A motion before DC Superior Court Judge Todd Edelman on Dec. 1 to exclude DNA evidence obtained by prosecutors could delay a homicide defendant’s trial for the fourth time.
Joseph Smith, 67, is charged with second-degree murder for his alleged involvement in the fatal stabbing of his 62-year-old brother, Arnold Smith, in their family home on the 600 block of Galveston Place, SE on April 9, 2019.
Critically, Judge Edelman must rule whether more DNA evidence legally obtained by prosecutors after the fact may enter the trial, given that prosecutors knew the results of the first, illegal DNA testing.
In a November 25 hearing, defense attory, Joseph Yarbough, played body-worn-camera footage showing that Smith told a detective he would allow the detective to swab his cheeks for evidence only if his brother were alive. The detective led Smith to believe that his brother was still alive, though he had been pronounced dead at the hospital nearly two hours earlier.
Judge Edelman told parties during the Nov. 25 hearing that he would rule on the issue before the next hearing, though prosecutors got a warrant for new DNA evidence and re-ran the tests ahead of Edelman’s decision to exclude the original DNA results.
During the Dec. 1 hearing, Yarbough argued that though the prosecution had used legal methods to re-obtain Smith’s DNA, their intention in seeking the warrant was inherently tainted by their knowledge of the results in the first test and thus could not be entered into evidence.
“It would be beyond a leap of faith to say that nothing they learned affected their decision to seek a warrant,” Yarbough said.
He pointed to the lengths that prosecutors went to quickly re-test Smith’s DNA, which cost $10,000 and required them to fly in an expert witness from Africa to present the results to the jury, according to Yarbough.
Prosecutors argued that it is standard practice to present DNA evidence to the jury regardless of whether it implicates the defendant because juries like to see that the prosecution pursued all leads. They also said that proving a counterfactual — that their knowledge of the first test did not affect their decision to seek a warrant for the second test — was extremely difficult.
Prosecutors pointed to examples of phone searches, where information is often obtained through successive warrants and said that the reason for the outsize expense in this case was out of concern for maintaining the Dec. 1 trial date.
“The reason for the cost and the quick turnaround was to preserve our trial date,” a prosecutor said.
Judge Edelman said that he would give a ruling on the matter on Dec. 10, when the parties reconvene.
If Judge Edelman overrules the defense motion to suppress the evidence, then that may further delay the trial so that Yarbough and Bunke can have their own expert review the results of the new test.
Yarbough said that he felt ethically and constitutionally bound to review the results but that it could be possible to review them quickly.
“There’s a world in which this doesn’t take super long,” Yarbough said.
Yarbough and Bunke also filed a motion to sanction the prosecution for their failure to preserve body-worn camera footage from the crime scene, Smith’s home, while a search warrant was executed. According to Yarbough, the officer mislabeled the footage and failed to classify it as related to a murder, leading to its premature deletion.
Yarbough contended that because the officer would have been at the crime scene at the same time as several key witnesses and could have talked to them, the negligence around the handling of his body camera could have resulted in a major violation of the prosecution’s requirement to share statements made by witnesses with the defense.
If it comes out that the witnesses did talk to the officer, they could be barred from testifying in the trial.
Judge Edelman agreed to Yarbough’s request that the matter be investigated and asked the prosecution to bring the witnesses and the officer to the next hearing so that they could testify under oath about any statements that may have passed between them.
In a separate motion about one of the witnesses, Smith’s sister, Bunke successfully petitioned the court to appoint her an attorney, arguing that there were legitimate concerns that she could incriminate herself while testifying.
Prosecutors argued that she did not need a lawyer because the statute of limitations for her potential criminal behavior, falsifying documents related to the defendant, had passed.
Judge Edelman decided to have a lawyer appointed to her.
“I do think it’s appropriate for her to have counsel on this,” Judge Edelman said.
Prior to the conclusion of the hearing, parties also settled on an issue about whether to redact a dish cloth from a picture of the knife used in the murder. The image depicts the knife in the sink next to a dishcloth with reddish brown stains.
Bunke argued that the dish cloth was never tested for the presence of blood and said that the stains could have come from something else.
“The government has wrongfully speculated about other stains in the house,” Bunke said.
Judge Edelman met both parties half-way. He did not require prosecutors to edit the dishcloth out of the picture but instructed them not to speculate before the jury about what Smith may have done with the dishcloth.
Parties are slated to reconvene Dec. 10.
