In the trial of Darlie Routier, the prosecution sought to convict a person who steadfastly maintained her innocence. The prosecution had no eye witnesses - the only potential eyewitness, five-year-old Damon Routier, died shortly after the paramedics arrived on the scene - and no confession. The evidence presented by the prosecution included Ms. Routier's statements and conduct in the hours and days after the crime, forensic evidence from the crime scene, and testimony from investigators who believed that the crime scene had been staged, despite Ms. Routier's telling them that an intruder had attacked her and her sons and left the house through the garage. The prosecution also offered evidence purporting to show that Ms. Routier was a materialistic, self-centered woman, whose life was unraveling in the wake of the birth of her third son and supposed financial difficulties that were facing the family.

Throughout the trial, the prosecution offered evidence attempting to support its theory of a staged crime scene. There was no blood in the garage through which Ms. Routier told the police the intruder fled. In addition, dust on the window ledge where Ms. Routier believed the intruder left the garage, and the mulch just outside that same window, were undisturbed. A knife in the Routier kitchen contained fibers that were microscopically consistent with material in the screen in a garage window that had been cut, allegedly to stage entry by an intruder. In addition, investigators testified that certain items in the Routier house, including a broken wine glass and a turned-over vacuum cleaner, had been staged to suggest a struggle. A prosecution expert testified that the blood on the back of Ms. Routier's shirt was consistent with what would be expected if she had stabbed Devon.

The Need for the Defense to Have Access to Previously Unexamined Evidence

The case against Darlie Routier turned on circumstantial evidence and the testimony of numerous prosecution experts. Since the trial, evidence has surfaced that suggests that the prosecution's case was wrong in focusing on Ms. Routier. Unidentified, bloody fingerprints not belonging to Ms. Routier have been found. These fingerprints contradict the prosecution's central theory that Ms. Routier "staged" the crime scene. Significant items of evidence remain untested for DNA, including hairs found on a bloody tube sock and at least one pubic hair found in the room where the murders and the assault on Ms. Routier occurred. Ms. Routier's trial counsel - who should not have represented Ms. Routier because of a conflict of interest that arose from his agreement not to pursue any defense that would implicate Darin Routier (Darlie's husband) - stopped key defense experts from completing their forensic examination. Because the evidence against Ms. Routier is so flawed, the court should have ordered the prosecutor to cooperate with defense investigators and to allow access to new and untested crime scene evidence.

The key questions that need to be addressed are:

Who left the bloody fingerprint on the living room table?

Who left two fingerprints - including a bloody print - on the door to the garage?

Whose blood is on the blue jeans of Darlie Routier's husband?

Who left limb hairs on a bloody tube sock found outside the Routiers’ home?

Who left a pubic hair in the Routiers' living room?

Whose blood was on Darlie Routier’s night shirt, and how did it get there?

Did the debris on the kitchen knife-which, according to the prosecution's own expert, can be subjected to more refined testing-come from a screen door or police investigation?

These questions were never investigated or addressed by the prosecution or by Ms. Routier's conflicted trial counsel. The questions cannot be investigated any further by her present counsel because of the prosecution's refusal to provide access to evidence in their custody. Justice requires that the investigation into these crimes be completed now. The trial court should have ordered the prosecution, long before now, to provide defense investigators and experts access to crime scene evidence and should have ordered DNA testing of biological evidence.

The History of Ms. Routier's Efforts to Gain Access to the Physical Evidence

Until August 4, 2004, Ms. Routier had a habeas corpus petition pending before the trial court attacking the fairness of her trial and arguing again that she is innocent and has been wrongfully convicted. Under the Texas habeas corpus statute, Ms. Routier is entitled to fully develop the factual claims that support her petition for habeas corpus, including her claim of innocence. Under a related statute, Ms. Routier is entitled to DNA testing of biological evidence that is likely to prove her innocence. In a separate motion, she asked for DNA testing.

