The four corners of each page of the affidavit do not explain how it is known that 82 year old Roberta Martin did not have consensual sex with the 23 year old man who entered her house in the middle of the night through the window.
The defence lawyer must be looking for evidence that
the victim said no in a manner that the 23 year old Break and Enter intruder understood. It sounds like some lawyers think they can argue
home invasion for consensual sex.
“Additionally, while there is a probable cause for a sexual act based on the DNA,
within the four corners of the affidavit there’s no evidence of non-consensual sex,” Chase told the judge."
A police affidavit said Darren Martell, 23, had recently been living in a camper at a residence near the home of Roberta Martin, whose burned remains were found in a nearby wooded area four days after she was reported missing.
vtdigger.org
True, this was a gasping comment by the defense but Counsel (Roberta Chase) was technically correct given the state forensic lab notified state police it only had
“preliminarily determined” that a DNA sample of sperm taken from the victim’s body matched DNA taken from Martell.
In other words, the defense was pointing out how charges for
aggravated murder appeared premature to the defense without DNA
confirmation, stated evidence of a perpetrated sexual assault by the defendant, and cause of death provided within the police affidavit.
In response, the Prosecutor agreed to remove from the charging documents, at least until the supplemental affidavit filed, the reference that Martin had been killed by “smothering and blunt trauma.”
To be clear, we're at a disadvantage not having seen the skinny police affidavit but I'm sure the defense wanted it on record (at the arraignment) that the Defendant had been held without bail since Monday (7/22) on a charge of lewd and lascivious conduct, generally a nonperson misdemeanor, so jumping the gun with the most serious,
aggravated murder charge, in advance of ready documented evidence shared with the defense-- could be encroaching on the defendants civil rights.
And I believe the Court showed the community it was sensitive to defense counsel's statement by denying Chase’s challenge, and finding there was still enough information within the four page police affidavit to support the aggravated murder charge.
Nonetheless, I think it's good to get these technicalities on the record early because this is not the case anybody wants where the Prosecution gets their hands tied over criminal procedure-- resulting in inflicting additional pain on an already hurting community. MOO