Saturday, November 21, 2009

ONGOING COVERAGE: KEVIN COE TRIAL

DNA results barred in Coe trial

Judge: Defense was denied opportunity

Karen Dorn Steele
Staff writer
September 10, 2008

Results from a DNA analysis that authorities wanted to introduce in South Hill rapist Kevin Coe's civil commitment trial will be suppressed because the state attorney general's office failed to preserve the evidence for testing by defense experts, a judge ruled Tuesday.

Spokane County Superior Court Judge Kathleen O'Connor said Coe's court-appointed defense team and the court were "entitled to notice that testing is going on" in 2007 after the state filed its 2006 petition to declare Coe a sexually violent predator and commit him indefinitely.

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By then, Coe had a legal team and discovery rules required his lawyers be notified, the judge said.

"The ultimate effect is there's a piece of evidence the respondent could have had a piece of. They were denied that opportunity," O'Connor said in her oral ruling, noting the attorney general's office had a "duty to preserve" the evidence.

O'Connor eliminated a slide that contains a partial DNA and a less definitive profile that the state wanted to use to tell the jury that Coe's sperm was "not excluded" as a match.

As a result of the state's misstep, O'Connor said she'll suppress the slide – barring the state from using it in the trial that starts Monday. The slides contain vaginal swabs taken in the early 1980s from three women who accused Coe of raping them.

One is from the only woman whose case led to a conviction; it survived a series of appeals and sent Coe to prison for 25 years. On that slide, the Washington State Patrol crime laboratory was able to declare a "profile match" with Coe's DNA.

The third slide contained only the DNA of the woman's consensual partner in 1981 who was not a suspect.

The slides are the only remaining evidence from Coe's previous trials; all the other physical evidence has been destroyed.

In arguments Monday, Coe's lead lawyer Tim Trageser clashed with Assistant Attorney General Malcom Ross over the state's using up all the DNA evidence. Coe's lawyers had hoped to conduct their own tests of the forensic evidence, Trageser said, while Ross said the state didn't intend to hide results.

One additional pre-trial motion remains.

O'Connor will hear arguments Thursday morning on a motion from Coe's lawyers filed Sept. 5 to close the courtroom during questioning of individual jurors on their responses to a questionnaire the court will distribute Friday to 667 prospective jurors – an unusually large jury pool for the high-profile case.

"In order to protect the privacy of prospective jurors and certain members of the Coe family, the courtroom should be closed to the public during individual voir dire," the motion says.

The Spokesman-Review will oppose the motion.