Judge allows DNA evidence in Sean Luke murder trial

Deoxyribonucleic acid (DNA) evidence will form part of the prosecution’s case against the two men indicted for the murder of six-year-old Sean Luke in 2006.

Opposition to the admission of the DNA evidence came from one of the men charged with the boy’s murder in the form of a motion to stay the indictment against him because of the delay by the State to disclose the evidence, but this was shot down by the judge presiding over the trial.

On Wednesday, Justice Lisa Ramsumair-Hinds ruled she did not agree that Akeel Mitchell would not receive a fair trial as his attorneys had argued on Monday. Mitchell’s co-accused, Richard Chatoo did not object to the evidence being led.

She pointed to the timeline given by senior prosecutor Sabrina Dougdeen-Jaglal in resisting the motion on Monday, saying pertinent disclosure was made to the defence before the trial had started on April 19.

Ramsumair-Hinds said when the trial started, there was nothing on evidence against Mitchell and although a notice of fresh evidence was filed by the State on April 21, to get permission to lead the DNA evidence, Mitchell’s defence team in questioning the first rash of witnesses, did not cross-examine in a way that would support their contention that they were unable to properly put their client’s defence to those witnesses.

She said fresh DNA samples were taken from Mitchell and Chatoo at the prison but Mitchell’s defence of an alibi, did not change.

She said the criminal proceedings rules applied to both sides – the defence had complained that the DNA evidence came more than a decade after samples were taken from Luke- and pointed out that Mitchell’s notice of alibi was only given 13 years after he was put on notice in 2008 by the magistrate who conducted the preliminary inquiry into the child’s murder.

“The DPP was entitled to those particulars in ten days to disprove once alibi was raised. Thirteen years elapsed on an obligation that required ten days,” the judge said.

She also said in a perfect world, and the utopia many hope to see in the criminal justice system, the exhibits would have been tested for DNA before the preliminary inquiry ended.

However, she said, the practice currently plaguing the system of lengthy delays in analysing exhibits must change “if the criminal justice landscape has to improve.”

“If I give the impression I am happy with the state of affairs where exhibits taken in 2006 are only tested in 2021. I am not. That is atrocious,” she said, but acknowledged that the Director of Public Prosecutions did not control his own purse and the outfitting of forensic capabilities of the State was a function of the Executive.

She said it was common place for the defence to find holes in the prosecution’s case, as is its right, but said often the absence of evidence affected both sides since DNA evidence can either incriminate, exonerate an accused or remain as neutral evidence in a case.

This was Mitchell’s second motion to stay the indictment. He also filed a motion to quash the indictment and those two were previously dismissed by the judge.

After giving her ruling, acting Sgt Rajesh Radhaykissoon, of the Homicide Region 3 department, who took over the case as the complainant at the start of the year, testified to what he did when he was appointed.

During his testimony, exhibits of soil and grass samples, Luke’s underwear and short pants he was last wearing, a cane stalk, a baseball cap and sneakers, anal and penile swabs taken from Luke’s body, the child’s fingernail clippings and blood samples taken from Luke and Chatoo were admitted into evidence.

He was also present when buccal swabs – samples taken from the inside of someone’s cheeks – were taken from Mitchell and Chatoo at the prison in March for fresh DNA analysis.

He also handed over the exhibits to laboratory director of the Caribbean Forensic Service (CFS) laboratory which was given permission in January to do DNA testing for the State.

Radhaykissoon denied Mitchell was provoked into giving the sample. He testified Mitchell, at first, said he did not want to give the sample but after ASP Dilpaul – head of the Homicide Region 3 division- who accompanied the complainant to the prison, told him it could be taken without his consent and could confirm or disprove evidence already obtained, he agreed to give it.

Chatoo agreed to the buccal swab being taken. Radhaykisson said there was no interference with the samples and there was no contamination of the evidence with exhibits in the case, before it was handed over to the private lab for DNA testing

Also testifying was scientific officer at the Forensic Science Centre, Camille Grant, who said she specialised in body fluid and DNA analysis.

Although she performed two tests on Luke’s underpants and short pants, and found human spermatozoa and blood on them, she said she was given the case file in 2014, when deputy director of the FSC, Emmanuel Walker, retired.

She was questioned about the storage conditions for exhibits at the FSC and said she verified the results taken from the exhibits submitted in the case by looking at the work sheets and the items themselves.

Grant provided an explanation on the examination done to identify human spermatozoa. However, she admitted the spermatozoa found was not of good quality and was classified as one-plus, meaning just over two sperm heads were found on the item of clothing.

She said the FSC did not do any DNA testing in Luke’s case, admitting also if the exhibits were tested in 2021, human sperm might not be detected because what was found initially was of low grading and, with the passage of time, degradation can take place which would create a scenario of no sperm being present.

Grant was asked about the machines at the FSC at the time to test for DNA, and admitting they had a genetic analyser and a thermocycler since 2002, and more now, they were not working as they were not calibrated or serviced.

She also said the FSC routinely began doing DNA testing in 2009, and in the Luke’s case, the only request for DNA testing was made in 2018.

Grant returns on Friday to complete her evidence after which laboratory director of the CFS, Dr Maurice Aboud, is expected to testify.

A decision is expected to be taken on the testimony of some of the police officers who gave evidence at the pre-trial challenge to evidence stage as already the evidence of some of witnesses have been incorporated into the main trial, such as that of a former police officer who gave his evidence from the cab of his truck while parked on the side of a roadway in the United States.

Luke had been sodomised with a sugar cane stalk that ruptured his intestines and internal organs. He died from internal bleeding.

Mitchell and Chatoo, who were teenagers when they were arrested and charged for the boy’s murder, are represented by attorneys Mario Merritt, Evans Welch, Kirby Joseph, Randall Raphael, Kelston Pope and Gabriel Hernandez. State attorneys Anju Bhola and Sophia Sandy-Smith are also prosecuting.