During the pendency of her state habeas corpus proceeding, Ms. Routier repeatedly asked Judge Robert Francis of the Criminal District Court for the right to access and test the evidence she believes will prove her innocence. Ms. Routier also repeatedly asked for an evidentiary hearing in order to air the disputed issues of fact that surround her conviction. In addition to her Petition for Habeas Corpus, Ms. Routier filed the following motions before Judge Francis seeking access to the crime scene evidence:

1. Expedited Motion for Access to State’s Physical Evidence: Filed May 29, 2002.

2. Renewed Request for Access to State’s Evidence: Filed July 2, 2002.

3. Post-Application Motion for Access to State’s Evidence: Filed July 17, 2002.

4. Second Renewed Request for Access to State’s Evidence: Filed July 29, 2003.

5. Motion for Forensic DNA Testing: Filed November 4, 2003.

6. Applicant Darlie Lynn Routier’s Motion For Reconsideration: Filed November 3, 2003.

7. Renewed Motion for Testing of Physical and Biological Evidence and Request for an Evidentiary Hearing: Filed January 23, 2004.

In response to Ms. Routier's original motion, Judge Francis allowed Ms. Routier only to view the evidence already in the court's possession; he did not order the State to turn over any additional evidence, nor did he allow the evidence to be tested. Judge Francis did not deny Ms. Routier's requests for access to other evidence; he simply ignored them.

On August 4, 2004, Judge Francis issued a 193-page ruling denying Ms. Routier's habeas corpus petition and finding she received a fair trial. This ruling included findings on numerous outstanding and sharply disputed factual issues. The court's judgment on these issues – for example, that Ms. Routier failed to prove that the bloody fingerprints in the living room belonged to an intruder - were made without a single evidentiary hearing, without giving Ms. Routier access to the critical items of evidence in her case, and without DNA testing of outstanding biological evidence, as is Ms. Routier’s right under Texas law.

Until such access and hearing are granted, Ms. Routier will be unable to develop the evidence necessary to prove she is innocent of this crime.

Access to Various Items of Evidence Is Necessary to Prevent the Execution of an Innocent Person

Judge Francis' ruling tries, unsatisfactorily, to explain why no further testing of some of the evidence is necessary. His ruling ignores other items of evidence altogether. Judge Francis is wrong in denying testing. He turns a blind eye to the search for the truth in a death penalty case where serious questions about a wrongful conviction have been raised. His ruling in no way answers these questions.

The following evidence still needs further scientific and forensic analysis or a fair court hearing, or both:

An unidentified bloody fingerprint taken from a table in the room where the murders and assault occurred.

• A prosecution expert filed a report in the habeas proceeding ruling out every known adult as leaving this fingerprint except for Ms. Routier. There was some question whether the print could have been left by one of the children.
• In a written reply to this report, Ms. Routier filed the report of an independent expert excluding Ms. Routier as the source of the fingerprint.
• Judge Francis made no mention of this independent expert's report in ruling that the fingerprint was left by Ms. Routier or one of her children. Judge Francis had no basis for resolving this issue as he did in light of the conflicting expert opinions.
• A factual dispute remains as to whether this unidentified bloody fingerprint belonged to one of the Routier children or to the assailant, and if to the assailant, whether it was Ms. Routier. Without permitting additional analysis as requested by Ms. Routier, and without hearing from all experts through testimony in court, Judge Francis could not fairly decide that this fingerprint belonged to Ms. Routier or one of her children.

A bloody fingerprint taken from the utility room door heading from the kitchen toward the garage.

