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6:39 AM Sat, Nov. 17th

Appellate decision on DNA may hand defendant freedom

PRESCOTT – Yavapai County Superior Court Judge Robert Brutinel has requested a pre-trial services report before ruling on a motion to grant Joseph Lee Zylstra his freedom.

Zylstra, 46, faces two charges of sexual assault and three charges of kidnapping dating back to an April 1993 incident in which he allegedly raped two Bradshaw Mountain High School students.

During a brief hearing Thursday, attorney Ken Ray asked for Zylstra's release in the wake of a recent decision of a three-judge panel of the 9th Circuit Court of Appeals.

On Oct. 2, the panel voted 2-1 that the federal DNA Analysis Backlog Elimination Act – which allows the extraction of blood samples from those in federal custody, on parole, on probation or on supervised release – violates the Fourth Amendment, which guarantees protection from unreasonable search and seizure.

Such blood extraction is a key element in the case against Zylstra.

"This is not a suppression hearing," said Ray, alluding to earlier remarks by Deputy Yavapai County Attorney Dennis McGrane that itwas.

"This is a request to have the court modify the defendant's release conditions predicated on what may very well become the law."

Authorities extradited Zylstra, 46, from Tennessee to Arizona in January 2002 after his DNA allegedly matched the DNA samples taken from the two reported sexual assault victims in Yavapai County in 1993.

The DNA match was possible because Zylstra provided a blood sample before his release from a Washington prison for an unrelated offense in 1995.

Both Washington and Arizona fall under the umbrella of the 9th Circuit Court. Should the panel's decision stand, there's a chance the court will have to dismiss Zylstra's case al-together.

There's also the possibility that, no matter how the 9th Circuit rules, the case might find its way to the U.S. Supreme Court.

While the matter awaits resolution, Ray argued that his client – imprisoned in the Yavapai County Jail since his arrival in Arizona – should have another taste of freedom.

"We're not asking that he be permitted to roam the state," Ray said. "(But) in light of what may well become the law, I think it would be fundamentally unfair that we continue to hold Mr. Zylstra in custody."