SPOKANE - DNA evidence that convicted rapist Kevin Coe said would exonerate him - evidence believed to be destroyed decades ago but recently discovered - could be used against him in his civil commitment case.
Assistant state attorneys general Todd Bowers and Malcolm Ross on Friday will ask Spokane County Superior Court Judge Kathleen O'Connor to order a cheek swab from Coe to compare his DNA to that of a semen sample taken by a hospital lab technician from a rape victim in 1980.
Tim Trageser, Coe's appointed defense attorney, has asked O'Connor to delay ruling on the DNA request and schedule another hearing so the state can explain why the cheek swab is needed.
The state contends it already has matched Coe's DNA profile to the semen sample, but needs the new swab to confirm the match. Coe's DNA profile is on file because he was convicted of a sex crime.
"I don't know why they need it again," Trageser said. "We need more time to address the issue. We will volunteer to do one if some of our questions can be answered."
Coe, 59, served 25 years for a rape conviction, but was not released when his sentence ended in September because the state wants to commit him as a sexually violent predator.
Friday's hearing also will determine the scope of psychological testing Coe will undergo before his scheduled July 16 civil commitment trial.
Prosecutors want Coe to undergo penile plethysmograph and sexual history polygraph testing in addition to a clinical interview with a psychologist and other tests. A plethysmograph measures erections when a person is shown sexually explicit images and other stimuli.
The DNA profile and psychological test results could be used against Coe in his civil trial, Bowers and Trageser said.
If convicted by an unanimous Spokane County jury, Coe would be sent indefinitely to the Special Commitment Center on McNeil Island near Tacoma for treatment as a sexually violent predator.
The semen sample and DNA request are problematic, Trageser said.
"It was found in an evidence room where none of Mr. Coe's evidence was stored," Trageser said. "How it made it to this one (room) is a mystery."
It was thought that semen samples from the South Hill Rapist trials in the early 1980s - before today's more sophisticated DNA testing existed - had been accidentally destroyed in the late 1980s.
Word of the discovery of the microscope slide sample came in a motion Bowers filed last week.
Coe has contended since the 1990s that new DNA tests of the missing trial evidence would exonerate him of the one rape charge on which he was convicted.
But Bowers said the sperm sample that survived on a microscope slide implicates Coe in that rape.
It was taken from a rape victim at Deaconess Medical Center on Oct. 23, 1980, by a lab technician. It was not "rape kit" evidence police typically obtain from hospitals in rape cases, but has been in a Spokane Police Department evidence freezer ever since, Bowers said.
Spokane police spokesman Cpl. Tom Lee said Thursday that anyone who would have been involved in the Coe cases is no longer with the department.
"I don't believe Coe evidence was ever handled differently than any other case. They have a specific set of procedures for all evidence that must be followed," Lee told The Associated Press by e-mail. "I do know that no one has asked to see Coe evidence for about 25 years. It just sat there among thousands of other items from thousands of cases."
Former Spokane County Prosecutor Donald Brockett, whose office prosecuted Coe's criminal cases, said last week he was surprised to learn a semen sample still existed.
That concerns Trageser.
"I'm naturally suspect, but I'm doubly suspect, considering Don Brockett reported he had conducted a thorough search" in the 1980s, Trageser said. "When he reported a thorough search was done, I believe him."
Even if Coe's DNA appears on the sample, prosecutors would have to prove it wasn't contaminated by proximity to other evidence from Coe's criminal trials, Trageser said.
Investigators arrested Coe early in 1981, and he was charged with six rapes stemming from the South Hill Rapist investigations, named after the Spokane neighborhood where the crimes occurred. A jury convicted him of four counts of rape.
Those convictions were overturned on appeal because Spokane police detectives used hypnosis during interviews with witnesses. A second jury convicted Coe of three rapes in 1985.
The state Supreme Court then overturned two of those convictions in 1988, leaving Coe with the single conviction for first-degree rape.