Jerry Burns defense calls one witness, rests its case after testimony from self-defined forensic DNA consultant

Leon Spies (left) questions Dr. Michael Spence (right) at the first-degree murder trial for...
Leon Spies (left) questions Dr. Michael Spence (right) at the first-degree murder trial for Jerry Burns at the Scott County Courthouse on Thursday, Feb. 20, 2020. Spence served as the only witness called by the defense in this case. (Pool)(KCRG)
Published: Feb. 20, 2020 at 5:43 PM CST
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The defense for the man accused of killing a Cedar Rapids teenager more than 40 years ago called only one witness today before resting their case.

66-year-old Jerry Burns is accused of killing then 18-year-old Michelle Martinko outside the Westdale Mall in Cedar Rapids.

On Thursday, his attorney Leon Spies called a self-described forensic DNA consultant, Dr. Michael Spence, who says there is a possibility that the evidence that had Burns' DNA on it was mishandled by law enforcement, and it's within the "realm of possibilities" that Burns' DNA ended up at the alleged crime scene through a secondary DNA transfer.

Spence has heard instructions from the court plenty of times before. According to his website, he is a self-defined forensic DNA consultant who has testified for defense teams for more than a decade.

Spence said he watched the testimony from days prior with Linda Sawer, a former criminalist at the crime lab with the Iowa Division of Criminal Investigation. She was asked about the possibility of DNA rubbing off and transferring from clothing if that clothing is dry.

Spence directed his comments squarely at her testimony, where she said the DNA would not transfer.

"That's clearly not correct," Spence said. "Their ability to detect things, even back in the early 2000s, was at a point when, no, dry transfer of DNA has been established through research and through looking at casework."

Spence says DNA could appear on a crime scene from a secondary transfer. Some examples include skin cells clinging on to clothing, or in simple terms, even using the same glass at a restaurant.

The one thing Spence did not argue: it was Burns' DNA that can absolutely connect him to the scene of the crime. He argues because of the potential contamination from bagging Martinko's clothing all in the same bag for decades, there could be some cause for concern.

"Things shouldn't be packaged in that way, they should be separated out," Spence said. "And if something is packaged of course in 1960 or 1979, people weren't aware who were working scenes that the prominence that DNA was going to gain over the next few decades."

Spence says the best way to leave no doubt: Martinko's clothes should have been stored separately.

"I think that you need to separate out the items as early as you possibly can," Spence said. "I can understand why law enforcement officers in 1979 might not have thought of that, but as we've developed the testing methods, and as soon as it was noted that all these items were bundled together, they should have been un-bundled and put into separate packages. It's vital to do that."'

But prosecutors, led by Assistant Linn County Attorney Nick Maybanks, wanted clarification on Spence's testimony.

"So you're not testifying in this case that it's your opinion that the way Jerry Burns' DNA got on her dress was through a secondary transfer," Maybanks asked Spence.

"No, I'm not testifying to that," Spence replied.

Maybanks asked if within the realm of possibilities, how Burns' DNA could have gotten on Martinko's dress.

"Let's say this individual is on top of her holding her down," Maybanks said. "You have a pretty good chance of having his DNA on her, right?"

"Oh, on various parts I would be shocked if their DNA wasn't, at least in some places, yes," Spence said.

But Spies doubted it was as black-and-white as the prosecution believes.

"Is it, Dr. Spence, a plausible explanation that the DNA of Jerry Burns found on the dress or on the gear shift could have come about by a transfer?" Spies asked Spence.

"Yes, that's a distinct possibility," Spence replied.

After Spence finished his testimony, Burns said he would not testify on his own behalf. That leaves the prosecution to make rebuttal arguments starting on Friday at 9 a.m. at the Scott County Courthouse when the trial resumes.