Sex­ual as­sault case al­most a mis­trial

The Tribune (SLO) - - Front Page - BY MATT FOUN­TAIN

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.

‘DIS­COV­ERY IS­SUES’

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.

JOE JOHN­STON jjohn­[email protected]­bune­news.com

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.

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