people of thomas mcmillan, mcmillan' · homicide investigation has been secured by the...
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FELDI~IAA', JIMSSER DRAPER 6 C0,Y 1307 S. Seventh St. Posl O I k e Box 2418 Springfield, 1L 62705 2171544-3403
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT SANGAMON COUNTY, ILLINOIS
THE PEOPLE OF THE STATE O F ILLINOIS,
Plaintiff,
v. No.: 90-CF-328
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 a t 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 i n 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.
Page 1 of Z W Sangamon County No. 90 CF 328
FELDMAX, I~WSSER DRAPER & COAX 1307 S. Seventh St. Past OfficeBox 2418 Springfie14 1L 62705 2 17644-3403
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 a t 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 tha t was not scientifically available a t 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 a s he contested his guilt a t 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 (znd Dist. 2003)
?References to the common law record in the underlying case are referenced herkin as "(C.J"' References to the trial testimony i n the underlying case are referenced herein a s "([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 a s well as in a CD Rom in a n 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 a re referenced herein as "(FOIA # )".
Page 2 of &ZB Sangamon County No. 90 CF 328
FELDMAA; I I M S E R
- J DRAPER& COX 1307 S. Seventh St.
2171544-3403
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 a t
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 a t trial, denying .his guilt and putting on an alibi defense, and
challenging the veracity of the occurrence witness against him.
Page 3 of 220 Sangamon County No. 90 CF 328
I
FELDAfAN, JI2SSER DRrl PER & COX 1307 S. Seventh St. Post ORice Box 24 18 Springfield, IL 62705 2171544-3403
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 t he 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 tha t 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 tha t during his post-conviction work on the case a t
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
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 i n cases of homicide under Article 9 of the Criminal Code, the offense of
conviction in the case at bar:
Page 4 of Z m Sangamon County No. 90 CF 328
FELDMAN, IISlSSER DRAPER & COS 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2 17A44-3403
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 h a s been filed i n 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 t o 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 (4th Dist. 2003)(citing Savory).
Whether the requested DNA testing will provide materially relevant
evidence of actual innocence "requires a consideration of the evidence introduced
Page 5 of 3.20, Sangamon County.No. 90 CF 328
a t trial, as well as an assessment of the evidence defendant is seeking to test."
Id. a t 214. It does not matter that the result of the requested test will be
favorable or not. Price, 801 N.E2d a t 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
a t 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 t h e crime, would tend to 'corroborate
Defendant's alibi witnesses and would otherwise undermine the credibility of
the State's theory of the case.
P rocedura l History of the McMillen Case . .
8. On May 15, 1990, Defendant was charged by the ~ a n ~ a m o n ' c o u n t ~ Statek
1 , FELDAMA', II'ASSER -2 DRAPER & COX
1307 S. Seventh St. - .- _I 1 Post Ofiice Box 24 I8
I Springfield, IL 62705 2171544-3403
1 _ I - -
I J
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 16,1991 Tr.
Page G of &= Sangamon County No. 90 CF 328
Berlin, on a county road commonly known as the New Berlin to Waverly
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 a t about 11:50
p.m., about 1'6-17 miles west of Springfield and about 3 miles south of New
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, 1991 Tr. 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 a t 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 a t 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^)^
FLDMAA', IVASSER DMPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springfield, 1L 62705 2171544-3403
'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
I blacktop, had her car stopped and been abducted from the area all in a span of about 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.
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. J o h n ~ o n ) ~
5As indicated a t 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 t o 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
FELDMAA', II'ASSER DRAPER & C0.Y 1307 S. Seventh St. Post Office Box 24 IS Springfield, 1L 62705 2 171544-3403
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 t o a negotiated plea and on October 28, 1991, received
a 15 year 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 ~ o c k l i n ~ t b n ' s car 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 ~ e l i s s a Koontz's vehicle by waiving it down
from the roadway, stabbed her in the arm, abducted her, drove away with her
i n 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
Page 10 of 7/20 Sangamon County N o . 90 CF 328
FELDWLN, If%SSER DRAPER b COX 1307 S. Seventh St. Post OWce Box 2418 Springfield, 1L 62705 217/544-3403
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 t o 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 t he 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) a n d 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 o r 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 ~nnocence Project in vhich she indicates that the police searched her car.
