MICHELLE MARTINKO

Jerry Burns testifies he wanted lawyer when police asked for his DNA in Martinko killing

But murder defendant acknowledges he kept talking with police before his arrest

Defendant Jerry Burns answers a question from First Assistant Linn County Attorney Nick Maybanks during an evidence supp
Defendant Jerry Burns answers a question from First Assistant Linn County Attorney Nick Maybanks during an evidence suppression hearing at the Linn County Courthouse in Cedar Rapids, Iowa, on Friday, Jan. 24, 2020. Burns is charged with first-degree murder in the stabbing death of Michelle Martinko in 1979. (Jim Slosiarek/The Gazette)
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CEDAR RAPIDS — Jerry Burns, who is seeking to have key evidence against him kept out of his upcoming murder trial, testified Friday he told investigators he should have a lawyer when they pressed him on why his blood was found at the scene where 18-year-old Michelle Martinko was fatally stabbed in 1979.

Burns, 66, said he knew after the police interview started Dec. 19, 2018, in his Manchester business that the two Cedar Rapids investigators already thought he was involved in the cold-case killing. They started asking him to provide a DNA sample.

When Investigator Matthew Denlinger asked him to explain why his DNA profile was at the crime scene, Burns said he replied, “not without a lawyer.”

“I didn’t know how to ask” for lawyer, Burns testified. The investigators seemed to ignore his request and continue to ask questions, he added.

He said he just wanted the questioning to stop but “tried to cooperate.”

Burns, charged with first-degree murder in the 1979 death of Martinko in a parking lot of the Westdale Mall, is asking the court to suppress his statements to police and DNA and other evidence, asserting they were obtained without a warrant and were violations of his privacy.

His defense also is asking the court to toss out computer evidence of “deviant” pornography and website activity, focusing on sexual assault and killing of blonde women. Burns’ lawyer, in a motion, argued the computer history search is irrelevant because it’s from 2018 — 38 years after Martinko’s death.

The hearing, which stretched over three days, wrapped up Friday. Sixth Judicial District Judge Fae Hoover said she would accept written arguments and supporting documents from the defense and prosecution and then make a ruling as soon as possible. The trial currently s set to start Feb. 10.

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Defense attorney Leon Spies asked Burns if he ever submitted his DNA profile to any public ancestry service or if he knew if any of his family members who did.

Burns said no.

Spies asked if he consented to let investigators collect the drinking straw he discarded after eating at the Pizza Ranch on Oct. 29, 2018, in Manchester.

Burns said no.

Denlinger, in earlier testimony, said he covertly obtained Burns’ DNA from the straw left on a table after Burns and his son left the restaurant that day.

Denlinger also explained how using a public genealogy database — called GEDmatch — led to a small pool of suspects, with Burns being identified specifically through that straw as being a match to the DNA evidence found on Martinko’s dress and gearshift of her car, where her body was found.

On cross examination, First Assistant Linn County Attorney Nick Maybanks asked Burns if he expressed any concern in April or May 2018 about privacy issues over DNA or if he was aware that a distant cousin, Brandy Jennings, submitted DNA to a public genealogy database.

Burns said no — it never occurred to him at the time.

Maybanks asked if he keeps his drinking straw after eating out or does he ask staff to do something to protect it.

Burns said no — he usually leaves it there for disposal.

Maybanks asked if investigators had let him use his phone during interview and had asked if he had to go back to work at — that we was free to leave.

Burns agreed he was. He also admitted to continuing to answering the police questions

Burns said he didn’t know how his DNA was found at the crime scene. He repeatedly told the investigators to “test it.”

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Burns said he thought the investigators would tell him his options when he asked about a lawyer. He didn’t have experience with being arrested.

In earlier testimony, Randy Cole, a sex offender assessment and treatment consultant with more than 30 years of experience with the Department of Correctional services, testified that evidence found on Burns’ computer of his “deviant and sadistic sexual preferences” could be relevant as a possible motive.

Part of his training includes identifying offenses that could have a sexual motive. Some crimes may not be identified as sexual, such as a burglary or assault, but could have a sexual motive, Cole 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 nexus 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 — encourages a person to fulfill the fantasy. Over 60 percent of people who commit sexual offenses had sexual fantasies within a year of committing the crime, based on research, he said.

The offender stalks vulnerable targets usually at shopping malls, parking lots and schools, according to the theory. The goal is find someone unprotected and alone.

This leads to a “blitz” attack, or some ruse with a surprise element on the unsuspecting victim. Cole said. Evidence showed Martinko had defensive wounds, he pointed out.

On cross, Spies grilled Cole about the fact that his experience dealt with sex offenders who had already been convicted — having the benefit of presentencing reports and their history.

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Cole admitted he never met Burns or talked to him, and didn’t have any background on him besides reports about the computer evidence and what the investigators had told him.

Comments: (319) 398-8318; trish.mehaffey@thegazette.com

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