Metropolitan News-Enterprise


Monday, April 22, 2013


Page 1


C.A. Upholds Murder Conviction in DNA Case, Again


By a MetNews Staff Writer


The Court of Appeal for this district Friday affirmed, for the fourth time, the first degree murder conviction and life-without-parole sentence imposed in connection with the stabbing death of a cab driver in Venice in July 2001.

The court concluded, as it had in each of the prior rulings in the case, that the defendant’s constitutional right to face his accusers was not violated when a DNA expert was permitted to testify about the results of testing conducted by a non-testifying technician. After each of the previous rulings—in 2007, 2009, and last year—the U.S. Supreme Court granted certiorari and sent the case back so that the Court of Appeal could reconsider its holding in the light of intervening case law.

Antonio Barba of Santa Monica was 21 years old when he was charged about a month after Keum Kim was slain. Police said they acted on an anonymous tip in obtaining a warrant to search Barba’s apartment and found a knife identical to the murder weapon, which had been recovered near the scene along with a dark sweatshirt covered with blood.

Orchid Cellmark analyzed several hairs removed from the sweatshirt and concluded that the majority of them were consistent with Barba’s DNA profile. The defense argued that the samples could have been contaminated, citing unrelated cases of DNA contamination by police criminalists, as well as numerous reports of control discrepancies at Cellmark’s Maryland lab.

Justice Laurence Rubin, writing Friday for Div. Eight of the Court of Appeal, said that analyzing DNA cases had become “to some extent an exercise in tasseomancy”—reading tea leaves—but that the court’s initial holding remained good law.

Under the Supreme Court’s most recent relevant pronouncement, Williams v. Illinois (2012) 132 S.Ct. 2221, the Confrontation Clause was satisfied, Rubin said. This would be true, he said, either because “DNA reports…created for this case were not sworn or certified declarations of fact that attested to their accuracy and reliability, and were therefore not sufficiently formal or solemn enough to invoke the protections of the Confrontation Clause,” or because the “primary purpose” of the testing was not to prosecute Barba, as DNA testing may exculpate a suspect rather than inculpate.

In an unpublished portion of the opinion, Rubin rejected several other challenges to the conviction, including a statutory hearsay objection to the admission of the DNA reports, a claim that an African American was excluded from the jury on racial grounds, that evidence regarding the anonymous tip to police should have been excluded as hearsay, and that Los Angeles Superior Court Judge Robert Perry erred in admitting jailhouse conversations as adoptive admissions.

Attorneys on appeal were Marilee Marshall for the defendant and Deputy Attorneys General Joseph P. Lee and Mary Sanchez for the prosecution.

The case is People v. Barba, 13 S.O.S. 1972.


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