it could result in physical evidence which is clearly relevant to Defendant's

claim of actual innocence.

The forensic DNA testing requested by Defendant would produce new,

noncumulative evidence which would significantly advance Defendant's claim

of actual innocence and would, if exculpatory, be so conclusive that it would

probably change the result on retrial. At trial Defendant testified that he did

not commit the charged crimes and presented testimony ofwitnesses in support

of his alibi defense which placed him away from the crime scenes. The State

presented no physical evidence connecting Defendant to the crime or the crime

scenes other than the extremely circumstantial evidence of the necklace. The

hair, rape kit and clothing evidence collected during the case investigation was

not forensically tested at all and thus any such forensic DNA testing as now

requested would be new and noncumulative evidence. The DNA evidence to be

adduced by the requested forensic testing, if it excludes Defendant as the source

of the DNA, would raise significant doubt at any re-trial as to Defendant's

FELDMAN, II'ASSER DRAPER & COS 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2171544-3403 Page 53 of 2m Sangamon County No. 90 CF 328 involvement with. the, abduction and murder at issue in this case. This is

particularly the casein view of the very questionable reliability of the State's

key witness, who has recently recanted his testimony implicating Defendant,

and in view of the very questionable reliability of the jailhouse informant

testimony offered by the State to buttress the testimony of the State's key

witness. In addition, evidence was presented'at trial that latent fingerprints on

the vehicle from which the crime victim was alleged to have been abducted did

not match Defendant, but has now been matched to anidentified individual

whose name appears nowhere.in the police investigation of this case; and the

new DNA evidence sought by this Motion may implicate this individual, thus

,exonerating Defendant. Further the case investigation reports and statements

made by the State's key witness Donald Johnston point to a person in a white

and red pick-up truck that perpetrated the crime. Lastly, the DNA evidence to

be adduced may point solely to Gary Edgington who confessed to the crime

and/or to Donald Johnston who made statements implicating himself as a

perpetrator of the crime.

Moreover the only testimony linking Defendant to the crime was by any

accounts, based upon less than reliable. testimony. The key witness for the

State, Donald Johnston, a mentally slow alcoholic, who gave numerous and

contradictory versions of the events of the crime, who admitted to others that

he killed Melissa Koontz, who was cooperating in the face of a possible death

FELDAMN. II'ASSER DRAPER & COX 1307 S. Seventh St. Post Ofice Box 2418 Springfield, IL 62705 2 171544-3403 Page 54 of 2w Sangamon County No. 90 CF 328 penalty sentence for himself, has now recanted and a professional review of his

circumstances and testimony raises a serious question of false confession.

Johnston's trial testimony implicating Defendant, although apparently accepted I by the jury, was extremely questionable. The testimony of jailhouse informants are notoriously unreliable and their testimony in this case, given their admitted

inter-dealings, their consistency and the benefits that they knew, as experienced

felons, they could gain makes their testimony extremely suspect and not enough

to take away from the fact that Defendant's identity as the guilty party was the

issue at trial.

22. Lastly, the Court should note the First District's observations in People u.

Henderson, 343 Ill. App. 3d 1109,799N.iE.2d 682,692 (lStDist. 2003), in which

the First District reversed a trial court's denial of a Section 116-3 Petition in a

case in which the defendant therein was alleged to have participated in a rape ) crime along with another co-defendant: In deciding whether to order DNA testing in cases involving multiple offenders and accountability, trial courts should keep in mind that these factors were present in two of the most widely known cases in which DNA testing produced evidence which freed erroneously convicted individuals-the 'Ford Heights Four' and the persons initially charged with the murder of Loaura Roscetti. (See, E. Connors, Convicted by Juries, Exonerated by Science, U.S. Department of Justice (1996)(for case studies involving the use of DNA evidence to establish innocence after' trial)

Moreover, noting the Illinois Supreme Court's concern about collapsing a Section 1 116-3 inquiry with an actual innocenceinquiry, the First District observed that

FELDIIMN, IIGISSER DIMPER & C0,Y 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 , 2171544.3403 Page 55 of >m Sangamon County No. 90 CF 328 "[tlhe factors that trial courts often rely on in denying section 116-3 motions are

really more appropriately addressed in postconviction proceedings when the

results of the testing may be considered." 799 N.E.2d at 693-94. ,'

WHEREFORE, for all of the foregoing reasons, Defendant Thomas McMillen

1) (praysthat this Court enter its Order: I 1 1. Granting this Petition; 2. Ordering the Sangamon County Sheriffs office to timely locate and properly

secure and transfer the clothing of Melissa Koontz, the "rape kit" evidence, including

the hair and nail scrapings therein, and the hair evidence collected fkom tapings atthe

crime scenes, complete with all chain of custody paperwork related thereto, to facilitate

DNA testing for the piesence of cell material, by the qualified and accredited

laboratories identified in this Motion with which the Downstate Illinois Innocence

Project has made testing arrangements, or with such other qualified and accredited

laboratories as agreed to by the State and the Defendant, all at the expense of the

Defendant and the Downstate Illinois Innocence Project;

3. Ordering that all such evidence transferred to said laboratories be secured

by a proper chain of custody and that all such evidence, so transferred to and tested

by a laboratory, be returned with a proper chain of custody to the Sangamon County

Sheriffs office;

4. Granting Such Further Relief as this Court deems warranted.

I FELDBIAN, IIMSSER - DRAPER & C0.Y 1307 S Seventh St. - -& post Office BOX 24 I 8 Springfield, IL 62705 4 - 1 217644-3403 Page 56 of z/W . , Sangamon County No. 90 CF 328 THOMAS MCMILLEN, Defendant

By: L4 -. stanWy N. Wasser # #2947307 One of His Attorneys

If Counsel:

loward W. Feldman lessica L. Reese

CERTIFICATE OF SERVICE

Fhe undersigned of FELDMAN, WASSER, DRAPER & COX hereby certifies that a :opy of the foregoing document was served upon each of the addressees hereinafter set brth by enclosing the same in an envelope plainly addressed to each of the said 2ddresses, with postage fully prepaid, and depositing same in a U.S. 'Mail Box in Springfield, Illinois on this 12h day of h.rw ,2009:

John Schmidt Sangamon County State's Attorney Sangamon County Complex 200 S.. gth Street, Rm 402 Springfield, IL 62701

ind that the original was filed with the Clerk' of the Court in which said cause .is lending.

1 FELDMAIY. JI%SSER -, DRAPER & COX 1307 S Sevcntll St - -4 Post Office BOA24 I8 Springfield, IL 62705 A - 2 171544-3403 Page 57 of &w Sangamon County No. 90 CF 328 i - - 1 .-: