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Judge: Hair found in former Grand Forks teacher-student sex case will be tested

A judge said hair found in the vehicle of a former Grand Forks teacher accused of having sex with a student must be tested, but how and where was left up undecided Friday.

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A judge said hair found in the vehicle of a former Grand Forks teacher accused of having sex with a student must be tested, but how and where was left up undecided Friday.

James Patrick Whalen, 41, sat quietly during a hearing at Grand Forks District Court as his attorney, Robert Hoy, argued the prosecution should not test hair found in Whalen's Ford Expedition at the North Dakota Crime Laboratory because it would prevent the defense from conducting its own tests and extractions of the hair.

"What (the state) suggests is that the defense should just be happy that they get a report from the state lab and we can ask (a forensic scientist) whether she followed their procedure, did you do it right and are you sure?" Hoy said. "That limited cross-examination is entirely inadequate to protect someone from a test could be wrong for some reason or another."

Whalen faces three counts of corruption or solicitation of minors and one charge of sexual assault, all felonies, after police said he had a sexual relationship with a student between the ages of 16 and 18 this winter. Court documents detailed several alleged sexual encounters, including at Grand Forks Central High School, where Whalen taught biology before resigning March 1, at his home, Kellys Slough Wildlife Refuge near Grand Forks Air Force Base and near Crookston.

Whalen also faces one count of third-degree criminal sexual conduct, a felony, in Polk County District Court. His first appearance on the Minnesota charge is Tuesday in Crookston.

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In North Dakota, eight hairs found on blankets in Whalen's vehicle are awaiting testing at the state lab. Emily Verstraete, a forensic scientist with the state's crime lab division, testified Friday that DNA comes from the roots, adding there is no way to split the hair for multiple tests. The samples resulting from the hair roots being extracted can be retested, but the test would consume the root, meaning the DNA could not be extracted a second time, she said.

"We don't have two bites at the apple. We have one," said prosecuting attorney Haley Wamstad, a Grand Forks County assistant state's attorney.

The state would prefer to test all eight hair samples since there is no guarantee the roots came from the same person, Verstraete said.

Outside experts are not allowed to watch tests conducted at the state lab, nor can the tests be recorded on video, she testified.

Wamstad argued the tests are not prejudice toward Whalen because no one knows to whom the hairs belong, adding it could hurt the state's case as much as the defense's.

The state has offered several options to the defense, Wamstad said, including sharing the cost of independent lab testing.

"It sounds to the state as if the defendant simply doesn't want these hairs tested," she said. "I think it is in the interest of justice, and it is very important to this case, that these hairs are tested."

Hoy said he was fine with utilizing an independent lab at the state's cost. There are labs that conduct other tests for hair, and it's possible they may not require the samples be completely consumed, but the prosecution and Verstraete said they are unaware of any labs capable of doing that.

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Hoy cited cases in which defendants from across the country were convicted based on erroneous testimony from the FBI crime experts. In a U.S. Department of Justice investigation of DNA testing conducted before 2000, agencies found 257 cases in which erroneous testimony regarding hair sample testing resulted in the conviction of defendants, 33 of whom ended up on death row.

"I don't want Mr. Whalen to get into that situation," Hoy said. "I'd prefer if we are going to do this, let's get it right."

Judge John Thelen gave Hoy a chance to find a lab that could conduct the tests while saving part of the root so both the state and the defense could conduct their own tests. The defense expects it could take a week to 10 days to find a lab that meets the court's orders, including approval from the prosecution, Hoy said.

If that's not possible, Thelen said the two parties would have to find an independent lab to test the hairs. If that fails, he would order the prosecution to conduct the tests at the state lab.

Thelen also was expected to rule on whether the defense would be allowed to interview Whalen's accuser, the student. The state has argued the victim has gone through hours of interviews and the court should protect the victim from repeated interviews that could result in trauma. In a response filed earlier this week, the defense argued blocking its deposition of the victim would violate Whalen's rights, adding Hoy has not had the chance to interview the student and an action can't be repeated if it hasn't happened yet.

Thelen granted the prosecution additional time to respond to the defense's argument. A hearing to decide on the state's motion to quash the defense's subpoena of the victim for deposition is set for Aug. 18.

Related Topics: CENTRAL HIGH SCHOOL
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