Tuesday, April 4, 2006 • Defense plans expert DNA testimony at trial for 1988 murder

Publisher’s note: This story originally appeared in the Tuesday April 4 edition of the Lassen County Times.

When inmate Wayne Lee Bowen, 47, goes to trial set in June for a 1988 murder, the defense and prosecution may present dueling DNA experts.

Lassen County Superior Court Judge Stephen Bradbury set the estimated three-week trial to begin with jury selection at 10 a.m. on Monday, June 26. An estimated 15 witnesses may testify.

Bowen is charged with the July 1988 murder of Kevin Behm, 22, of New York.

Public Defender David Marcus announced his plans to have a DNA expert testify at the trial during a Wednesday, March 29 hearing on his motion to compel the prosecution to provide evidence to the defense.

At that hearing Maggy Krell, of the California Attorney General’s office, which is prosecuting Bowen, said the Department of Justice lab was unable to obtain a nuclear DNA analysis on a fragment of the victim’s skull tissue. The state cremated the rest of Behm’s remains in 1990, according to court records.

Krell said the DOJ lab in Richmond is attempting to obtain mitochondrial DNA and may have results as early as next week.

“Mitochondrial DNA is apparently a long and difficult process,” Krell told the court.

Nuclear DNA is contained within the nucleus of human cells, according to Wikepedia.org. In most cases it contains more of the person’s whole hereditary information than is encoded in the mitochondrial DNA, which is found in the parts of the cell that generate energy.

Bradbury ordered the two sides to work out an agreement to have the defense expert observe the DOJ process since Krell had no objection.

She also agreed to give Marcus copies of any information the prosecution has that would help the defense locate members of Bowen’s alleged burglary ring. The defense claims those witnesses can testify Bowen was somewhere else when the murder occurred.

Marcus said the nuclear DNA evidence “degraded to a point where it’s no longer testable,” because the evidence wasn’t properly stored. He added a blood sample submitted as prosecution evidence “is not even human blood,” and the lab could not confirm a hair sample was even male or human.

Despite the difficulties with the evidence, Marcus said, “I am setting a trial date because my client, in the meantime, is expiring.” Bowen was diagnosed in 1997 with Hepatitis B and C.

When considering a defendant’s right to a speedy trial and right to effective defense, Bradbury said he would give more weight to the right to effective defense. In January, Bradbury said he will reserve ruling on a motion to dismiss the case until he has sufficient factual evidence from the trial to determine if the 17-year delay made it impossible for Bowen to get a fair trial.

After Bowen was bound over to face trial in July, Prosecutor Dave Druliner said he could not comment on why it took so long to bring the case to court. The defense alleged the attorney general’s office only decided to prosecute the case because Bowen was soon to be released from prison.

Druliner said Bowen was brought to Susanville from state prison in Vacaville, where he was sent after he was convicted of solicitation for murder.

Druliner said Bowen and Behm were allegedly involved in a number of burglaries in Lassen County in July 1988 and had a falling out or conflict. At the March 29 hearing Krell said Druliner misspoke and the burglary ring actually operated in Reno, Nevada.

Bowen then allegedly took Behm to an isolated location on Eagle Lake Road, about a 1/4-mile north of the current Forest Service building, and shot him twice in the back of the head. Deer hunters found the remains just east of the road and reported them to the Sheriff’s Department at 7:30 p.m. Oct. 12, 1988, according to a press release issued at the time.

The press release said the remains were severely decomposed and investigators had to study the scene and evidence to identify the body.

At the preliminary hearing, Public Defender David Marcus disputed Behm, known as “the kid,” was murdered, saying, “His mom in New York thinks the kid’s still alive. She gets phone calls from him.”

Krell and Marcus will work out a date on which they can both be present when Behm’s mother makes a statement under oath, which may also be videotaped. The court will then hear arguments about whether the jury can hear all or part of her testimony. Marcus said she has four compressed vertebrae, may face surgery and cannot travel to Susanville to testify.

Bradbury also set a trial readiness conference for 1 p.m. on Friday, May 26, at which time he may also hear further motions.