Sexual assault case almost a mistrial
A criminal case of alleged sexual assault playing out at the San Luis Obispo Superior Courthouse came close to a mistrial after it was discovered on Tuesday that potentially key DNA evidence was never handed over to the defense.
While the judge ultimately found the evidence may be beneficial to the defense, she ruled that the error was not intentional and there was no misconduct involved.
Little about the felony case against Cambria resident Herbert Connor has been routine. It survived a defense attempt to have the state step in when the county’s elected District Attorney, Dan Dow, personally took over prosecution duties after a threat of bad publicity by the woman’s civil attorney, sparking allegations the case is politically motivated.
The case against Connor, 73, also suffered a two-day setback after Dow made improper statements about his burden of proof to prospective jurors during jury selection.
But on Thursday, the case appeared on the brink of a mistrial after the District Attorney’s Office told a judge that the Sheriff’s Office late Tuesday provided a DNA test report that possibly showed DNA from
someone other than Connor on the alleged victim’s breast.
The report, which was moved into evidence Thursday, was ruled confidential and has not been seen by The Tribune. Additionally, a gag order issued by the judge prevents either party from discussing the case.
Discussions in the courtroom, however, indicate that the DNA test was ultimately inconclusive, though Connor’s defense attorney, Ilan Funke-Bilu, successfully argued its findings are still helpful to his case and would have been a vital point made in his opening arguments.
Though Superior Court Judge Jacquelyn Duffy appeared to be open to hearing an argument for a mistrial, Connor asked that the trial press on — with certain remedies — because he does not have the money to defend himself in a second trial should Dow refile the case.
Connor has pleaded not guilty to felony charges of assault with intent to commit rape and sexual battery, as well as a mis- demeanor count of inflicting corporal injury. He faces up to seven years in state prison if convicted on all counts.
He is accused of assaulting a 67-year-old Cambria woman with whom he had an on-again, off-again friendship, in April 2017. According to the woman, after helping her bring in groceries, Connor threw himself upon her and groped her, forcing her onto her bed before she somehow fell and injured her shoulder in a door jam.
“I thought that he was going to rape me,” the woman testified.
In a subsequently recorded phone call between the two that was played for jurors, Connor is heard apologizing for his unspecified behavior and pledging to leave the woman alone forever.
The Tribune does not name alleged victims of sexual violence.
Following the alleged discovery of the DNA test report Tuesday, Dow filed a “statement of facts” in which he wrote that unbe- knownst to his office, several oral and body swabs submitted by the alleged victim were sent to the California Department of Justice crime lab in Goleta for analysis.
After the trial recessed for the day on Tuesday, Dow wrote, he received a call from Sheriff’s Office Det. Devashish Menghrajani, an investigator in the case, who reportedly said that while preparing for his testimony “he discov- ered that he had never sought DNA results from the California Department of Justice forensic laboratory and had not received them.”
That report had been completed in June 2017, according to the filing.
As Funke-Bilu confirmed on Wednesday, Dow immediately notified the defense of the omission and provided his office with the report.
“At no time prior to January 22, 2019, had it been known to staff of the District Attorney’s Office that any evidence in this case had been sent to the DOJ laboratory for examination,” Dow’s filing reads.
The report is significant because it found a third party’s DNA on the alleged victim’s breast during her initial sexual assault exam, taken more than 24 hours after the alleged incident. One of the counts against Connor stems from his alleged contact with the woman’s breast.
“This quite frankly should have been caught by myself or by (defense) counsel during discovery,” Dow told Duffy Wednesday. “Sometimes that’s the case in this imperfect system.”
But Dow also argued that the error wasn’t caught because there was never any doubt about the alleged assailant’s identity, and there was no mention in investigative reports of the DOJ’s involvement.
“This is not a ‘who done it?’ case, but it’s a case of ‘what happened?’” Dow told Duffy Wednesday.
Dow argued that at the end of the day, the inconclusive report was of little value to the defense or prosecution.
“It’s not relevant,” Dow said. Funke-Bilu disagreed. “It’s a possibility there was a third party that had physical contact with her that very morning,” Funke-Bilu said. “We have scientific evidence that somebody else touched her breasts.”
With a mistrial not being requested, Duffy granted Funke-Bilu’s motions for an additional jury instruction about the DNA evidence, as well as his request that the defense, not the prosecution, get to call the crime lab’s forensic technician, and that he be able to deliver a roughly five-minute additional “opening argument” about the technician’s expected testimony.
Duffy ruled that, despite how it happened, evidence was withheld from the defense by “the prosecution team” that included the crime lab, in violation of law. She did not find, however, that the omission was intentional.
Funke-Bilu agreed there was no evidence to suggest otherwise.
Testimony is scheduled to resume Friday.
Defense attorney Ilan Funke-Bilu, right, questions a witness during the preliminary hearing for Herbert George Connor, who faces charges of assault with intent to commit rape, sexual battery and corporal injury.