Judge rules DNA evidence can be used in trial of alleged serial rapist

Thursday, May 12, 2005 | 9:30 a.m.

District Judge David Wall ruled Wednesday that DNA evidence that stemmed from a DNA sample illegally obtained from an alleged serial rapist by his probation officer can be admitted at the man's trial.

Dushon Green's lawyer, Michael Gowdey, had argued that since Green's initial DNA sample was taken illegally by his probation officer, and because that sample served as the basis for Metro detectives obtaining a search warrant to extract another DNA sample from Green, none of the DNA evidence should be admissible at Green's trial.

Gowdey said the search warrant and second DNA sample taken from Green amounted to the "fruits from the poisonous tree."

The DNA evidence is crucial to the prosecution's case against Green, who is pleading not guilty to 12 counts of sexual assault and multiple charges of kidnapping, robbery and burglary.

"He (Green) was not a suspect in the eastside rapist case (prior to the DNA sample) and there is nothing tying him to the case, but the illegal DNA sample," Gowdey said.

Under Nevada law a DNA sample can be taken from an individual only as a result of a judge's order, with a legal search warrant or if the person has committed certain crimes. When his DNA sample was taken, Green was on probation for a gross misdemeanor conviction of attempted pandering, a charge that under Nevada law doesn't require DNA testing.

The case against Green rests largely on the DNA evidence because at his preliminary hearing none of the five victims who testified got a good look at their attacker's face.

Gowdey said he would "digest" Wall's ruling before deciding whether to file an appeal with the Nevada Supreme Court but he hinted that he was obligated to appeal.

Gowdey said the admissibility of Green's illegally collected DNA was "bigger than just the Dushon Green case. It's an issue of first impression that could affect everyone in society."

Gowdey said a "logical extreme" stemming from Wall's decision to allow the DNA evidence into trial could be police officers who fail to obtain a search warrant to obtain a person's DNA turning to the Department of Parole and Probation to get the sample for them.

Chief Deputy District Attorney Tom Carroll countered that because Green's probation officer didn't take the DNA sample at the request of Metro detectives, but instead at the request of the officer's supervisor, there was nothing to suggest the sample was taken in bad faith.

Carroll said when Green's DNA matched unknown DNA evidence in a computer database detectives, also acting in good faith, obtained a search warrant to get a DNA sample from Green.

Wall agreed saying decisions from the Nevada Supreme Court and the 9th U.S. Circuit Court of Appeals might not address DNA samples, but in analogous situations where evidence was illegally and led to an arrest, the evidence was allowed.

The judge said one case involved a police officer who, without obtaining a search warrant, took photos that captured an item that led to an arrest. Wall also said in another case an officer found a bullet at a location for which authorities had no search warrant, and that led to an arrest that was not thrown out by the courts.

In both cases it was determined the officers didn't act in bad faith in uncovering the evidence, and in both cases the evidence in question was admitted at trial.

Wall said unless the facts changed regarding the reason why Green's probation officer took the DNA sample, the DNA evidence will be admissible at trial. The judge said if, for example, it came to light that detectives did ask the probation officer to take the sample, then he would certainly reconsider his decision.

Gowdey said there was "a world of difference" between a casual photograph or a found bullet and a sample of man's bodily fluid containing his specific genetic identification.

Gowdey said he had seven to 10 days from Wall's ruling to file a notice of appeal to the Nevada Supreme Court.

Green remained jailed today at the Clark County Detention Center on $620,000 bail and is scheduled to stand trial on July 25 before Wall.