September 9, 2008 in City

Coe defense says evidence was mishandled

Prosecution argues DNA slides should not be excluded
Staff writer
 

“South Hill rapist” Kevin Coe was absent for motions leading up to his Sept. 15 civil commitment trial, but there were plenty of sparks Monday.

Coe’s lead lawyer accused the state of mishandling old forensic evidence and misleading the defense about new DNA tests pursued in an effort to declare Coe a sexually violent predator.

DNA evidence on slides taken from three women in the early 1980s – including the woman Coe was convicted of raping – was mishandled, said Coe’s court-appointed lawyer Tim Trageser.

The slides contain vaginal swabs taken at the time of rapes, when DNA testing didn’t exist. They are the only historical evidence left of the assaults because everything from Coe’s 1981 and 1984 prosecutions has been destroyed.

The evidence, Trageser said, “sat in a property room for a quarter century and then in 2006 it reappeared,” as the state was preparing its petition to civilly commit Coe after he’d served 25 years in prison for the one rape conviction that withstood a series of appeals.

Over that quarter century, the slides had been moved from Spokane to Seattle for Coe’s second trial, where they were stored alongside paper envelopes containing samples of Coe’s hair and vials of his blood and saliva, and then transported back to Spokane. Trageser argued it’s likely the slides were cross-contaminated with Coe’s DNA and are unreliable evidence.

Coe’s DNA is on the slide of the woman he was convicted of raping and may be present on the slide of one of the other women, said Assistant Attorney General Malcom Ross. He said the physical evidence should be introduced at trial.

“We have an amazingly intact chain of custody,” Ross said, including the doctors who created the slides at Deaconess Medical Center and the Spokane police detective who took them to Seattle and returned them to Spokane at the end of Coe’s second trial. The weakness in the chain is the “minor” issue of how they were stored in Seattle, Ross added.

Ross acknowledged that two of the slides were contaminated at the Washington State Patrol crime lab with the DNA of a lab technician who handled them without gloves. But the contamination “does not exclude this evidence” because today’s DNA testing is sophisticated and can differentiate between several people, he added.

Spokane County Superior Court Judge Kathleen M. O’Connor called the chain of custody issue a “forensic jigsaw puzzle.” She ruled not to exclude the slides “at this time,” but will make additional rulings as the testimony develops.

Trageser and Ross exchanged heated words after Trageser accused the state of deliberately using up the remaining DNA on the slides from the three women without saving anything for a defense analysis – and misleading Coe’s attorneys on the tests they conducted.

“I have a significant problem with the handling of these DNA slides after they were discovered by the attorney general’s office,” Trageser said.

The state provided results on two of the women in July 2007 but was silent for a long time on the third. When Coe’s lawyers inquired, they were told the Washington State Patrol lab was “still testing,” Trageser said. They were not told that the lab had excluded Coe as the donor – and also were not told the state had sent the sample to a private lab for additional testing with a more sophisticated machine that concluded three sperms could be Coe’s, Trageser added.

“The slides were destroyed after the testing. …We had no opportunity to contest that,” Trageser said, accusing the attorney general’s office of “significant bad faith.”

In an angry rebuttal, Ross said Trageser was misrepresenting the state’s actions. He said the Washington State Patrol lab did not exclude Coe on the second DNA sample but concluded they couldn’t get a “reportable DNA profile.”

The attorneys waited for a new machine lab officials had ordered, but it didn’t provide a better result, and the state decided to send the sample to the private lab for additional testing.

A new, court-ordered DNA swab taken from Coe’s cheek last year found a match from the sperm fraction of the slide taken from the woman Coe was convicted of raping, Ross said.

“There was never any intent on our part to hide results,” Ross said. “We did want results from DNA testing before we filed a petition on Mr. Coe,” Ross added.

O’Connor pressed Ross on why he didn’t share the test results earlier with Trageser.

“Do you feel you have an affirmative duty to inform the respondent?” she asked.

“Looking back, yes. But until then, they had shown no interest,” Ross replied.

“That may be a reason. I’m not sure it’s a reasonable reason. This is a serious issue for me,” O’Connor said, adding she’ll make her ruling today after reviewing court documents about the testing issues.

In a briefing for the media Monday morning, O’Connor said 667 citizens have been summoned as prospective jurors for the Coe trial. They will appear Friday at the courthouse and fill out detailed questionnaires. Individual questioning of the jury pool, called voir dire, will start Monday.

O’Connor will rule later this week on a defense motion asking for the courtroom to be closed to the press and public during voir dire. The Spokesman-Review will oppose the motion to close the courtroom.

Reach Karen Dorn Steele at (509)459-5462 or at karend@spokesman.com


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