Page 11 of z/W Sangamon County No. 90 CF 328
FELDMAN, II'ASSER DRAPER d COX 1307 S. Seventh SL Post Office Box 24 IS Spiigfield, IL 62705 2171544-3403
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 . .
a t 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)
Page 12 of ZW Sangamon County No. 90 CF 328,
FELDIIfAN, II'ASSER DRAPER & COX 1307 S. Seventh St Post OfFceBox2418 Springfield, IL 62705 2171544-3403
Knife Evidence: Dr. Grant Johnson, who performed the autopsy
testified that in h s opinion the stab wounds would come from a knife with a t
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, tha t 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. (=July 17,1991, 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-inch long knife that he used and then hid in his truck. (FOIA##17-18: Report )f Det. James Mitchell)
Page 13 of. *m Sangamon County No'. 90 CF 328
. .
FELDMAN, II'ASSER DRAPER & COX
Johnson admitted that he had a knife concealed in his boot on the night in
1307 S. Sevenlh St. Post Office Box 24 IS ~~rir;$field. 1L 62705 2171544-3403
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
-
0
I
I I
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 ~ u n e 25, 1989, Johnston and Danny Pocklington came
to her trailer in Carlinville; tha t they acted nervous a n d up-tight; and that on
July 4, 1989 she was a t 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 ~ h o m a s
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 ver a knife that Defendant reported Johnston gave to him. (FOIA#39: Report of Ieputy Brian Walker) ,
13Several knives were logged into evidence by the police and examined by the SP Forensics Laboratory, including two butcher knifes (FOIA#1140J 1523: Reports of qorensic Scientist William E. Frank),however, the ISP Forensics Laboratory reports
Page 14 of Z/m Sangamon County No. 90 CF 328
FELDMAA', II%SSER DRAPER & COX 1307 S. Seventh St. Post Ofice Box 24 IS Springfield, IL 62705 21 71544-3403
Fingerprints: Crime Scene Technician Schuh testified a t trial that
there were latent prints found a t 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 a t trial seeking to explain why
fingerprints of Defendant were not found i n 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 a n inexpensive
24-inch silver chain for her daughter; tha t the chain hung over the car's rear
view mirror; that she had seen the necklace hanging there a few days before;
and t ha t 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.
Page 15 of .2/m Sangamon County No. 90 CF 328
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I - 1 FELDAMA', II'ASSER DRAPER & CO,Y 1307 S. Seventh St.
-I Port OfficeBox241S
- - Sp~ingfield, IL 62705
I 2171544-3403 -.J
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necklace was missing. (July 16,1991 Tr. 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 tha t (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 a t tha t same time; (iii) t ha t Danny Pocklington
lost the necklace later that morning i n 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; Ju ly 17, 1991 Tr. p. 168-69; Testimony of Simmi Pocklington)l4
Johnston also testified that on Ju ly 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
14As noted infra, Simmi Pocklington told the police that he was not at his house on tha t date, although he testified at trial that he was.
Page 16 of Sangamon County No. 90 CF 328
FELDMAA', II'ASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2 171544-3403
was shown People's exhibit 9, a necklace, and he identified the necklace as
being the one tha t Danny had over Simmi's house and tha t Danny had on July
4,. 1989. (July 17, 1991 Tr. pp. ,8243)
Contradicting any implication that Defe,ndant h a d given Danny
Pocklington the necklace was the testimony of Simmi Pocklington, who asked
specifically if any of the people a t his house tha t 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 18,1991 Tr. 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)
16Detective Pinneo testified at trial that he met M a r y Pocklington on July 14, 1989, when he walked i n 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.
