A judge this week granted a county prosecutor’s request to extend the trial of a man accused of sexually assaulting an undocumented woman after the state crime lab was unable to deliver completed DNA results in time.
The trial of 44-year-old Sergio Alfredo Bernal on five counts of sexual assault and one count of sexual abuse, which was initially set to begin on June 11 before being pushed back to June 27, is now scheduled to start on Nov. 5 to give the Arizona Department of Public Safety lab time to finish its testing.
“(Prosecutors were) not aware that the DPS lab was going to analyze fewer than all of the items submitted,” Superior Court Judge Thomas Fink said in court on Monday, in reference to the lab only testing some of the evidence submitted by the County Attorney’s Office as part of the rape kit.
While the motion to extend time initially asked for an additional 60 days, prosecutor Kimberly Hunley modified the request on Monday to a 90-day extension, explaining that the lab had provided a new affidavit with a timeframe for testing the victim’s underwear as well as DNA swabs from the rape kit.
The longer extension, she said, would allow for the lab to complete all DNA testing and for prosecutors to disclose the results to the defense. Fink granted the modified motion, saying that it was in the best interest of all involved.
“I think that it’s in the interest of the defendant to allow his attorney to properly prepare to meet DNA evidence and to possibly receive exculpatory interest,” Fink said.
But defense lawyer Mark Larkin argued that the extension of the trial violated his client’s right to a speedy trial, adding that Bernal, who remains in custody, has been doing “hard time” due to the nature of the allegations.
“The state really should be prepared to go ahead when they actually bring charges, and they weren’t in this case,” Larkin said, adding that he anticipated to file a motion to dismiss the charges.
Fink reminded Larkin that he might be entitled to court-appointed co-counsel to provide assistance with the defense.
“I’m leaving that up to you. It’s not something that happens a lot in this court, so I don’t know that people ever think about that, and it’s certainly something that this court is willing to consider,” he said.
Hunley had also filed a motion to designate the matter as a complex case, which would have extended the trial date as well. However, Fink denied that motion, saying the issues surrounding the delayed DNA tests weren’t a result of the complex nature of the evidence.
“The DPS lab apparently has a backlog due to the demands on it, and what appeared to be inadequate resources to promptly analyze all of the matters,” Fink said. “A laboratory delay does not constitute qualifying complexity.”
The state’s charges against Bernal stem from the victim’s allegation that he sexually assaulted her on or about Dec. 15 and 16, 2018, while he was the caretaker of a stash house for undocumented immigrants in Nogales. The woman was voluntarily deported back to Mexico, but the County Attorney’s Office, working with U.S. Immigration and Customs Enforcement, has been able to bring her to court for recent hearings and her court-appointed lawyer has told the judge that she is determined to be part of the trial, even with a delay.
In a concurrent federal case, Bernal also faces four counts of harboring illegal aliens for profit and one count of conspiracy to transport and harbor illegal aliens.