Posted on Fri, Feb. 24, 2006


DA to challenge ruling in Los Gatos murder case
ORDER FORCES PROSECUTORS TO DISREGARD YARN FIBERS FOUND IN CAR SEARCH

Mercury News

Determined to win a conviction in the mysterious disappearance of a Los Gatos woman, prosecutors will fight a ruling by a Superior Court judge that forces them to disregard crucial evidence in the Jeanine Harms murder case.

Santa Clara County prosecutors today will ask the 6th District Court of Appeal in San Jose to challenge Judge Linda Condron's order, which barred fiber evidence found in the cargo area of Maurice Xavier Nasmeh's car from being used at trial.

Some legal experts said prosecutors stand a chance of winning the challenge.

In her ruling last week, Condron said police went beyond the scope of their search warrant when they seized Nasmeh's Jeep Grand Cherokee in 2001, shortly after Harms, 42, went missing after meeting him in a Campbell bar.

``We have great respect for Judge Condron, but we respectfully disagree,'' said Chief Assistant District Attorney Karyn Sinunu. ``It's our contention that the search was legal and we're going to see if the appellate court agrees.''

Sinunu said her office will argue that Los Gatos police had the right to impound the car because they had probable cause to believe that it contained evidence of a crime and was used to dispose of Harms' body.

In the search, crime lab technicians extracted fibers that authorities said connected Nasmeh to Harms' disappearance and murder.

Some legal experts questioned Condron's ruling, saying it is unusual. If police officers have cause to believe a car contains evidence of a crime, they don't need a warrant with such specifics, said Robert Weisberg, a Stanford University professor of criminal law.

``Very technically speaking, I can understand the judge's argument that police were invited to look, and if the looking didn't find what they wanted, they weren't authorized to seize the car. I think she is being a little too literal. It does go against the tide,'' he said, referring to the ruling.

Nasmeh's defense attorney, Dan Jensen of San Jose, said police had no reason to seize the vehicle. The officer who conducted the search, he said, testified that when he looked in the car ``he made no observation of any kind that aroused his suspicions or indicated the vehicle was used in the commission of a crime.''

Charles Weisselberg, a law professor at the University of California-Berkeley's Boalt Hall and a practicing criminal attorney, said he understands the need for the court to insist on exactness. ``The courts are rightly concerned when an officer asks for one thing in a warrant affidavit and executes it in a different way,'' he said. ``It's hard to say if the judge is right or wrong here.''

One common practice that Los Gatos police didn't follow was to consult with a lawyer from the DA's office in preparing their search warrant. There is no legal obligation to do so, it's just good practice, especially if there could be a challenge, legal experts said. Los Gatos Police Chief Scott Seaman couldn't be reached for comment Thursday.

Nasmeh, a former Campbell architect, was arrested in December 2004 and has remained in Santa Clara County Jail without bail.

His attorney said he was not surprised by the district attorney's challenge. ``I would expect them to do that,'' Jensen said. ``They consider that a very important piece of their case. I don't.

``I was hoping it would be over,'' he added, ``but that was probably wishful thinking.''

Harms' father, Jesus Sanchez, was reserved Thursday when asked about the latest turn of events. ``We're going to wait until everything goes through the DA's office,'' he said. ``We want to let the DA answer all the questions concerning the case.''

Los Gatos police originally obtained a warrant to search Nasmeh's vehicle, but then seized it for a crime lab to examine it, a move not allowed by the warrant, Condron ruled. The car was kept for more than three weeks, which she said was too long.

Had the officers needed more time, they could have asked for court permission, Condron ruled. But ``inexplicably they failed to seek a magistrate's approval for a lengthy, intensive seizure and search'' of the car, she said.

The fibers taken from the cargo area of Nasmeh's vehicle, authorities said, were from a yarn crafts project that Harms worked on in her home. They also were found on a rug that disappeared when she did and was later recovered. Police believe the rug was used to dispose of her body.

Nasmeh, who had met Harms for the first time on the evening of July 27, 2001, the date she disappeared, told police he left Harm's duplex as she slept on her living room sofa. He was the last person known to have seen her alive.

Harms' disappearance captured national attention and was featured on a television true-crime show, ``America's Most Wanted.''

The key break in the case came in July of 2003 when Harms' rug suddenly turned up. A woman who saw a news report about the missing rug called police, saying she had found it two years earlier next to a shopping center dumpster.


Contact Connie Skipitares at cskipitares@mercurynews.com or (408) 920-5647.




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