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Facts about the necklace contained in case investigation reports shed
serious doubt on any circumstantial connection of the necklace to ~ e f e n d a n t and
thus; by implication, Defendant's connection to the crime (emphasis supplied):
(a) O n 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~nted that Goosegot the necklace ')%om the girl, Goose took it of f of 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 , D a n n y 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 tha t 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 a n d 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 tha t "it came from the Koontz girl" and that he then showed the
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FELDMAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post Ofice Box 24 18 Spring field. IL 62705 2 171544-3403
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 a t pp. 17-18 ). N o 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, 1991 Tr. 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 i n 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 i n the morning
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FELDBIAN, II'ASSER DRAPER & C0.X 1307 S. Seventh St. Post Ofice Box 24 18 Springfield, IL 62705 2171544-3403
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 a t 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 i n time, Defendant told Johnston tha t 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,
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FELDA?AAr, II'ASSER DRAPER & COX 1307 S. Seventh St. Posl Ofice Box 24 18 Springfield, IL 62705 2 171544-3403
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 a t Mary's house on June 24,1989, he never saw Defendant's parents
come to the house and Defendant was a t 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:
(a) Although Johnston's testimony was t h a t 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 tha t he killed Melissa Koontz, never mentioning that Defendant was involved i n 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 tha t he, Mary, Defendant, Jeff Pocklington and Tina Johnston, who had all been
16See Johnston's statement to .the police indicating t h a t he first said Madison beet and then said Jefferson Street. (FOIA#5: Report of Det. ~ a m e s ' ~ i t c h e l 1 ) No lvidence was presented that either location was anywhere near the location where i the r Melissa Koontz's body or vehicle were found and no evidence was presented of i crime scene a t either location related to Melissa Koontz.
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i n 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's testimony stated tha t the motive for stopping Melissa Koontz's car was to rob her of money for beer, a s 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 i n 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 tha t a n 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 tha t 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 17,1991 Tr. 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 tha t the State was going to seek the death penalty
against him if he was convicted. Although Johnston testified that the State had
17Danliy Pocklington 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)
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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 tr ial 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, a t 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 tha t a t 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
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FELDMAA: II'ASSER DRAPERS COX 1307 S. Seventh St. Post OmceBox 2418 Springfield. IL 62705 2 171544-3403
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 14-2 1: 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)
@ ) A t that point thepolice report stated: 'Xfter talking to Don Johnston his story changes once again.'' (FOIA#00017) The police report continues that Johnston t k en gave a version of events, in some detail, which had a n unnamed '%id"in a red and white pick-up truck, picking h i m up and then stopping Melissa Koontz's car and abducting her, taking things from h e r 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 i n New Berlin, the truck headed east to Springfield. Johnston then stated tha t after he left t h e 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 h e 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; a n d 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 i n the chest upon lzer left breastJJ and that the girl put her hand u p 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 tha t 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) T h e detective tken asked Johnston '?f he was sure that this was the
Page 24 of 2;w Sangamon County No. 90 CF 328
FELDI~~AN, IVASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2171544-3403
way the car was stopped" and Johnston '5ooked at [the detective] and stated yes, he was positive t ha t this was the way t h a t 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 p u t the knife in his truck. (Id.) The detective asked Johnston if there ' b a s anyone else there with h im 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 I n the interview Johnston stated (a)
I t ha t his testimony t h a t 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.
191n view 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 t h e 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.