• This fingerprint appears to have been left by the assailant as he fled the house through the garage.
• Ms. Routier's expert filed a report in the habeas corpus proceeding determining that this fingerprint had insufficient detail to identify the person who left it but sufficient detail to exclude various people as its source.
• This expert excluded Ms. Routier as the source of this fingerprint.
• At trial, the prosecution took the position that the crime scene was carefully preserved and that no law enforcement or medical emergency personnel left any bloody fingerprints.
• Without acknowledging the prosecution's position at trial that this bloody print could not have been left by any personnel attending to the crime scene, Judge Francis faulted Ms. Routier in his habeas corpus decision for not having ruled out law enforcement personnel as the source of the fingerprint - and mistakenly assumed that one of them was the source.
• In these circumstances, Judge Francis could not fairly determine that this fingerprint had no relevance to proving Ms. Routier innocent. Ms. Routier was ruled out as the source. No one who came to the crime scene after the crime occurred - according to the prosecution - could have left the print. It was very likely left by the assailant.

A latent fingerprint taken from the utility room door heading from the kitchen toward the garage.

• This fingerprint may also have been left by the assailant as he fled the house through the garage.
• An independent expert concluded that this print was suitable for comparison. This expert also matched the print to Darin Routier's second finger joint on the middle finger of his left hand.
• Ms. Routier's expert also concluded that this print was suitable for comparison. Ms. Routier's expert, however, excluded both Ms. Routier and her husband Darin as the source of this print.
• Ms. Routier submitted the report of both experts to Judge Francis. Thereafter, the independent expert revised his analysis, and agreed that Darin Routier could be excluded as the source of this print.
• Without allowing further testing of the fingerprint, Judge Francis determined that the fingerprint might not be connected to the crime. Judge Francis found that, because the print was not bloody, it may have been deposited by an individual known to be in the Routiers’ house prior to the crime.
• A factual dispute remains as to whether this print belongs to an unknown third party. Without further analysis of this print, Judge Francis cannot fairly have decided that the print had no connection to the crime.

The blood on the blue jeans of Darin Routier.

• Darin Routier told the police that he got his son Devon's blood on his jeans when he attempted to resuscitate Devon.
• In her habeas corpus petition, Ms. Routier set out a variety of facts suggesting that Darin Routier was responsible for the murders and the assault, by acting alone or by hiring another person to commit the crime.
• Ms. Routier asked that the blood on Mr. Routier's jeans be tested to determine whether the blood was solely from Devon or also from her other son, Damon, or from her. Judge Francis ignored this request.
• Without acknowledging that Ms. Routier had asked for access to the jeans, Judge Francis' habeas corpus ruling faulted Ms. Routier for failing to show that the blood on Mr. Routier's jeans came from a source in addition to or other than Devon.
• In these circumstances, Judge Francis could not fairly determine that the blood on Darin Routier's jeans had no relevance to proving Ms. Routier's innocence.

Pubic hairs in the living room and limb hairs on a bloody tube sock.

• At least one pubic hair was recovered from or near the couch where Ms. Routier slept the night of the murders and assault. Before trial, a prosecution expert conducted DNA testing of this hair but could not determine the DNA makeup of the hair.
• A bloody tube sock was found in the alley behind the Routiers' home. The prosecution conducted no DNA analysis of a human limb hair found on the sock.
• In connection with the pending habeas corpus proceeding, Ms. Routier asked for access to these hairs to conduct DNA analysis. Ms. Routier's expert explained that the evolution of DNA testing since the time of trial could well allow the DNA to be identified from the pubic hair, as well as from the limb hair.
• If these hairs are analyzed and the DNA does not match anyone in the Routier household, this would provide substantial evidence that an intruder committed the crime and confirm what until now has been an uncorroborated suspicion by Ms. Routier that this person tried to assault her sexually before he stabbed her.
• Judge Francis ignored Ms. Routier's request for DNA testing and said nothing about this evidence in the ruling on Ms. Routier’s habeas corpus petition.

The blood on Ms. Routier's night shirt.

