Prosecutors can collect more DNA, fingerprints and photographs of East Area Rapist suspect Joseph James DeAngelo, Sacramento Superior Court Judge Michael Sweet ruled Thursday.
“I’m not going to stop the execution of the search warrant,” Sweet said, declaring that such evidence is routinely taken any time a suspect is booked.
The judge did not address the specific request to photograph DeAngelo’s penis, but said the search warrant signed last week by Superior Court Judge Steve White was a legal order and that suspects typically can be required to provide evidence.
He noted that suspects can be required to appear in lineups, provide handwriting samples or give blood samples.
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Sweet noted that defendants cannot be compelled to incriminate themselves through testimony or other means under the Fifth Amendment to the U.S. Constitution, but that the physical evidence sought does not fall under that protection.
“There is no Fifth Amendment privilege I can see,” Sweet said.
DeAngelo’s public defenders had argued that prosecutors essentially were asking the defendant to incriminate himself by being photographed and providing his DNA and fingerprints.
“What the District Attorney seeks to do is seek evidence from a client without input from defense counsel,” public defender David Lynch argued.
Deputy District Attorney Thienvu Ho disagreed.
“They can dress it up any way they like,” Ho said. “At the end of the day, they are challenging a lawful search warrant signed by a neutral magistrate.”
Thursday's hearing stemmed from a motion filed by DeAngelo's public defender, Diane Howard, to block a search warrant prosecutors sought to collect more evidence, including photos of his penis.
Court papers do not spell out why such photos are needed, but during the East Area Rapist's crime spree in Sacramento from 1976 into the 1980s he is suspected of dozens of rapes, and law enforcement at the time suggested that the suspect was not well endowed physically.
Prosecutors argued in court papers that their efforts to collect more evidence would not interfere with his right to a fair trial and that he would not have to speak to them as they collected information. They sought to execute the warrant at 1 p.m. Wednesday, but held off pending the decision by Sweet.
Howard was swarmed by reporters as she left Sweet's courtroom but offered little, saying only that her office is "trying to get (DeAngelo) a vigorous defense."
Howard declined to comment on Sweet's ruling, and Ho also remained mum as he walked back to the District Attorney's downtown offices with co-counsel Amy Holliday.
"The arguments we made in court represent our position," Ho said.
DeAngelo was arrested after four decades of mystery because of DNA evidence found at murder scenes and entered into an open source genealogical website that authorities say eventually led them to him. Prosecutors have not said why they were seeking additional DNA samples.
DeAngelo, 72, was making his third court appearance since Friday and is expected ultimately to face 12 murder counts connected to slayings in Sacramento, Orange, Santa Barbara and Ventura counties in the 1970s and 1980s.
He faces two murder counts in Sacramento in the Feb. 2, 1978, slayings of Brian and Katie Maggiore, a young couple chased and shot to death in Rancho Cordova while they were walking their dog.
For the third consecutive appearance, DeAngelo was wheeled into court in a wheelchair, with his arms handcuffed to the armrests. He stared blankly at the courtroom audience, filled with media and onlookers, but said nothing during the brief hearing.