67 the innocence project has confirmed that the

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67. The Innocence Project has confirmed that the biological evidence Petitioner seeks to subject to post-conviction DNA analysis still exists and is currently in the possession of the Westchester County Department of Laboratories and Research (“the Westchester Lab”) in Valhalla, New York. On March 15, undersigned counsel was informed by telephone by Linda Duffy of the Westchester Laboratory that she was present on the day of Ms. Correa’s autopsy, when the Medical Examiner collected numerous vaginal swabs containing semen and spermatozoa. Indeed, at Ms. Duffy’s request, “extra” swabs were collected at autopsy to preserve for future testing. Ms. Duffy reported that it was her understanding that only one or two of these swabs had been tested by the F.B.I. during the original investigation and that numerous additional swabs remained available in frozen 16 The testing excluded Dabbs as the source of the seminal fluid found in the victim’s underwear, and his conviction was vacated and indictment dismissed nine years after his conviction. Id. at 769 n.3. 26
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storage for testing at this time. She graciously agreed to search the lab’s storage areas for those items. 68. On April 14, 2006, undersigned counsel received a telephone call from Ms. Duffy confirming that she had successfully located these samples at the laboratory. These materials include both previously-untested vaginal swabs as well as DNA extract materials returned to the laboratory by the F.B.I. in 1990. A written list of the items of biological evidence which are available for testing will be prepared. 69. This case, of course, is different from post-conviction DNA cases in which the evidence had not been previously subjected to DNA testing. Here, Petitioner’s DNA and the biological evidence was submitted to the F.B.I. for testing during the initial investigation, using a now-defunct method (RFLP) of DNA analysis. At that time, although the F.B.I. excluded Petitioner as the source of the biological evidence, the Bureau did not have the capacity to take that analysis further and affirmatively identify the source. CODIS was not yet operational in 1990, although surely the State would have uploaded the unknown male DNA profile into the databank if it had been. 17 Now, however, STR-DNA analysis can not only confirm that Petitioner is excluded, but potentially identify the actual source of the semen. 70. Since Petitioner’s trial, RFLP testing has been supplanted by STR-DNA testing in all state, local, and national DNA laboratories, because the latter method can obtain a result on far smaller traces of evidence, and is also (unlike RFLP testing) compatible with 17 It was not until the DNA Identification Act of 1994 (Public Law 103 322) formalized the F.B.I.’s authority to establish a national DNA index for law enforcement purposes in October 1998 that the F.B.I/’s National DNA Index System (NDIS) became operational.
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