Page 25 of Z/v Sangamon County No. 90 CF 328
FELDMAN, II%SSER DRAPER & C0.Y 1307 S. Seventh St. Post Ofice Box 24 1 S Springfield, IL 62705 2171544-3403
testimony about the necklace, discussed supra a t page 16, his testimony placed
Defendant and Johnston a t his house in Carlinville i n 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)
tha t 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;20 and 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 ~ u n e 25, 1989. (July 17, 1991 Tr. pp. 163-178)
E . Defendant's Alibi ~ e f e n s e : 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
20The police interview of Jane Carrington corroborated this statement of Simmi 'ocklington. (FOIA#68: Report of Det. John Pinneo)
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FELDAfAAr, IWSSER DRAPER & C0.Y 1307 S. Sevcnlh SL Post Ofiice Box 2418 Springfield, 1L 62705 2171544-3403
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; tha t 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" a t 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 15 minutes
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)
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FELDMAA', II'ASSER DRAPER & cox 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2171544-3403
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 a t the Pocklington h?use.on June 24,
1989 when he, Billy, went to bed; that Donald Johnston, Gary Edgington and ..
. .
Defendant were a t 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)
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FELDMAN, JI'ASSER DRAPER & COX 1307 S. Sevallh St. Post Office Box 24 18 Springfield, IL 62705 2171544-3403
F. Defendant's Trial Testimony Denying His Guilt: Taking the
stand a t 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; tha t Mary told
Defendant she was going to be with Gary Edgington tha t 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 a t about 9:30 p.m.; that when he arrived, Donald Johnston and
Mary's two sons, Danny and Billy, were a t 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 a t 1:00 a.m.;
that he saw Billy curled up on the love seat; that he saw Donald ~ohns ton and
Danny under a tree outside talking loudly; tha t he never told Det. Kevin
Harney tha t 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
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FELDMAA; II'ASSER -, DRAPER & COX
1307 S Seventh St -- -- I post office BOX 141s
' Spnngfield. 1L 62705 2 171544-3403
Koontz; denied going to a cornfield and stabbing Melissa Koontz; denied ever
being in a car with Johnston and Edgington a t 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 a n d David Leonard each testified that they .
interviewed the Defendant on July 14,1989 and 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 a t
trial and that of his alibi witnesses. (Id.) Detective Leonard further testified
that on May 14,1990, he again spoke with Defendant who a t that t h e told 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; tha t Defendant was not
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a t 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 a t 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 tha t in mid-April 1990 when she was a t 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, 1991 Tr. 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. I t
should be noted tha t 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
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 Car l 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 tha t Defendant told him tha t 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
I ' 1307 S. Seventh St.
Post Ollicc Box 24 18 - 4 Springficld,IL62705 4 - 2171544-3403
I I
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- - Springfield, 1L 62705 , I 2171544-3403
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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 17,1991 Tr.
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. a t 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 tha t they ran out of beer
money and were going to Springfield "to get some money one way or another";
tha t they pulled over a girl that Defendant recognized; that Defendant stabbed
22 The autopsy report indicated that t h e ~ e was no breast tissue to examine.
Page 33 of 320 Sangamon County No. 90 CF 328
FELDMAA', If'ASSER DRAPER & CO,Y 1307 S. Seventh St. Post Office Box 2419 Springfield, IL 62705 2 171544-3403
the girl; and tha t Defendant's girlfriend found a gold necklace i n the back seat
of the car and turned it i n to police. Bottoms also testified tha t 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 a t the crime scene and other evidence
presented by the State was tha t Mary Pocklington tu rned 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. I n 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 h a d two pending driving on revoked license charges pending
against him, b u t no promises were made to him. (Id. at pp. 136, 140, 144-45)
C. Informant Dexte r Huddleston: Huddleston testified that a t the
time of trial h e h a d two prior felony drug possession convictions and a felony
theft conviction and was in jail for felony home invasion and for unlawful use
Page 340f Tm Sangamon County No. 90 CF 328
FELDAlAA', II'ASSER DRAPER & C0.Y 1307 S. Seventh St. Post Office Box 24 18 Springfield, 1L 62705 217A44-3403
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 a t about 2:30 p.m.
