Christian v. Bissen, et al

1 Respondent Iwalani D. White, Interim Director, has
replaced Respondent Richard Bissen, Acting Director, pursuant to
Fed. R. Civ. P. 25(a)(1).
2 Petitioner did not file his proposed Stipulated Initial
Discovery Order. 	Respondents, however, submitted it as Appendix
A to their Proposed Order Regarding Discovery.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
TARYN CHRISTIAN,
Plaintiff,
vs.
RICHARD BISSEN, ET AL.,
Defendants.
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CIVIL NO. 04-00743 DAE-LEK
INITIAL DISCOVERY ORDER
This Court, having reviewed the Proposed Order
Regarding Discovery, filed by Respondents Iwalani D. White,
Interim Director, 1 and the State of Hawai`i Department of Public
Safety (collectively “Respondents”) on February 7, 2007, and
Petitioner Taryn Christian’s (“Petitioner”) proposed Stipulated
Initial Discovery Order, 2 hereby enters the following discovery
order:
I. 	DNA Testing
A. 	Procedure
1. 	All items of physical evidence which are in the
possession of the State court clerk shall be
immediately sent to the Maui Police Department’s
(“MPD”) evidence custodian.
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2. 	Following the transfer of all items to the MPD’s
evidence custodian, items to be submitted for DNA
testing shall be sent to the Serological Research
Institute in Richmond, California (“SRI”).
3. 	Each submission to SRI shall be accompanied by a
cover letter listing the items being sent and, if
available, any identifying exhibit numbers,
laboratory numbers, or other titles or numbers.
4. 	Brian Wraxall at SRI shall document the chain of
custody of all of the items, from the time SRI
obtains custody until the time it releases
custody, and shall document the steps taken in
examining and analyzing the items.
5. 	Items shall be sent by overnight mail. 	The
mailing shall be timed so that the items are not
in transit during a weekend.
6. 	After examining the evidence to determine the
suitability and feasibility of various items for
testing, SRI shall conduct nuclear DNA testing,
using PCR procedures, on some or all of the items
submitted.
7. 	At a minimum, nuclear DNA testing shall be
conducted on the swabs from the sidewalk.
8. 	If initial analysis indicates there is biological
material suitable for testing on the handles of
either the knife or the screwdriver, those handles
also shall be subjected to nuclear DNA testing.
9. 	The likelihood of obtaining meaningful results
from the other items shall be determined after
those items are examined at the laboratory.
10. 	No reference samples - that is, no known samples
of Vilmar Cabaccang, James Burkhart, Serena
Seidel, Petitioner, or any other person - shall be
sent at the same time as the items from the crime
scene. 	This is to assure that there is no
possibility that any reference sample shall
contaminate a crime scene sample either during
transit or during examination at the laboratory.
11. 	DNA profiles shall be obtained from reference
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samples, to the extent necessary, at a separate
time from the time of testing of the crime scene
evidence.
12. 	Prior to the transfer of any evidence to any
laboratory other than SRI, Petitioner shall
provide the Court and Respondents with the name,
address, phone number, and any relevant
credentials of the laboratory.
B. Items To Be Sent For Testing
1. 	Swabs from the sidewalk (items 12, l2A, and 12B).
2. 	The knife (item 1).
3. 	The screwdriver (item 3).
4. 	The keys to Vilmar Cabaccang’s vehicle.
5. 	Swabs from the crime scene (items 10, 10A, 11A).
6. 	Serena Seidel’s clothing (items 4 and 5).
7. 	The jacket (item 6).
8. 	The cap (item 2).
C. Documents to be Sent in Advance of Testing
l. 	Respondents shall produce discovery materials in
the possession of the County of Maui.
2. 	Petitioner may serve subpoenas to obtain discovery
materials that may be in the possession of the
Federal Bureau of Investigations or the Honolulu
Police Department.
D. 	Timing
1. 	Testing of the items shall occur at dates which
are suitable to both parties, but in no event
shall this initial testing be conducted later than
two months after the filing of this order, except
by mutual consent of the parties or by subsequent
order of the Court.
E. 	Costs
1. 	Petitioner is responsible for reimbursing
Respondents, the State courts, and MPD for any
shipping and/or handling costs associated with the
transfer of the evidence.
