The court order issued in December seemed like a logical compromise: Send a video camera into a DNA lab to record the testing of biological evidence in a capital murder case. There will be no retesting because the evidence will be destroyed. The camera will document the testing.
But that December order sent several Sedgwick County officials to court on Friday. They came with a motion asking a judge to rescind the order, which they said would be hard to enforce, set a bad precedent and violate the policy of the Sedgwick County Regional Forensic Science Center.
And that county motion gave several of the area’s top criminal defense lawyers an opportunity to attack the credibility of the Science Center and its claim that it operates as an independent testing lab.
One of the defense lawyers, Jeff Wicks, called the independent claim “a little bit disingenuous.”
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He and his colleagues were equally skeptical of claims by county officials that videotaping the testing process would create an unnecessary burden on the lab.
“Burdensome? So what?” asked Jay Greeno, one of the lawyers. “It’s burdensome upon my client to be on trial for his life.”
The dispute, which remains unresolved, arose in the case of four defendants charged with capital murder in the November shooting deaths of Melissa and Roger Bluml of Valley Center. Melissa Bluml, a 53-year-old bank vice president, died a day after the shooting. Roger Bluml, 48, died about five weeks later.
The Blumls’ adopted son, Anthony Bluml, 18, is charged in the case, as are his biological mother, 35-year-old Kisha Schaberg; and two of his former Valley Center High School classmates, 18-year-olds Andrew Ellington and Braden Smith.
The chain of events that led to Friday’s hearing began in December when prosecutors mentioned in a motion that their physical evidence included firearms, cartridge casings, a purse and a shirt. The motion said the items had been swabbed for biological evidence, but that “the entire swabs collected will likely have to be consumed” to test them for DNA.
That prompted Wicks to ask for a court order to block the testing unless an expert for the defense is allowed to be in the lab to observe it. District Judge Terry Pullman denied Wicks’ request on Dec. 6, but as a compromise ordered that the testing be videotaped. He said the defense experts could review the tape.
Deputy County Counselor Jennifer Magana, acting on behalf of the Science Center, filed a motion last week seeking to rescind Pullman’s order. The issue landed in the courtroom of District Judge Jeff Goering on Friday.
Magana told Goering at the outset of the hearing that the Science Center has never allowed taping of its testing process.
“This would be a first,” she said.
District Attorney Marc Bennett said taping would be a bad idea.
“The idea of sticking a tripod in the corner of the room and recording sounds fine in the abstract, but when you get down to details, there are some functional difficulties,” he said.
Bennett and others at the hearing, which was attended by all four defendants, said a single stationary camera would not be able to record the entire testing process. Sending a cameraman into the environment, they said, would increase the possibility of a sample being contaminated. Bennett said the taping simply wasn’t needed.
“Very few places are more meticulously documented than a DNA lab,” he said.
The only witness at the hearing was Timothy Rohrig, the Science Center’s director. He conceded that the center’s funding comes from Sedgwick County, but insisted: “No law enforcement agency has any control over how we operate. We’re not an advocate in any of these cases.”
Rohrig said he had never heard of a court ordering the taping of DNA testing.
“I can assure you that if this is something that was routine, I would have heard of it before,” he said.
Rohrig predicted that the taping would lead to delays in other cases.
Wicks didn’t buy the argument.
“You hit the button to turn it on, and when you’re done you hit the button and turn it off,” he said. “How can that slow down procedure?”
Charlie O’Hara, another defense lawyer, said at the close of the hearing that the procedure should be preserved on tape.
“I’ve heard no legal reason why this can’t be done,” he said. “I’ve heard no factual reason why this can’t be done. I’ve heard no argument that says it can’t be done. They may not want to do it, but in a case as serious as this is, it should be done.”
Goering asked defense lawyers to consult with their DNA experts over the next two weeks to get a better idea of what parts of the test should be recorded if a camera is allowed into the lab. He said he would continue the hearing on Feb. 14.
Goering was also set to rule Friday on a handwritten motion by Anthony Bluml, who asked that his statement to detectives be suppressed because he was under the influence of narcotics when he made it. That motion was withdrawn by Bluml at the close of Friday’s hearing.