DNA test frees Selma man accused of rape, forces prosecutors to look elsewhere

dquizon@newsobserver.comFebruary 11, 2013 

Elio Santos de la Cruz

— A DNA test that prosecutors thought would help convict a man of raping a mentally handicapped woman in June 2011 has instead led to his release from jail a year and a half after he was arrested.

Johnston County prosecutors still think Elio Santos de la Cruz sexually assaulted the woman; police found him in a hotel room with her. The woman, who is mentally handicapped, deaf and mute, had been locked in a bathroom, and she had sperm and saliva on her body.

But DNA tests showed that someone else’s sperm was inside the woman, suggesting that another man raped her.

Prosecutors have since dropped the rape charge against Santos de la Cruz. They add that he spent more time in jail awaiting trial than he would have spent if he had been convicted of sexual battery, likely the most serious charge prosecutors could have brought given the DNA evidence.

Now Santos de la Cruz, a 35-year-old migrant worker thought to be in the country illegally, has been turned over to federal authorities for deportation.

Assistant District Attorney Paul Jackson says the rape case is closed unless someone comes forward with new evidence or investigators find another DNA match in the criminal database.

“I’d love to get justice for this victim,” Jackson said. “If they ever get a match on this, there’s a possibility I could prosecute this case.”

The News & Observer does not identify victims of sexual assaults; the woman’s family declined to comment on the case.

Selma police arrested Santos de la Cruz in June 2011 and charged him with second-degree rape, felonious restraint and possession of cocaine.

Jackson said Santos de la Cruz was seen talking to the woman at a nearby restaurant. The woman’s family told him to leave her alone. They later noticed she was missing.

Found in same room

According to court documents, Selma police found the two in a room at a Selma motel. Officers reported that Santos de la Cruz was walking around with his pants unzipped.

Officers brought in a cousin of the woman to speak with her using sign language. Her cousin asked if she and Santos de la Cruz had sex, and the woman indicated yes, according to Selma police.

Police took the woman to Johnston Medical Center, where a nurse performed a standard rape-kit examination. According to police, the test showed the woman was probably the victim of a sexual assault.

Prosecutors moved forward with the case on the grounds that Santos de la Cruz had sex with a mentally disabled person, which the state classifies as second-degree rape.

But tests from the SBI’s State Crime Laboratory showed that two sets of DNA had been recovered from the woman’s body. Santos de la Cruz’s DNA was not found in sperm samples taken from the woman’s vagina, but the tests also indicated there was a high probability he was the source of a saliva sample taken from her body.

The second-degree rape charge against Santos de la Cruz is defined under state law as penetration. But because the victim cannot testify about what happened, and Jackson couldn’t prove penetration, he decided to drop the charge.

“The only way I could prove this case is through the sperm,” he said. “She can’t tell me what happened.”

Jackson said he decided not to charge Santos de la Cruz with sexual battery – and to drop the felonious restraint charge.

“At that point, prosecution becomes moot,” Jackson said.

Instead, Jackson released Santos de la Cruz to Immigration and Customs Enforcement officials. He is currently at a detention center in Georgia.

Clerical error

Santos de la Cruz and his attorney, Steven Walker, faced extensive delays in getting the results of the DNA testing. The State Crime Laboratory did not complete the test until September, about 15 months after his arrest.

Then a clerical error by the district attorney’s office delayed the process again, keeping Santos de la Cruz in jail more than four months after the test could have freed him.

Walker tried to have the case dismissed several times, saying his client’s right to a speedy trial had been violated. He was turned down each time.

Jackson blamed his office’s delay on “unintentional human error.” Staffers must download test results from a secure SBI website and pass them on to attorneys on both sides. Somewhere along the line, a staffer failed to download the file or pass it on, and Jackson says he didn’t receive it until Jan. 24.

Walker said that while the error by the DA’s office was unusual, the 459-day wait for the SBI is typical.

The State Crime Laboratory handles evidence analysis for law enforcement agencies throughout the state.

Last year, it received more than 3,900 submissions. Joseph R. John, the lab’s director, said that is an overwhelming caseload for 25 analysts.

“It is just mathematical reality; we cannot handle in a timely manner the number of cases we have coming in the door with the number of scientists we have in the lab now,” he said.

The lab usually has test results nine to 12 months after a sample has been submitted, John said. Contrary to what is seen on TV shows, he said, DNA analysis is slow work. Just one submission typically takes 40 staff hours.

Walker said the state needs to address the problem somehow. Some of the work could be outsourced to outside agencies, he suggested, but authorities might worry about the risk of tampering.

“There may be other remedies,” Walker said. “But I think everybody agrees we’ve got to speed up the process.”

Quizon: 919-836-5768

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