MICHELLE MARTINKO

Jerry Burns wants court to toss DNA evidence linking him to Michelle Martinko killing

Defense lawyer argues it was obtained without warrant

Jerry Burns appears Oct. 21 in Linn County District Court with defense attorney Leon Spies to waive his right to a speed
Jerry Burns appears Oct. 21 in Linn County District Court with defense attorney Leon Spies to waive his right to a speedy trial. Burns is charged with first-degree murder in the 1979 death of Michelle Martinko. (Liz Martin/The Gazette)

CEDAR RAPIDS — A Manchester man wants a judge to toss out the key DNA evidence that authorities say links him to a 40-year-old murder — the fatal stabbing of 18-year-old Michelle Martinko in 1979.

Leon Spies, defense attorney for Jerry Burns, 65, charged with first-degree murder, in a motion filed this week said authorities didn’t have a warrant when they allowed a private company called Parabon-NanoLabs, in Reston, VA., to upload a DNA profile that was developed from blood stains on Martinko’s dress and the gearshift of her car to the public genealogy database GEDmatch.

The results from that comparison led to Brandy Jennings of Vancouver, Wash., who “was hypothesized to be relative of suspect,” Spies wrote in the motion. Investigators then focused on a branch of the family tree including relatives of the man they eventually arrested — Burns.

On Aug. 16, 2018, investigators obtained DNA from Burns’ first cousin and later from his brothers. The samples were submitted to Parabon, which provides DNA phenotyping services to law enforcement.

Spies argued the warrantless seizure and search of the biologic specimens and DNA from Burns’ brothers and other relatives violated his “legitimate expectation of privacy in familial DNA,” including what existed in genealogic databases.

This also violated his rights from unreasonable searches and seizures, as guaranteed by the U.S. and Iowa Constitutions, Spies said.

The defense also argues the DNA evidence covertly collected from a drinking straw Burns used to sip soda at a restaurant on Oct. 29, 2018, should also be tossed because it was a warrantless seizure and search.

Spies also is asking the court to keep out statements made by Burns during a Dec. 19, 2018, police interrogation when he was arrested.

Spies argued Burns was in custody for the interrogation, and any statements he made there were in violation of his rights against self-incrimination and of having a lawyer present.

In a Dec. 19, 2018, interview with police, Burns denied knowing Martinko or being at the crime scene, according to criminal complaint.

Any evidence taken from Burns’ cellphone, which he had during the law enforcement interview, and his home and office computers would be a violation of his right against unreasonable searches and seizures, according to the motion.

A search warrant affidavit filed in February and obtained by The Gazette revealed that activity on Burns’ office computer included searches for “blonde females, assault, rape, strangulation, murder, abuse and rape of a deceased individual and cannibalism.”

Spies also wants kept from trial a prosecution’s expert witness testimony about his evaluation of Burns’ internet searches and web activity taken from his computers. This testimony is a result of the searches and seizures of the computers and therefore “tainted by the illegality of those searches and seizures.”

In a second motion, Spies argued evidence taken from Burns’ cellphone and office computer, which includes his internet search history, web browsing and download activity conducted more than 38 years after Martinko’s death, is “irrelevant and that its relevance, if any, is far exceeded by the likelihood of unduly prejudicing the defendant.”

Spies asked for a hearing before trial to determine if this evidence will be allowed before a jury.

First Assistant Linn County Attorney Nick Maybanks, as of Friday, hasn’t filed his response to the motions.

Sixth Judicial District Judge Fae Hoover recently granted the defense’s motion to move the trial to Scott County on Feb. 4 because of extensive pretrial publicity.

According to the February search warrant affidavit, DNA from two distant cousins, when compared with DNA from the crime scene, led to Burns and his brothers as possible matches.

His brothers were eliminated. But Burns’ DNA — collected from a soda straw by an investigator in October 2018 without his knowledge — was a match, the document shows.

According to another warrant from Dec. 19, authorities believe Burns may have cut himself during the 1979 attack.

A bloodstain on the back of Martinko’s dress matched Burns’ DNA, so it’s “logical to assume” his blood got on her dress from being cut “while he was stabbing her,” Cedar Rapids police investigator Matthew Denlinger stated in the affidavit.

The DNA on the public genealogy website came from a distant cousin, Jennings, 40, who told The Gazette in March she had forgotten about uploading her DNA profile there.

Jennings was mentioned in the Feb. 5 warrant but said she was never contacted by police. She said she doesn’t know Burns or any of his family members and has no ties to Iowa.

Martinko was found stabbed to death in her family’s Buick on Dec. 19, 1979, in a parking lot of Westdale Mall. The high school senior had left a choir banquet and driven to the mall to buy a winter coat. Her body was found the next day. Comments: (319) 398-8318; trish.mehaffey@thegazette.com

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