WAILUKU, MAUI (HawaiiNewsNow) - Just days before the murder case against Steven Capobianco was expected to start on Maui, a judge has ruled that prosecutors may not use DNA evidence against him.
"It's really unfortunate," said attorney Victor Bakke who has been either a prosecutor or a defense attorney for the past 23 years,
Lawyers claimed they found a hair from Capobianco on his jeans with his ex-girlfriend, Charli Scott's blood on it. Prosecutors presented the evidence right before the trial was set to begin, but the judge ruled that it was too late.
Bakke said for a judge to throw out such a key piece of evidence is unusual.
"In most cases where this issue comes up, the judge will cure it by allowing a continuance. So even if neither side wants a continuance, the law says that usually it can be cured by a continuance. So if we can put the trial off for a week or two or three or four, then that's what should be done," Bakke said.
Bakke said the defendant's right to a speedy trial should not matter under these circumstances.
"We're not in any rush to justice. Sometimes this takes time and if the defect can be cured by a continuance, then you do so," he said.
Prosecutors said a detective took a second look at Capobianco's jeans this past January and discovered a hair follicle.
In February, it was sent to Quantico, Virginia to be examined in an FBI laboratory. The detective received the report in March and sent it to prosecutors in May, just days before jury selection was schedule to begin.
The defense argued it was too late for evidence to be allowed, and Judge Cardoza agreed.
Capobianco is accused of killing Scott who was five-months pregnant with his child when she disappeared two years ago. He was charged with second-degree murder and arson after police found a piece of Scott's jawbone in July 2014.