o n 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
Page 35 of 2,m Sangamon County No. 90 CP 328
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1307 S. Seventh St. : Post Office Box 2418
--I -,, I Springfield, IL 62705
2 171544-3403
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:OO p.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 a t first and t h e n numerous times after
that; that they left the girl's nude body i n the cornfield; that they took a
necklace from the girl which necklace was later found by a young girl i n the . .
backseat of the Chevy i n 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 tha t without the weapon they
co.uld not find him guilty; and tha t he said that this w a s one year since the girl
was killed and Defendant was upset that everyone w a s 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 18,1991 Tr. 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 a t the time of the . .
crime according to the State's key witness Johnston. Contrary to Reed's
testimony, Johnston never testified nor told police t h a t he had anything to do
Page 36 of Z/W Sangamon County No:90 CF 328
FELDIIAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post Ofice Bar 2418 Springfield, ILG2705 2 171544-3403
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 a t
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)] I n 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
Page 37 of sw Sangamon County N o . 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, a t least i n par t , testimony from
a n in-custody i n f ~ r m a n t . " ~ ~ 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 i n Defendant's case.
B. According to a 1999 Chicago Tribune investigative report on the use
FELDALIIY, IVASSER DRAPER & COY 1307 S. Seventh St. Pbst Office Box 2419 Springfield, IL 62705 2171544-3403
of jailhouse informants, prosecutors in Illinois who were interviewed
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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
2 3 T h e C o m m i s s i o n ' s r e p o r t i s a v a i l a b l e a t : ttp:Ilwww.idoc.state.il.uslccp/ccplreports/index.html
24See the November 16, 1999 Chicago Tribune article The Failure of the Death 'enaltv In Illinois: Part 3 The iailhouse informant, which is set forth at: ~ttp:llwww.cl~icagotribune.comlnewslwatchdoglchi-991116deathillinois3,O,6O99699. tory?p age=l
25 See the ARA website setting forth the article Jailhouse Informants, by Robert 3loom from Criminal Justice Magazine, Vol. 18, No. 1, Spring 2003 set forth at: lttp:Ilwww. abanet.org/crimjustIspring20031j ailhouse .html
Page 38 of %w Sangamon County No. 90 CF 328
FELDMAN, II'ASSER DRAPER & COX 1307 S. Se\*cnth St. Post Office Box 24 18 Springfield. IL 62705 2171544-3403
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 a t trial
and i n allowing the requested testing to occur. C.f. In re Michael, 326 U.S. 224,
227 (1945)("[a]llperjured relevant testimony is a t war with justice, since it may
produce a judgment not resting on truth." )
Defendant Had Pers is ted In His Innocence Before His Arres t Even In T h e Face of a Concen t ra t ed S t a t e Effort Pushing H i m 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 17,1991 Tr. 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 tha t part of thereport of the Commission of Inquiry pursuant to the Manitoba Evidence Act following t h e 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
Page 39 of s7,Q Sangamon County No. 90 CF 328
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FELDMAA', II'ASSER DRAPER & COX 1307 S. Scvmlh St. Post Office Box 24 I8 Springfield, LL 62705 21715444403
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 a t that time agreed
to cooperate, also entered the room in an attempt to ge t Defendant to admit his
involvement in the crime, however Defendant denied his involvement. (july 17,
1991 Tr. 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 16,1991 Tr. pp. 107-08) The D M of the May 15,1990 video of Johnston
and McMillen is attached hereto as Attachment D (the actual.DVD is retained
by Defendant's counsel andwil l 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 t o have someone go to Cub Foods and just see if anything out
of the ordinary happened." (FOIA#315: Dep. A1 Sample & Dispatcher Radio
Page 40 of %m Sangamon County No. 90 CF 328
FELDMAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 2418 Springfield, lL 62705 2171544-3403 .
