MONICA LINDSTROM

Legally Speaking: Is DNA enough to find Hacienda suspect guilty?

Jan 25, 2019, 2:34 PM
(Pexels photo)...
(Pexels photo)
(Pexels photo)

Innocent until proven guilty. We need to remember that. We need to remember that even if there are reports that DNA evidence points to Nathan Sutherland as the Hacienda HealthCare rapist.  I know you are shaking your head and saying, “Monica, what are you thinking? DNA evidence is a lock.”

Well, it may not be and even if it is, the defendant could still walk. Let me explain.

What we know right now is that Nathan Sutherland, a 36-year-old licensed practical nurse, has been arrested and charged with sexual assault (rape) and vulnerable adult abuse of a 29-year-old woman in the Hacienda HealthCare facility.

A person is guilty of sexual assault under Arizona law if the prosecutor proves, beyond a reasonable doubt, that the person “intentionally or knowingly engaged in sexual intercourse…with any person without consent of such person.” A.R.S. 13-1406.

A person is guilty of vulnerable adult abuse under Arizona law if it is proven, again, beyond a reasonable doubt, that under circumstances likely to produce death or serious physical injury, the person causes a…vulnerable adult to suffer physical injury or, having the care or custody of a…vulnerable adult, who causes or permits the person or health of the…vulnerable adult to be injured…is guilty of a class 2 felony. A.R.S. 13-3623.

Each of these crimes carry a maximum of 14 years in prison based on the circumstances known to the public thus far.

DNA evidence was once a seldom used, elusive concept that was hard for the average, non-scientific, mind to wrap itself around. Advances in science, technology and the law have made the use of DNA evidence more affordable and thus more easily obtained and analyzed. However, it is still confusing and sometimes difficult for a trial lawyer to explain it to a jury and for jurors to understand.

Yes, DNA evidence is strong. It is about science after all, with little if anything left to subjective opinion. But, it is not infallible. Humans still have to collect (legally, of course), transport, keep safe, keep untainted, and analyze the evidence and then properly report the results.  There are a lot of links in that chain which means there are opportunities for reasonable doubt.

Sutherland’s attorney mentioned in the initial appearance that there is no direct evidence, and he is correct. From what has been disclosed, there are no pictures, no videos, and no witnesses to what his client allegedly did. It is also his job to start planting the seeds of reasonable doubt. Unless Sutherland pleads guilty in the next month, his defense team will go down the road of obtaining an independent analysis of the DNA to make sure the government did its job correctly. Granted, this may be a fruitless endeavor, but one that must be taken nevertheless.

Just like there may be additional charges filed in this case, there may also be other defenses. Although the police described the victim as being in a vegetative state, her family’s attorney said although she cannot speak, she has some ability to move her limbs, head and neck, responds to sound and is able to make facial gestures. If true, this could be the basis for the defense of consent. I know what you are thinking, but #LegallySpeaking, this could be enough to make one juror doubt the charges.

But what about the baby? Will Sutherland have parental rights if it is in fact proven he is the father? The answer is possibly. If he is the father and is convicted, the government and/or victim’s family will presumably go down the path of having his parental rights severed. If he is the father and is not convicted, his parental rights stay intact, unless he gives them up or is taken to court and loses.

#LegallySpeaking, there are still questions that need to be answered and the investigation is ongoing. That being said, a couple things are sure: health care facilities, their employees, and their procedures will be under the microscope with the probable loss of licenses and rights, and the Maricopa County Attorney’s Office (and other prosecuting agencies) will not go easy on defendants like Sutherland.

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Monica Lindstrom

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Legally Speaking: Is DNA enough to find Hacienda suspect guilty?