Focus on DNA in hearing for ex-officer accused of sex assault

rahumada@modbee.comMay 31, 2012 

Gaines Lee

Booking photo of Lee Freddie Gaines II. Lee Freddie Gaines II, a former 5-year veteran police officer with the Modesto Police Department is facing several felony charges, which are alleged to have occurred during his time as a police officer.

MPD — MPD

— DNA evidence became the focus of arguments during a court hearing Thursday morning in the case of a former Modesto police officer accused of sexually assaulting a woman in a motel room.

A criminal grand jury in March indicted Lee Freddie Gaines II, 27, on charges of oral copulation by force, being armed with a firearm while committing a sexual offense, sexual battery and assault under color of authority. He has posted $325,000 bail and remains free as he awaits his trial.

The alleged victim is a 37-year-old woman who said she works as a massage therapist at a local motel. The woman has told The Bee that the incident occurred the night of Jan. 5 after she got a call for service and the officer came to her motel room. She said the officer handcuffed her and demanded oral sex.

Mary Lynn Belsher, Gaines' defense attorney, has subpoenaed records from the state Department of Justice crime lab in Ripon pertaining to the DNA evidence collected and analyzed.

"(The prosecution) clearly misrepresented the DNA evidence to the grand jury," Belsher argued in court Thursday.

Chief Deputy District Attorney Dave Harris has filed a motion asking the defense's subpoena be denied. He argued in court Thursday that the discovery evidence process is the appropriate way for the defense to receive the prosecution's evidence. That way the prosecution can provide only evidence a judge has deemed appropriate for release.

The prosecutor told the judge that Belsher is trying to make an "end-run around (the discovery process) to gather information."

By law, Belsher was not present during the grand jury testimony, but she has read the transcript that remains temporarily sealed by the court.

She argued that the crime lab records need to be turned over so she can "challenge what happened in this one-sided secret hearing."

Standards questioned

On Thursday, Belsher questioned the ethical standards of the Ripon crime lab, which came under scrutiny in September 2010 when one of its former analysts was arrested on suspicion of skimming methamphetamine and cocaine stashes seized from accused criminals. The 4½-month investigation into drug tampering did not involve the DNA analysis.

Without the crime lab's records, Belsher argued, the court will have to rely on testimony from crime lab officials.

"What is the prosecution trying to hide?" she said in court. "I thought the DOJ works for everyone; not just the Stanislaus County district attorney's office."

Another hearing scheduled

Stanislaus County Superior Court Judge Marie Silveira told the attorneys there is case law that indicates the defense is allowed to subpoena records from government agencies working with the prosecution in a criminal case. But that is meant only for records the prosecution is not required to provide to the defense.

Silveira said the subpoena is seeking some investigatory materials in Gaines' case that must be provided through the discovery evidence process.

The judge said the subpoena also seeks some materials that are not directly tied to the investigation, like DNA samples from analysts at the Ripon crime lab.

More time is needed to review each item of evidence listed in the subpoena, Silveira said, before she can make a ruling on the matter. She scheduled another pretrial hearing June 7 and requested for an attorney representing the Department of Justice to attend.

More arguments

Another issue the attorneys clashed about Thursday was the postponement of a hearing set for Monday, when Belsher would have challenged the indictment against Gaines.

Superior Court Judge Ricardo Córdova was assigned to preside Monday, so the attorneys went to his courtroom Thursday morning to argue about a delay requested by Harris because he'd been sick. Because of that, he said, he has not filed a response to Belsher's motion to dismiss the charges; he asked for another week to do so.

Belsher argued the prosecution has "no good cause" to postpone Monday's hearing. She said the district attorney's office has other chief deputies who could have responded. Córdova disagreed and rescheduled the hearing for June 13.

Once the motion-to- dismiss hearing starts, Silveira has said some details from the grand jury proceedings will be revealed in open court. The entire transcript will be unsealed at the end of the hearing, she has said.

An attorney representing The Bee has argued in court that the public should have access to the grand jury transcript. In the matter, the attorneys agreed with Silveira to defer the ruling until after the motion-to- dismiss hearing occurs.

Bee staff writer Rosalio Ahumada can be reached at rahumada@modbee.com or (209) 578-2394.

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