The Meaning of 'Discovery'

An appellate court ruling involving DNA has set some sex offenders free

Olin Gene Taylor, 50, is no stranger to the criminal-justice system. According to the state Department of Public Safety sex-offender Web site, he's a high-risk offender and has faced at least one conviction in the Los Angeles area.

He has also twice beaten Pima County sex-crime cases on appeal--at least so far. One case was a 1997 molestation conviction, the other a 1994 rape charge.

The statute of limitations is the length of time investigators have to bring a case to indictment--in this case, seven years. According to state law, that seven-year clock is "commenced within ... periods after actual discovery by the state."

The Pima County Superior Court determined that in Taylor's 1994 rape case, given advances in technology, "discovery" started when a DNA match was made--in 2005.

The Arizona Court of Appeals disagreed, and Taylor is currently walking the streets.

The state Supreme Court is slated to review the case, a process that could take months. In the meantime, Taylor's indictment was thrown out, and he was released to pretrial services--but he did not report.

Taylor's case is not the only one affected by the appeals court decision. As the law stands now, 30 other cases in the Pima County Attorney's Office will never see a courtroom, and the Tucson Police Department crime lab reports that it's working on at least another eight cases affected by the ruling.

There are probably more cases in limbo, too. But the state DPS, which analyzes DNA for smaller police jurisdictions around the state, did not respond to two interview requests over a three-week period.

According to local and national rape advocacy organizations, many of these suspects who are free because of this disagreement over the word "discovery" will inevitably strike again.

Taylor's recent dodge stems from a case where detectives secured DNA samples of the suspect from the victim, but they weren't able to match the samples with Taylor until the end of 2005--more than 10 years later--using the FBI's Combined DNA Index System (CODIS).

Walt Palser, Taylor's attorney, with the Pima County Public Defender's Office, believes the statute of limitations started when police got involved. Prosecutors claimed that because Taylor was identified using ever-evolving DNA technology that wasn't around in 1994, "discovery" meant when investigators identified him using DNA.

Pima County Superior Court Judge Michael Cruikshank agreed with the prosecution. Palser then asked the Court of Appeals for its opinion, and they threw out the indictment in November. The opinion was written by Judge Peter Eckerstrom.

Deputy Pima County Attorney Shawn Jensvold disagrees with the appeals court decision.

"There is other case law that deals with ambiguous statutes. We'll bring this up with Supreme Court," Jensvold said. He said the request for a review with the Supreme Court was filed on Jan 2.

Palser said the appeals court correctly made sense of the statute.

"The state followed the law," he said. "They did their job."

The case was brought back to Cruikshank, who released Taylor to Pima County Pretrial Services. According to Superior Court information officer David Ricker, the court has no idea where Taylor is, because he hasn't kept in contact, as ordered. The judge could issue a warrant during his next court date on Feb. 26, Ricker said.

Palser said he didn't know that Taylor may have fled pretrial custody--until he was told by the Weekly.

Tucson Police crime lab superintendent Susan Shankles says that in 1994, DNA testing was a mere novelty. The technology's growth has ushered in the need for pricy equipment, along with a mountain of evidence to process, with no staff available. That's created a huge backlog in processing times, she said.

Taylor's DNA was first obtained while he was serving time in prison on a kidnapping charge relating to the 1997 molestation case, but the sample wasn't processed by the Arizona DPS until 2001. Shankles says that's around the time that the DPS switched to a more advanced version of DNA coding that the FBI's CODIS system used. A TPD detective revisiting the case in January 2005 asked that the crime lab run samples from evidence, which was entered into CODIS on Oct. 12, 2005. DPS found a match the next day and confirmed it on Oct. 31, 2005.

A Pima County grand jury indicted Taylor in February 2006.

Taylor isn't the only man whose case was affected by the Court of Appeals' November opinion. The rape indictment of John Adrian Johnson was reversed, but he's serving a stint in the Arizona prison system on an unrelated burglary case. Johnson's name did not come up during the Weekly's search on the DPS sex offender list.

The Southern Arizona Center Against Sexual Assault, which provides counseling to rape victims and administers evidence collection after incidents, says the appeals court decision is frustrating. Watching an offender get thrown in jail is "closure, a big part of the healing process," said SACASA Executive Vice President Stephanie Sklar.

"Secondarily, you're letting someone go who could repeat," Sklar said.

Sklar said her organization works closely with legislators on toughening sexual-assault laws, and she plans to work closely with the state to amend the statute in question. Officials from the office of Senate President Tim Bee--a SACASA advocate--said several weeks ago that they would review the case and get back to the Weekly.

Meanwhile, Jensvold said his office has 30 other cases affected by the court ruling. That means that many of these suspects at large could strike again, says national advocate Steve Bush.

"It's almost a slam dunk," Bush said from his home base in San Diego.

Bush's daughter, Jenny, was a survivor of an assault by James Allen Selby, who was convicted on several Pima County rape charges. He later hanged himself in his Pima County jail cell.

If you have information on where Taylor might be, call 911 or 88-CRIME. You may remain anonymous.

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