Transcript) As indicated by the Affidavit of William R. Clutter, a t 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 a t or about t h e 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 i n a small red
pick-up truck. (FOIA#1396: Report of ~ o r ~ a n .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 tha t 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)
Page 41 of %w Sangamon County No. 90 CF 328
FELDAfAA', IKASSER DRAPER & COX 1307 S. Seventh S t Post Office Box 24 18 Springfield, IL 62705 217A44-3403
T h e Untested Physical Evidence Secured In Rela t ion To The Trial
Several pieces of physical evidence were secured in relation to the trial of
Defendant, however none of tha t evidence has been subjected to DNA testing:
A. Hair a n d 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 ki t 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 t ha t blood was indicated
and/or identified from the nail scrapings, but no further analysis of this
evidence was made by anyone. (FOIA # 1138)
I n 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)
Page 42 of 2w Sangamon County No. 90 CF 328
, I FELDMAN, II'ASSER DRAPER S COX 1307 S. Seventh St. L,' Port Oflice Box 24 18
7 Springfield, lL 62705
\-2 2171544-3403
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 tha t 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. F ingerpr in ts : 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
Page 43 of Sangainon County No. 90 CF 328
FEI.DMAAr, IVASSER DRAPER & COX 1307 S. SeventhSt.
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
Post Ofice Box 24 18 Springfield, IL 62705 2171544.3403
submitting them for identification into the FBI's Integrated Automated
Fingerprint Identification System ("IAFIS").28 These fingerprints have been
1
matched to a person other than Defendant or any other person implicated in the
crime. See Affidavit of William R. Clutter, pars. 24-26.
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.
Page 44 of Z/m Sangamon County No. 90 CF 328
FELDMAA', lflASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springfield. IL 62705 2171544-3403
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 I l l i n ~ i s . ~ ~
Illinois courts have ruled that DNA identification procedures and the
FBI's method of calculating statistical probability of random match are
generally accepted in the 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 (lst Dist.
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/
Page 45 of 2.m Sangamon County No. 90 CF 328
FELDllIAA; 1154SSER D U P E R & COZY 1307 S. Seventh St. Post Office Box 24 IS Springfield, 1L 62705 2171544-3403
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
~nves t i~a t ion .~ ' See the Affidavit of Dr. Terry Melton appended hereto as
Attachment E.
Mitochondrial DNA ('mtDNA") testing3' was introduced i n 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 a n mtDNA type where only
a limited biological sample can be obtained for'testing due to sample quantity,
30 These standards 'can be found on t h e 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 a t 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 a t 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=JrClStTD JMHjnAfk Ny7BQ&sa=X&oi=book~result&ct=result&resnum=9#v=onepage&q=&f=false~, and d) Mitochondrial D N A 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 a t http:llwww.mitotyping.com/5985929281158l/lib/598592928ll58ll lollandParsons1999.pdf.
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FELDMAAnn II'ASSER DR.4 PER & COZY 1307 S. Seventh St. Post Office Box 2418 Springfield, IL 62705 2171544-3403
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,32 Mitochondria1 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 a t 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).
I n Illinois, mitochondria1 DNA evidence was admitted a t 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.
3 2 h t t p : / / ~ ~ ~ .fbi. gov/hq/lab/fsc/backissu/july1999/dnatext.htm#Introduction
Page 47 of zm Sangamon County No. 90 CF 328
FELDMAN, IIXSSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Springficld. IL 62705 2 171544-3403
See also People v. Gonzalez, 379 Ill. App. 3d 941, 884 N.E.2d 228 (lBt Dist.
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, ~ ~ D N A typing 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 1702533 and uses the same equipment as that used in the
331nformat ion a b o u t this s t a n d a r d c a n be found a t : h t t p ://www.iso.org~liso/catalogue~detail'.htm?csnumber=39883; http://www .isoiec17025.com/; and at http://www .quality.co.uk/custpage.htm.
