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Defense says no incriminating DNA evidence in sex assault case

Posted: January 30, 2013 - 10:15pm  |  Updated: January 31, 2013 - 1:09am

Editor’s note: The following story contains a description of an alleged crime of a sexual nature. Readers are encouraged to use their own discretion when deciding whether to read this article.

The defense attorney for a man accused of sexually assaulting a woman while she slept says there’s no incriminating DNA evidence in the case.

The case against Frank W. Lee, 60, has not yet gone to trial — it’s slated for June — but a series of recent pretrial hearings has provided a glimpse into arguments that will likely be made.

Public Defender Eric Hedland said in court on Tuesday that he received a lab report from the state on Monday which indicated Lee’s saliva was not found on the alleged victim.

“We think that’s exculpatory,” Hedland told Juneau Superior Court Judge Louis Menendez.

Prosecutors say Lee digitally penetrated a 22-year-old woman as she was sleeping over at Lee’s house after his 60th birthday celebration the night of Sept. 10, 2012. He is also alleged to have made oral contact with her genitals without her knowledge as she slept, and that he continued to do so when she woke up, without her consent.

Lee also submitted fingernail scrapings to be tested, but there were not enough scrapings for a full DNA profile to be conclusive, the report said, according to Hedland.

Assistant District Attorney Amy Williams says there were two other witnesses in the room — the woman was sleeping on a bed with her son, and her friend was also in the room — and that Lee admitted the acts during a later phone call that was being recorded by police.

Williams did not comment on the DNA evidence during Tuesday’s hearing, telling the judge that was not the purpose of the hearing, which was called to resolve a pending motion regarding the crime lab evidence, since deemed moot.

“We’re not litigating,” Williams said. “I don’t think it matters for the purposes of today what the DNA results are.”

Hedland says the lab report is “remarkably” favorable to his client since the police were called shortly after the incident was alleged to have occurred and that the swabs were taken within two hours of the report.

“I will be eagerly looking for to see if there are any empirical studies on whether saliva can disappear in two hours without any washing, but my expert said — I think he would say — nobody would test that because it’s so probably within the purview of common sense that we expect DNA to be there,” Hedland said.

Hedland said this means the state’s case hinges on “a drunken phone call.” He said he intends to request another bail hearing in light of the new evidence, since Lee’s previous request to reduce bail was denied.

“This is, if nothing else, consistent of the state’s case not being very good,” Hedland said, describing the lab report as “completely exonerating.”

Lee was arrested in September after he was indicted by a Juneau grand jury on one count of first-degree sex assault, which is an unclassified felony that can carry up to 99 years in prison, and two counts of second-degree sex assault, which are class ‘B’ felonies. He is being held at Lemon Creek Correctional Center in lieu of $100,000 cash performance bond.

Williams said previously in hearings that Lee knew the alleged victim, and that police reports indicated Lee has been “grooming” her since the age of 18. Grooming is a term used to describe the actions offenders use to draw victims, either child or adults, into physical relationships to allow for abusive behavior.

Lee has approximately 10 prior criminal convictions for a variety of crimes, ranging from weapons misconduct, drug misconduct, trespassing and assault, Williams said.

Another pretrial motion in the case is still pending, regarding the disclosure of prior police contacts the alleged victim may have had with police. Hedland says he made that request after witnesses told him the woman has made false allegations of sexual assault in the past. Hedland is also seeking the woman’s phone and text records after a grand juror apparently overheard her say on the phone that, “In order to get rid of someone that you don’t want to have around, just accuse them of rape, testify to a grand jury, and it’s done and over with,” according to Hedland’s motion.

Menendez said he is still researching issues related to the discovery motions, but that he will make a ruling soon.

He told attorneys, “Something will be coming your way.”

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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