“It’s the kind of evidence, much like all the biological evidence that’s collected, if you don’t get it at the time it’s available you’re never going to get another opportunity to collect it,” said Denver District Attorney Mitch Morrissey.
Gabino Otero-Labra, now 30, faces two counts of sexual assault on a child in the wake of the alleged attack, which occurred at a North Denver home.
Otero-Labra, who was arrested in November after he was required to provide a DNA sample following a Minnesota drug conviction, is being held on $100,000 bail and is due back in Denver County Court Feb. 4.
At the time of the alleged assault, Otero-Labra was 24.
And while collecting a fetus to be used as evidence is not unheard of, it was still a first for one veteran Denver attorney.
“I’ve never seen it before,” said defense attorney Dan Recht, who has handled more sexual assault cases than he can remember. “It’s certainly unusual. And in the same breath let me say I don’t believe there’s anything inappropriate about it.
“It will help the police and the prosecution establish who the father is through DNA, and so it seems reasonable to me even though it seems highly unusual.”
The story begins in late March 2010 when the girl made up a story about where she planned to spend the weekend and instead went with a friend to a home in the 3900 block of Kalamath Street. While they were there, the girl later told police, she drank orange soda that “tasted funny,” according to court documents. At some point, she passed out on a staircase before later awakening in a bed and concluding that she had been sexually assaulted.
Her mother took her to a hospital, and a rape kit led to a DNA profile of a suspect.
Within weeks, the girl learned she was pregnant and she ultimately decided to have an abortion at a Denver Planned Parenthood clinic. After the procedure, according to court documents, a Denver detective went to the clinic and obtained the fetus, which was frozen for later testing at the department’s crime lab.
Marie Logsden, senior vice president of Planned Parenthood of the Rocky Mountains, declined to be interviewed by 9NEWS but issued a statement in response to questions from 9Wants To Know:
“While we cannot comment on specific cases, at times, law enforcement officials ask for our assistance in their investigations of sexual assaults. This can include preserving the products of conception that result from an abortion procedure.”
Although detectives had the first name of a potential suspect and a DNA profile obtained from the rape kit, they did not know with certainty who they were looking for until earlier this fall. That’s when Otero-Labra had his DNA entered into a national database after being convicted in a Minnesota drug case. Once his sentence was completed there, he was transferred to Denver to face charges in the 2010 sexual assault.
Meanwhile, the fetus remains frozen in the Denver police evidence vault, awaiting testing. The DNA that it could yield once it is tested could make or break the case, said Denver District Attorney Mitch Morrissey.
“We’re looking for sources of DNA from our suspect, sometimes from the victim,” Morrissey said. “Obviously when you’re talking about the offspring or a fetus, you’re talking about DNA from both, potentially. So it’s important evidence to be collected.”
So, just how often does a detective attempt to obtain an intact fetus – as opposed to fetal tissue – for use as evidence in a sexual assault case?
The Denver Police Department currently has three fetuses in its evidence vault, said Division Chief Matt Murray. To put that in perspective, the department has more than 500,000 individual pieces of evidence in its vault.
Murray called it “an incredibly rare occurrence.”
A 9Wants To Know check with area law enforcement agencies did not find another case in which a fetus was taken as evidence.
And it’s equally rare for that kind of evidence to find its way into a courtroom.
Lynn Kimbrough, the spokeswoman for Morrissey’s office, said she knew of one other instance in which fetal tissue was used as evidence in a sexual assault case. In that case, a man was accused of sexually assaulting a teenager and getting her pregnant. She, too, had an abortion, and fetal tissue was used in an effort to establish that the suspect was responsible.
However, the man was acquitted after questions arose about the actual age of the victim – she was from another country and documents differed on her birthdate.
Recht, the defense attorney, said that DNA evidence can be critical to prosecutors and suspects alike.
“Absolutely,” Recht said. “You know, DNA evidence gets to the heart of who did a crime, and so it is good for the innocent because it shows they didn’t do it, and it’s good for the police when they have the right suspect because DNA generally doesn’t lie.”
He said he saw no reason why DNA taken from the fetus wouldn’t be admissible if the case goes to trial.
Morrissey pointed out that state law requires that DNA be kept for the life of the suspect in sexual assault cases but said he hopes to work out an agreement with the defense that would allow for a respectful disposal of the fetus.
“Obviously, this kind of sample really pulls on people’s hearts for a lot of different reasons when you’re talking about a fetus,” Morrissey said. “But it is something that hopefully, at the end of the case, we can come to an agreement with the defense that a sample would be kept, but just a sample. And then we’d have a cremation – that type of thing for the fetus.”