Page 48 of 2/m . Sangamon County No. 90 CF 328
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United States. See Affidavit of Richard Eikelenboom, par. 1, appended hereto
as At t achment 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 i n 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 a t bar and believes tha t the laboratory may be
able to identify points of contact between the perpetrator and Melissa Koontz
34See Affidavit of Richard Eikelenboom a t 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.
Page 49 of 27J0 Sangamon County No. 90 CF 328
FELDI~~AX, IlVSSER DRAPER & COX 1307 S. Seventh St. Past Office Box 24 18 Springfield. IL 62705 2 171544-3403
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. I n the
Masters case, Richard Eikelenboom was accepted by the court as a n 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 a t par. 4.36
C. Othe r PCR-STR DNA Tes t ing Genera l ly Accepted in t h e
Scient i f ic 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 t h e 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.
Page 50 of %m Sangamon County No. 90 CF 328
TELDIMAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post ORicc Box 24 18 Springfield, IL62705 2 171544-3403
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 a s 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 (lBt Dist.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.
I n 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,
3GSee the Genetic Technologies website at: http:llwww.genetictechnologies.com/ See also the ASCLAD website at: http://www.ascld.org/.
37For a basic overview of DNA testing, see Chapter 2 and Appendices 1-3 of the U.S. Department of Justice Office of Inspector General May 2004 report en t i t1ed :m FBI DNA Laboratory: A Review of Protocol and Practice Vulnerabilities set forth at: http:Ilwww .justice. govloiglspeciallO405lfinal.p df.
Page 51 of ZW Sangamon County No. 90 CF 328
FELDMAN, II'ASSER DRAPER & COX 1307 S. Seventh St. Post Office Box 24 18 Sp~gf idd , IL 62705 21715444403
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 test ing is simply standard
STR-PRC testing that focuses on the DNA from cell mater ial 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 i n 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 i n 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.
39See the FBI standards and guidelines set forth at: http://www.fbi.gov/hq/ .ablfsclbackissu/jan2009/standards/2009~0 1-standardsol. htm.
Page 52 of 2m Sangamon County No. 90 CF 328
FELDMAN, II'ASSER DRAPER & COS 1307 S. Seventh St. Post Office Box 24 18 Springfield, IL 62705 2171544-3403
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 t h e 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 tha t 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 a t 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 a t any re-trial as to Defendant's
Page 53 of 2m Sangamon County No. 90 CF 328
FELDAMN. II'ASSER DRAPER & COX 1307 S. Seventh St. Post Ofice Box 2418 Springfield, IL 62705 2 171544-3403
involvement with. the, abduction and murder a t 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 tha t 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
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 t hey 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 a t trial.
22. Lastly, the Court should note the First District's observations i n People u.
Henderson, 343 Ill. App. 3d 1109,799 N.iE.2d 682,692 (lSt Dist. 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:
I n deciding whether to order DNA testing in cases involving multiple offenders and accountability, trial courts should keep in mind tha t 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 a n 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 tha t trial courts often rely on i n 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 ) (prays tha t 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
I FELDBIAN, IIMSSER - DRAPER & C0.Y
1307 S Seventh St. - -& post Office BOX 24 I 8
4 - Springfield, IL 62705 1 217644-3403
the hair and nail scrapings therein, and the hair evidence collected fkom tapings a t the
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.
Page 56 of z/W . , Sangamon County N o . 90 CF 328
1 FELDMAIY. JI%SSER -, DRAPER & COX
1307 S Sevcntll St - -4 Post Office BOA 24 I8
A - Springfield, IL 62705 2 171544-3403
i - -
1 .-:
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 b r th by enclosing the same in a n 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 . r w ,2009:
John Schmidt Sangamon County State's Attorney Sangamon County Complex 200 S.. gth Street, Rm 402 Springfield, IL 62701
ind t h a t the original was filed with the Clerk' of the Court in which said cause .is lending.
Page 57 of &w Sangamon County No. 90 CF 328