COLUMBUS, Ohio (AP) — The destruction of evidence ordered
in the case of the rape and killing of an expectant mother was likely
justified by harm that could occur if the material became public,
according to legal experts. That’s despite a move toward preserving more
evidence as a possible tool for exoneration, especially involving DNA.
At
issue are photos and audio and video recordings collected in the
investigation into the 2012 death of Deanna Ballman and her nearly
full-term child at the hands of a doctor convicted of killing her with a
heroin overdose.
Delaware County Judge Duncan Whitney approved a
prosecutor’s request late last year to destroy the evidence once the
case is wrapped up. The case is open while defendant Ali Salim appeals
his 36-year sentence and a wrongful death lawsuit against him proceeds.
The
evidence was obscene because its purpose was to arouse lust, assistant
Delaware County prosecutor Kyle Rohrer argued in a December court
filing.
"The dominant appeal of all the material is to the
prurient interest," Rohrer said. "It displays nudity in a way that tends
to represent human beings as mere objects of sexual appetite. Some of
the material further displays extreme and bizarre violence and cruelty."
The
material also violates Ohio voyeurism law, Rohrer said. That statute
prohibits individuals from spying on people or recording them "for the
purpose of sexually arousing or gratifying the person’s self."
Investigators
obtained videos of Salim assaulting a nude and unconscious Ballman,
along with photos of Ballman, Rohrer’s filing said.
Salim’s lawyer
didn’t oppose the destruction of the files, saying no one was arguing
the nature of the evidence. Instead, the issue is the effect of the
evidence on Salim’s sentence, which attorney Sam Shamansky argues is too
harsh.
"There’s no value to us in having that evidence maintained," Shamansky said.
Ohio
law requires that biological evidence be preserved forever in any
unsolved murder cases. The evidence has to be maintained for 30 years
for sexual crimes including rape and for killings that involve less
serious charges.
State law leaves the destruction of other types of evidence up to judges.
The
Ohio attorney general’s office has identified hundreds of DNA matches
in recent analyses of untested rape kits being submitted by
investigators around the state.
Preserving evidence in criminal
cases should be the norm, but the justifiable fear in a digital world of
the material being released must be considered, said Doug Berman, a law
professor at Ohio State University.
"You preserve any of this
stuff, who knows not only who get their hands on it, but who knows who
is eager to misuse this material for whatever potential criminal
purpose," he said.
There could be a concern down the road if Salim
were to argue his current attorney gave him bad advice, though that’s
hard to prove in cases involving a guilty plea, said Kevin McMunigal, a
Case Western University criminal law professor and former prosecutor.
"Since
both lawyers, prosecution and defense, have agreed to the destruction
and it won’t take place until after civil litigation is resolved it
seems uncontroversial," he said in an email.
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Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus.
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