DNA evidence permitted in 2 rape trials Judge finds no due-process breach COUNTYWIDE

October 16, 1992|By Alan J. Craver | Alan J. Craver,Staff Writer

Also in Friday's Howard section, a story on the trial of Joh Daniel Kelly should have said the prosecution requested a postponement because a witness was not available.

The Baltimore Sun regrets the errors.

Prosecutors will be permitted to use DNA evidence in trials of two men charged with multiple counts of rape, a Howard Circuit Court judge has ruled.

The attorney for the two men, who are charged in separate cases, argued the evidence is unreliable and should be barred because it would violate their constitutional rights.

FOR THE RECORD - CORRECTION

But Circuit Judge Cornelius Sybert Jr. denied the defense attorney's motion in an Oct. 6 ruling.

The ruling followed a week-long hearing in the cases of John Daniel Kelly and Michael Devon Armstead.

Assistant Public Defender Louis Willemin, who is representing both men, argued that the unreliability of DNA profiling methods would violate the defendants' due-process rights.

DNA profiling is used to identify crime suspects by a genetic test on specimens of body tissue or fluid. The tests are used regularly by prosecutors in murder and rape trials.

In the Kelly and Armstead cases,the DNA tests were performed by the FBI and Cellmark Diagnostics of Germantown.

Assistant State's Attorneys Christine Gage and Kate O'Donnell, who are handling the cases, argued that DNA tests are reliable and can be used at trial under a 1990 state law.

But Mr. Willemin argued that the agencies that did the tests do not use new procedures that would protect his clients' rights to a fair defense.

Judge Sybert dismissed that argument.

"The court is not convinced that the existence of these different procedures renders the methods used by the FBI or Cellmark unreliable," he said in a six-page ruling.

The judge also noted that Mr. Willemin will be able to cross-examine the FBI and Cellmark during the trials.

Judge Sybert dismissed an argument that the state law permitting the use of DNA evidence was too vague because it does not contain specific methods for the tests.

Mr. Kelly is scheduled for trial on Monday on two counts each of first-degree rape and first-degree sexual offense, three counts of burglary and one count of assault with intent to rape.

The prosecution has rejected a postponement in the trial because of the unavailability of a witness, records say.

Mr. Kelly, 24, is accused of attacking three women in their Ellicott City homes between August 1989 and May 1990. He allegedly raped two victims and attempted to rape a third, a 63-year-old woman, records say.

Armstead, a convicted rapist serving five life sentences for cases in Anne Arundel County, is scheduled for trial on Nov. 30.

He is charged with two counts of first-degree rape in a May 1989 attack on a Marriottsville woman and a January 1991 attack on an Ellicott City woman.

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