Posted on 07/04/2005 10:41:31 PM PDT by SmithL
Attorneys for accused UT rapist Bruce Warren Scarborough are asking the state Supreme Court to hear their challenge of the state's collection of felons' blood for use in a DNA database.
They are not hopeful, however, that the state's highest court will accept the case before Scarborough is tried in at least one of five rapes of which he is accused.
"I'm not too optimistic," Knox County Public Defender Mark Stephens said. "The Supreme Court is probably going to refuse to take it."
Last month, the state Court of Criminal Appeals backed up the state's method of collecting felons' blood for DNA sampling, ruling that the privacy rights of convicted criminals like Scarborough are outweighed by the state's interest in solving cases.
It was a random run through the state's DNA database that led authorities to link Scarborough, imprisoned in a Blount County sexual assault, to a series of rapes of University of Tennessee coeds in 1997.
Until that 2002 DNA link, the high-profile attacks had gone unsolved.
The collection of felons' blood for DNA sampling has been upheld in court rulings across the nation, but the procedure had gone largely untested in Tennessee. Scarborough's case made for a perfect test case since authorities had never considered him a suspect and had no other evidence linking him to the rapes until the DNA match was made.
Because of that, Knox County Criminal Court Judge Mary Beth Leibowitz had allowed Stephens and Assistant Public Defender John Halstead to seek an appeal before trial.
She is not allowing the pair time, however, to convince the state Supreme Court to look at June's lower appellate court ruling affirming the state's DNA collection process.
At a hearing last week, Leibowitz lifted a stay that had been issued pending the appellate court's decision. Scarborough is now set to stand trial in one of the five rape cases Oct. 31.
At that trial, Assistant District Attorney General Kevin Allen wants to use testimony from a Blount County woman whose 1998 case put Scarborough behind bars.
The woman was 19 when, in October 1998, a man slipped inside her home and began fondling her as she lay asleep in bed next to her husband. Scarborough, nabbed in downtown Maryville minutes after the attack with the woman's identification in his pocket, was convicted a year later and sentenced to 15 years.
He is supposed to serve at least 60 percent of that prison term because of his long list of prior felony convictions. Last month, he was granted a parole hearing despite having served less than half of that term. Parole was denied.
Allen does not state in his motion on what grounds he seeks to use the Blount County woman's testimony. There are several listed in state law. Allen likely is seeking to show a pattern between the Blount County case and the UT rapes.
In both, the attacker appeared to have chosen women with similar features and, authorities suspect, staked out his victims before slipping into their homes.
Stephens said he and Halstead will oppose Allen's motion, noting that the burden is on Allen to show that his need for the woman's testimony outweighs its possibly prejudicial effect on jurors.
Usually, jurors are not allowed to know anything about a defendant's criminal background for fear they would assume the defendant is guilty of the crime of which he is being tried.
Jamie Satterfield may be reached at 865-342-6308.
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