MARIETTA - The Ohio Supreme Court heard oral arguments Tuesday in a Washington County case involving a local man found guilty of 29 child sex crimes who now hopes to get a new trial.
Marietta resident Daniel A. Keck II, 46, is serving a 70-year prison sentence in the Ross Correctional Institute in Chillicothe, after being found guilty in September 2009 on charges including three counts of rape against local boys.
Along with testimony from five victims who testified at Keck's trial and videos and photos of boys engaging in sexual acts at his home, the state also presented DNA evidence taken from Keck's bedroom. A forensic scientist said the evidence matched DNA profiles for Keck, one of the victims and an additional possible victim.
Daniel A. Keck II
However, Keck's attorneys are appealing the conviction on the grounds that only one of the two forensic experts who had a hand in compiling and matching Keck's DNA testified at the trial, denying Keck his constitutional right to confront one of the witnesses against him.
"DNA collection is testimonial evidence. (The DNA profile) essentially comprises one half of the DNA analysis done to match up the unknown with the known," argued Keck's attorney Nick Graman of Lebanon.
Mark Losko, a forensic scientist employed by the Ohio Bureau of Criminal Investigation, created a DNA profile for Keck based on a known sample that was collected from him.
However, it was Ohio BCI scientist Kristen Slaper who matched the unknown samples to the profile Losko created. Only Slaper testified at trial.
"Serious deficiencies have been found in the forensic evidence used in criminal trials," argued Graman, who added that Slaper's confidence in matching Keck's DNA was based on the assumption that Losko's profile was correct, something they cannot assume without questioning him.
However, Washington County Assistant Prosecutor Kevin Rings argued on behalf of the state Tuesday that Losko's creation of the DNA profile did not qualify as testimonial.
"He created a graph and that is all. He did no comparisons," argued Rings.
If the court rules that every expert who touches a piece of evidence is subject to examination, there's no logical stopping point, said Rings.
Chief Justice Maureen O'Connor pointed to a DNA data bank, where DNA is collected from certain arrested individuals for potential future use.
"Under your theory then, every technician that ever processed the original DNA swap would have to be brought in to testify in court?" she asked Graman.
Graman affirmed that was the opinion of the defense.
But Rings argued that would essentially invalidate the data bank, or even fingerprints, because there is no guarantee that the initial evidence gatherer would be able to testify years down the line.
Justice William M. O'Neill asked Rings if the guilty convictions would still stand if the DNA evidence was invalidated.
"There is more than sufficient evidence to support a conviction on all counts," said Rings.
However, Graman said he believes that Keck's case is winnable if they are given the chance to retry it, he said in an interview following the testimony Tuesday.
"Best case scenario in our opinion would be for the Ohio Supreme Court to remand the case back to the trial court on all charges," he said.
Before the Ohio Supreme Court agreed to hear the case, Keck's argument was rejected by the Fourth District Court of Appeals, which affirmed the decision of the trial court in Washington County.
Beyond the three rape charges, Keck was also found guilty on five counts of gross sexual imposition, two counts of kidnapping, 11 counts of illegal use of a minor in nudity-oriented material or performance, six counts of pandering sexually-oriented material involving a minor and two counts of pandering obscenity involving a minor.
The Ohio Supreme Court generally takes about three to six months to hand down a decision, said OSC public information officer Bret Crow. However, a decision can take more or less time depending on the case, he said.
If Keck loses his appeal, he has the option to appeal the case in the federal court system, said Graman.