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Judge rules on DNA testing; preliminary hearing set for May 30

By FOSS FARRAR
Traveler Staff Writer

WINFIELD -- All DNA evidence gathered in the investigation of the Jodi Sanderholm murder may be used up by the prosecution, a district court judge ruled Friday.

The ruling favored the prosecution but County Attorney Chris Smith said it was mostly a procedural decision and not a victory or loss for either side.

The ruling means that the defense might not be able to conduct its own test of the DNA evidence, which prosecutors think will link Thurber to the rape and death of 19-year-old Jodi Sanderholm in January.

Some of the tiny biological samples for DNA may be combined with like samples to yield results, Judge Jim Pringle said.

Although Pringle agreed to allow the prosecution to use up, or "consume," all DNA evidence, he set procedural guidelines to help ensure fairness.

Pringle heard arguments from the prosecution and defense before issuing his order in the third hearing so far in one of Cowley County's most highly publicized crimes.

The state was represented by two attorneys from the Kansas Attorney General's Office. Two defense attorneys represented defendant Justin Thurber.

Thurber sat silently through the entire hearing with his lawyers, except to answer "yes" to several questions from the judge. He looked straight ahead when he walked into the courtroom and did not look at the gallery, which included Sanderholm's parents, Brian and Cindy, and other members of the victim's family.

It was his second appearance in the Sanderholm case. At his first appearance, on Jan. 17, he listened as the judge read three charges against him: capital murder, aggravated kidnapping and rape.

On Friday, Thurber listened as the judge read a fourth count, sodomy. It was added to the list of charges last month.

Judge Pringle asked Thurber, dressed in a white shirt and neck tie, if he understood that the sodomy charge had been added. He answered "yes."

At the end of the two-hour hearing -- including a 30-minute recess after the lawyers presented their arguments -- Pringle reappeared with his written order. He provided copies of the order to the lawyers and members of the press.

Both the defense and the prosecution had filed written documents earlier this month setting out their arguments about DNA testing procedures.

A summary of those arguments was voiced by lawyers at Friday's hearing.

"The amount (of DNA evidence) is insufficient to allow for analysis," said Rick Guinn, of the state attorney general's office.

Guinn said that swabs were taken from Sanderholm's body and from a sexual assault kit. But the samples in the sexual assault kit are too small for individual testing.

"The state is seeking that samples from that sexual assault kit be consumed and combined," he said.

Additional DNA evidence includes swabs from the defendant and from his cell phone, Guinn said.

Defense attorney Tim Frieden, of the Death Penalty Defense Unit, asked that the defense team be allowed to inspect the DNA evidence before it is "consumed," or used up, in testing.

"We think we should at least be able to inspect these items before consumption," Frieden said.

"What benefit is there to you to inspect cotton swabs?" Pringle asked.

"To me, little or none," Frieden said. "But to someone of a scientific background it could mean a lot."

After the recess the judge read from his order, including requirements of the state regarding to DNA testing. They are paraphrased and summarized below:

* Only that much of any biological evidence in possession of the state may be consumed in the testing process that qualified Kansas Bureau of Investigation laboratory personnel in good faith believe is necessary to maximize the chances of yielding tangible results.

* Any biological material not consumed must be preserved by the state for independent testing by the defense.

* If the state in good faith believes that certain biological samples are too small to yield tangible results, then those samples may be combined with other like samples to maximize the possibilities of obtaining a DNA profile.

* Even if the state believes a biological sample has been totally consumed in the testing process, that sample or thing or object from which it was obtained shall be preserved by the state.

* Unless it is a violation of accredited crime lab protocol, the individual thing or object from which a biological sample is obtained shall be photographed by the state, and that photograph be provided to the defense.

Pringle added that the state should preserve and provide to the defense a computer printout -- if reasonably obtainable -- of each step in the testing process so an independent interpretation of the results is possible.

In addition, the state should preserve for the defense the physical results of any tests and slides; a copy of any written protocols used for analyzing a substance and bench notes, case notes, field notes or screening notes. Any other written material made by the chemist or analyst should be provided to the defense.

Pringle said that at the end of testing, the defense or defense's expert should be given the opportunity to personally view the samples remaining. If this cannot be done because of possible violation of a lab's protocol, then the viewing should take place outside the laboratory.

In an interview after the hearing, Smith said he is happy with the results of Friday's hearing. "Procedure-wise this isn't a win or loss for either side," he said.

The preliminary hearing is set for 9 a.m. on May 30 at the courthouse in Winfield. Pringle will decide whether enough evidence exits for the case to go to trial.

Above: Justin Thurber is escorted into a district court room Friday in Winfield by Capt. Steve Roberts of the Cowley County Sheriff's Department, and Undersheriff Don Read. Thurber is charged in the murder of Jodi Sanderholm.