• The prosecution's expert testified at trial that several of the stains on Ms. Routier's night shirt contained both her blood and the blood of Damon or Devon.
• Judge Francis found in the habeas corpus ruling, on the basis of this expert's trial testimony, that Damon's and Devon's blood was "cast off" from the knife as Ms. Routier stabbed her children, and that her own blood came from what Judge Francis found was her self-inflicted wounds.
• Ms. Routier earlier filed a report in the habeas corpus proceeding from defense experts challenging the very assumptions that Judge Francis later relied on. These experts concluded that the critical areas of blood "spatter" (that is, blood that spews out from a directly inflicted wound or drops from a bloody weapon) on the night shirt had never been tested to determine whose blood this was and thus, could have been confused as blood "cast off" from a knife when in fact it was Ms. Routier's own blood. The defense experts also disputed whether there was "cast off" blood in the part of the night shirt that it would have been on had Ms. Routier stabbed her children. Ms. Routier asked for access to the night shirt to conduct additional testing, but Judge Francis ignored her request.
• Judge Francis had no basis for resolving this factual dispute as he did without further testing and without hearing testimony from the prosecution and defense experts.

Fibers on the kitchen knife.

• At trial, a prosecution expert testified that microscopic debris found on a knife in the Routiers' kitchen was consistent with the screening material in a garage window. The prosecutor used this evidence to argue that Ms. Routier cut the screen to make it appear that an intruder had entered through that window.
• In her habeas corpus petition, Ms. Routier alleged that prior to the prosecution expert’s testing of the debris on the kitchen knife, that knife had been dusted for fingerprints. She then presented the opinion of an expert that fingerprint powder residue may have been mistaken for the residue of screening material. Ms. Routier asked that she be given access to the knife debris to conduct further testing to determine if the debris on the knife was in fact the residue of fingerprint powder.
• Along with her habeas corpus petition, Ms. Routier filed an affidavit from the prosecution's own forensic scientist, Charlie Linch, in which Linch confirmed that the debris from the knife could be subjected to more refined testing than the microscopic analysis performed prior to Ms. Routier’s trial. Ms. Routier has asked to conduct such testing.
• Judge Francis ignored Ms. Routier's request for access to the knife debris.
• Ruling against Ms. Routier, Judge Francis found that this evidence would not have been helpful to Ms. Routier because the fibers in the fingerprint brush were larger in diameter than the fibers used in the screen. Judge Francis did not mention at all the possibility that the debris on the knife was fingerprint powder.
• Judge Francis also found that the knife was not even dusted for fingerprints. He made this finding even though Ms. Routier's allegation that the kitchen knife was dusted for fingerprints was supported by a police officer's testimony at trial that he had thoroughly dusted for fingerprints in the Routiers’ kitchen.
• Judge Francis could not have come to either conclusion fairly. There was a dispute as to whether the police dusted the knife for fingerprints, and that dispute could not have been resolved without the questioning of crime scene investigators in a hearing. Judge Francis did not even consider whether the debris on the knife could have come from fingerprint powder (as distinct from the fingerprint brush), nor did he permit the defense expert access to the knife to test whether the debris was from fingerprint powder.

Ms. Routier Will Continue Her Quest to Show that She Is Innocent

Judge Francis' ruling denying Ms. Routier’s habeas corpus proceeding will be forwarded to the Texas Court of Criminal Appeals for review. Ms. Routier's counsel will file objections to Judge Francis' findings with the Court of Criminal Appeals and will ask that her case be sent back to Judge Francis for a fair review, including access to the evidence, testing of new evidence, additional testing of evidence already tested at trial, and a hearing on all the evidence.

In November, 2003, Ms. Routier filed a motion asking for DNA testing of numerous items of evidence. Judge Francis has ignored this motion altogether, not even requiring the prosecution to account for the evidence that she seeks to test, as Texas law requires Judge Francis to do when such a motion is filed. Today, Ms. Routier has filed a mandamus petition with the Texas Court of Criminal Appeals asking that it require Judge Francis to comply with his obligations under the DNA testing statute.

Ms. Routier has consistently maintained that she is innocent from the moment she was accused of killing her children. She continues to maintain her innocence. Because she is innocent, she is confident that, when she is provided a fair opportunity to test the evidence and present the evidence of her innocence to a fair and impartial judge, she will be found to have been wrongfully convicted.