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2. 	If Respondents elect to have a representative
present during testing, Respondents shall bear the
cost of having the representative present.
II. 	Further Information Regarding James Burkhart
A. 	Petitioner may serve subpoenas to obtain evidence of
confessions that James Burkhart allegedly made after
Petitioner’s trial.
III. Tape Recordings
A. 	The originals of: (1) the tape recording of the
conversation between Lisa Kimmey and Petitioner; and
(2) the 911 tape shall be sent, via overnight mail
service, to audio expert John Mitchell in Albuquerque,
New Mexico.
B. 	If the copy of the Kimmey-Christian conversation, which
was actually played to the jury, is located, that tape
shall also be sent to Mr. Mitchell.
C. 	Respondents may elect to bring the tapes to
Mr. Mitchell in person and to have a representative
present during Mr. Mitchell’s work with the tapes. 	If
they do so, Respondents shall bear any costs associated
therewith.
D. 	Prior to sending the tapes to Mr. Mitchell, Respondents
may make copies of the tapes.
E. 	The work on the tapes shall be conducted within two
months of receipt.
F. 	In addition to the above, Respondents shall provide
defense counsel, if available, copies of the following
video tapes: (1) crime scene, (2) Gas Express, (3)
police interviews of Maui Community Correctional Center
inmates, (4) police interviews of James Burkhart.
G. 	All tapes shall be sent to local defense counsel within
two weeks of the filing of this order.
H. 	Petitioner is responsible for reimbursing Respondents
and/or MPD for any shipping and/or handling costs
associated with the copying and mailing of discovery
materials.
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IV. 	Other Items
A. 	Respondents shall provide a list of all discovery
materials currently within the possession of the
Department of the Prosecuting Attorney - County of
Maui, and/or the MPD within two weeks of the filing of
this order.
B. 	Respondents shall allow defense counsel reasonable
access to and/or provide copies of any and all
discoverable materials, including but not limited to,
police reports, computer files, audio/video recordings,
photographs, charts, drawings, and exhibits.
C. 	Petitioner is responsible for reimbursing Respondents
and/or MPD for any shipping and/or handling costs
associated with the copying and mailing of discovery
materials.
V. 	Physical Evidence
A. 	Within three months of the filing of this order,
Respondents shall allow Petitioner’s counsel reasonable
opportunity to examine the physical evidence at MPD, at
a mutually agreeable time.
B. 	Petitioner’s examination of the physical evidence shall
be limited to three people: defense counsel, a
photographer, and an expert in crime scene
reconstruction.
VI. 	Disposal of Evidence
A. 	No items of evidence in this case shall be disposed of
during the pendency of the habeas corpus proceedings.
B. 	Respondents shall provide the State court clerk and the
MPD copies of this order not to dispose of evidence.
VII. Disclosure of Test Results, Certain Other Material
A. 	Petitioner shall provide Respondents with copies of any
and all documents, including, but not limited to, any
written and/or oral findings, conclusions, reports,
analysis, and other records of any type pertaining to
the results of DNA testing, and results of the forensic
examination by the audio expert.
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B. 	Petitioner shall provide any and all information within
its knowledge regarding any further incriminating
statements by James Burkhart, beyond those reported up
to and during Petitioner’s trial.
C. 	Petitioner shall provide Respondent with any and all
information, including but not limited to, documents,
reports, video or audio tapes, photographs, recordings,
evidence, names and addresses and phone numbers of
witnesses, that Petitioner intends to rely upon in
support of his Petition and/or evidentiary hearing, if
any.
VIII. Limitations on Disclosure.
A. 	All discovery provided to Petitioner is to remain in
the custody possession of Petitioner’s counsel and
counsel’s staff only.
B. 	All originals, and any copies and/or duplicates of all
discovery materials shall not be provided to anyone but
Petitioner’s counsel and counsel’s staff, without prior
approval of the Court and notice to Respondents.
IX. 	Commencement of Discovery
A. 	Petitioner may commence discovery upon the filing of
this order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, September 21, 2007.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States Magistrate Judge
TARYN CHRISTIAN V. IWALANI D. WHITE, ETC., ET AL; CIVIL NO. 04-
00743 DAE-LEK; INITIAL DISCOVERY ORDER
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