Rape case evidence destroyed by Macon police, says attorney

A lawyer representing a man charged with rape has filed a motion asking that the charge be dismissed because Macon police destroyed DNA evidence in the case.

John Paul Battle, 25, was charged with rape in June 2009. His DNA had been entered into a state database after he went to prison in 2008 on an aggravated assault conviction.

In February 2009, technicians discovered that Battle’s DNA matched a profile created from DNA recovered from a Macon woman who had been raped in her car in 2002, according to the motion, filed in Bibb County Superior Court this week.

But the original DNA evidence was destroyed in 2006, according to the motion.

“Every piece of evidence, all the DNA, the swabs, the sexual assault kit, what was in the car, the condom, it’s all been destroyed,” said Alan Wheeler, Battle’s lawyer.

Battle has a due-process right to have the DNA evidence tested by his own expert, using the latest science, Wheeler’s motion contends. Because the evidence doesn’t exist, the test can’t be performed to try to prove his innocence.

Macon police Maj. Charles Stone said the department doesn’t know why the detective assigned to the case marked the evidence to be destroyed in 2005. The evidence was destroyed the following year.

The detective is no longer employed with the department, he said.

Stone said the department hasn’t had a prior instance in which DNA evidence in an open case was destroyed.

“We’re going to check and see what the problem is and see what we need to do,” he said. “We are concerned that the rape kit wasn’t preserved.

“We wish they had kept it.”

Lt. Mickey McCallum said the police crime lab periodically sends out letters to officers, asking them to check and see if evidence stored at the crime lab still needs to be kept.

DNA evidence is kept at the crime lab until a case goes through the court process, Stone said.

Prosecutors cite U.S. Supreme Court and Georgia Court of Appeals decisions in their argument that the case shouldn’t be dismissed.

They contend that unless the defense can show that police acted in bad faith in their failure to preserve potentially useful evidence, the destruction of evidence doesn’t constitute a denial of due process.

Because the police didn’t know that the evidence could have been exculpatory — used to prove a defendant’s innocence — they didn’t act in bad faith, according to court documents.

Prosecutor Nancy Scott Malcor said a hearing is scheduled for next week on the motion to dismiss the case. She declined to comment further because the motion is pending.

Wheeler said the state Legislature passed a law in 2003 requiring law enforcement agencies to keep all biological evidence that relates to the identity of a perpetrator of a crime.

He cites a 2009 Georgia case in which a charge was dismissed because law enforcement officers destroyed a cell phone that a defendant’s attorney argued contained potential alibi and witness contact information.

In Battle’s case, Macon police didn’t consult with the district attorney’s office or seek a court order before destroying the evidence, Wheeler wrote.

The only evidence that remains is a latent fingerprint taken from the woman’s car that police decided was not legible, according to the motion.

The woman picked Battle out of a police lineup April 7, 2009. A fresh DNA sample from Battle was collected about a week later. The GBI wrote a report June 4, 2009, stating that scientists concluded “with a reasonable scientific certainty” that DNA obtained from the rape kit matched Battle’s, according to the motion.

Wheeler said Battle was paroled in December 2009 on the assault charge, but he is being held at the Bibb County jail without bond because of the rape case.

Information from The Telegraph’s archives was included in this report. To contact writer Amy Leigh Womack, call 744-4398.