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IOWA CITY — Lawyers for a Manchester man convicted in 2020 of killing 18-year-old Michelle Martinko 39 years earlier argued Friday during an appeal that he had a “reasonable expectation of privacy” and police should have gotten a warrant to obtain a DNA sample from a drinking straw he tossed in the trash.
The Iowa Supreme Court justices, hearing oral arguments at a session at the University of Iowa College of Law, immediately started questioning his attorneys’ arguments — pointing out that this testing was limited only to identifying the cold-case suspect — Jerry Burns, 50 — and not for any medical or other private information. And law enforcement is allowed to use genetic material to identify someone under Iowa law.
Burns’ DNA, found on the straw he discarded in the trash at a Pizza Ranch in Manchester, connected him to the fatal 1979 stabbing. Investigators had followed him to the restaurant and watched him throw him throw the straw away. He was arrested for Martinko’s murder on Dec. 19, 2018.
Martinko's body was found Dec. 19, 1979, in her parents' Buick, which was parked near J.C. Penney at Westdale Mall in Cedar Rapids. She had gone to the mall that night to get a coat her mother had put on layaway.
The teenager was stabbed 29 times, according to testimony at Burns’ murder trial in 2020. A pathologist said the fatal stab wound was to her heart and that she bled to death.
Burns' DNA profile was developed from blood on Martinko's black dress. The profile found a hit with DNA from Brandy Jennings, a distant cousin of Burns’, in a public genetics database.
Investigators then eventually narrowed the possible suspects based on the DNA profile to Burns and his two brothers. The brothers were eliminated as suspects during the investigation.
Burns’ lawyer for the appeal, Nicholas Curran of Downer’s Grove, Ill., argued police could have potentially used Burns’ DNA for other purposes besides the criminal investigation.
Justice McDermott asked how if differed from fingerprinting someone. Justice Dana Oxley asked what the DNA sample would reveal beyond identity. Iowa law states police can obtain and test genetic information to help identify a person during a criminal investigation.
Curran, who worked on this appeal with Kathleen Zellner, the lawyer who received national attention on Netflix’s “Making a Murderer” documentary, said DNA is sensitive material that reveals unique genetic facts about a person and provide a wide variety of information about that person.
DNA can be used to determine whether someone has a certain disease or is vulnerable to cancers or mental disorders, and could be predictive of what personality traits or particular behaviors an individual might exhibit, Curran said in a written argument.
Curran also argued there were two searches in this case conducted without a warrant — retrieving the straw from the trash and extracting the DNA from the straw and having it analyzed.
Nathan Wessler, a lawyer with ACLU Foundation in New York, said the involuntary shedding of DNA isn’t considered abandoned and is not protected as the state will argue. Wessler said even if Burns’ DNA wasn’t used for anything other than identity, there is the potential for invasion of his privacy.
McDermott said this might be more of a legislative than a court question — to limit lawful surveillance techniques.
Assistant Iowa Attorney General Tyler Buller said the defense is asking the court to undo about 150 years of criminal forensics, which is like “the bloody bat found at the crime scene which has blood, hair and fibers” that is used to identify the suspect — only now it is DNA in this case.
Since Burns abandoned the straw — “trash is trash” — there is no expectation of privacy, Buller said. The Fourth Amendment doesn’t protect an abandoned item, he said.
Buller said the investigation was “good old police work.” Investigators seized a straw left in the trash at a restaurant, which doesn’t constitute a search. They didn’t think they needed a warrant. But they did obtained a warrant when they were going to collect DNA from a person — Burns — which is required.
The court will rule on the appeal at a later date. Burns is serving a life sentence in prison.
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