CEDAR RAPIDS — A judge ruled Wednesday that prosecutors cannot use evidence and testimony to persuade a jury that a Manchester man was motivated to kill Michelle Martinko in 1979 because they believe he has a “fetish” for viewing internet pornography that features blonde women being sexually assaulted and killed.
Sixth Judicial District Judge Fae Hoover, in her ruling, said computer searches and website visits conducted by Jerry Burns, 66, charged with first-degree murder, occurred in 2018 — “no less than 38 years after the date of the alleged crime.” That gap lessens its relevance to the fatal stabbing of Martinko, 18, and “is unduly prejudicial” to Burns and possibly could violate his right to a fair trial.
Hoover said there also would be a risk that Burns could be convicted based upon his taste in pornography rather than on “proof beyond a reasonable doubt” in the cold-case killing.
This evidence was important to the prosecution in showing any possible motive or intent because there is no known connection between Burns and Martinko. They didn’t know each other and there is no other evidence to establish a motive.
This is the first of two rulings Hoover must make before the trial starts Monday in Scott County. She heard testimony at a hearing held over three days, and the lawyers also submitted lengthy written arguments last month.
Burn’s lawyer, Leon Spies, asked the court to disallow the admissibility of Burns’ internet searches and activity found through a search warrant last December.
He also wants Burns’ statements to police and DNA evidence linking him to the crime kept out of trial, arguing they were obtained without a warrant and were violations of privacy.
During the evidence suppression hearing, a police investigator explained how a public genealogy database — called GEDmatch — led to Burns being identified as a match to blood evidence found on Martinko’s dress and gearshift of her car, where her body was found Dec. 20, 1979, in a parking lot at the Westdale Mall.
Police covertly obtained Burns’ DNA from a drinking straw he left on a table after eating lunch Oct. 29, 2018, at the Pizza Ranch in Manchester, testimony showed.
Hoover’s second ruling on the DNA evidence may be filed Thursday.
Hoover, in this ruling, also said the prosecution’s expert witness, Randy Cole, who specializes in sex offender assessments, training and treatment, will not be allowed to testify about any theories based on Burns’ internet activity.
She noted that Cole didn’t spend any time with Burns or his family, and had no access to any background information of Burns to make a basis for his opinion.
Cole, who has over 30 years experience with the Department of Correctional Services, testified at one of the hearings that Burns’ computer activity of “deviant and sadistic sexual preferences” could be relevant as a motive.
Part of his training included identifying offenses that could have a sexual motive. Some crimes may not be identified as sexual, such as burglary or assault, but could have a sexual motive nonetheless, he said.
Based on his experience and research from the Center for Sex Offender Management, a national clearinghouse for information and resources, Cole said, there can be a connection between searching deviant pornography and sexually abusive behavior.
Cole noted a theory that could support a possible motive in this case. The theory states that deviant fantasies — like sexually assaulting and killing a victim — encourage a person to act out. Such an offender stalks vulnerable targets usually at shopping malls, parking lots and schools, the theory holds.
First Assistant Linn County Attorney Nick Maybanks, in his argument, said Cole would testify in general terms to show a nexus between viewing sadistic pornography and sexually violent crime and about the research that demonstrates a motive to commit a violent assault that is sexual in nature.
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