|Judge backs evidence destruction in rape case|
|Sunday, February 09, 2014 9:38 PM|
COLUMBUS (AP) — The destruction of evidence ordered in the case of the rape and killing of an expectant mother was likely justified by harm that could occur if the material became public, according to legal experts. That’s despite a move toward preserving more evidence as a possible tool for exoneration, especially involving DNA.
At issue are photos and audio and video recordings collected in the investigation into the 2012 death of Deanna Ballman and her nearly full-term child at the hands of a doctor convicted of killing her with a heroin overdose.
Delaware County Judge Duncan Whitney approved a prosecutor’s request late last year to destroy the evidence once the case is wrapped up. The case is open while defendant Ali Salim appeals his 36-year sentence and a wrongful death lawsuit against him proceeds.
The evidence was obscene because its purpose was to arouse lust, assistant Delaware County prosecutor Kyle Rohrer argued in a December court filing.
“The dominant appeal of all the material is to the prurient interest,” Rohrer said. “It displays nudity in a way that tends to represent human beings as mere objects of sexual appetite. Some of the material further displays extreme and bizarre violence and cruelty.”
The material also violates Ohio voyeurism law, Rohrer said. That statute prohibits individuals from spying on people or recording them “for the purpose of sexually arousing or gratifying the person’s self.”
Investigators obtained videos of Salim assaulting a nude and unconscious Ballman, along with photos of Ballman, Rohrer’s filing said.
Salim’s lawyer didn’t oppose the destruction of the files, saying no one was arguing the nature of the evidence. Instead, the issue is the effect of the evidence on Salim’s sentence, which attorney Sam Shamansky argues is too harsh.
“There’s no value to us in having that evidence maintained,” Shamansky said.
Ohio law requires that biological evidence be preserved forever in any unsolved murder cases. The evidence has to be maintained for 30 years for sexual crimes including rape and for killings that involve less serious charges.
State law leaves the destruction of other types of evidence up to judges.
The Ohio attorney general’s office has identified hundreds of DNA matches in recent analyses of untested rape kits being submitted by investigators around the state.
Preserving evidence in criminal cases should be the norm, but the justifiable fear in a digital world of the material being released must be considered, said Doug Berman, a law professor at Ohio State University.
“You preserve any of this stuff, who knows not only who get their hands on it, but who knows who is eager to misuse this material for whatever potential criminal purpose,” he said.
There could be a concern down the road if Salim were to argue his current attorney gave him bad advice, though that’s hard to prove in cases involving a guilty plea, said Kevin McMunigal, a Case Western University criminal law professor and former prosecutor.
“Since both lawyers, prosecution and defense, have agreed to the destruction and it won’t take place until after civil litigation is resolved it seems uncontroversial,” he said in an email.