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Chisholm cold case suspect to remain in custody, but battle continues over DNA evidence

A defense attorney wants access to a private company's files. A prosecutor says it's "irrelevant." A judge is unsure whether he can legally order it.

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Michael Carbo Jr.

Ruling that prosecutors have "acted in good faith," a judge on Thursday declined to grant pretrial supervised release to the man charged in a 1986 Chisholm slaying.

Still, a legal battle continues over the defense's request for access to information on how Michael Allen Carbo Jr. was first identified as a suspect in the rape and beating death of 38-year-old Nancy Daugherty.

Carbo, 52, was arrested in July and charged with intentional second-degree murder after a decades-long investigation that authorities said was cracked with assistance from a private company, Parabon NanoLabs, which analyzed a DNA sample from the crime scene and compared it against public genealogy databases.

Parabon, in a first-of-its-kind investigation in Minnesota, was able to construct a genetic lineage for the suspect, determining that Carbo was an associated person who lived in the area. The Minnesota Bureau of Criminal Apprehension then obtained samples from Carbo and confirmed the match.

But defense attorney J.D. Schmid has protested the lack of access to Parabon files , arguing he is entitled to review the company's procedures to determine if Carbo's rights were violated.

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Nancy Daugherty

Schmid and St. Louis County prosecutor Karl Sundquist spoke with a Parabon official last week, but the defense attorney said the company is still refusing to provide documentation of its handling of Carbo's case. He said officials also won't reveal their standard operating procedures, calling it proprietary information.

"I can assure the court that neither I or Mr. Carbo have any interest in competing with Parabon commercially in the marketplace," Schmid said at a hearing in State District Court. "The purpose of us getting this discovery would be to make sure that what Parabon did in their investigation was both lawful and constitutional."

Schmid said Minnesota's discovery rules are "very broad" and include all evidence that relates to a case, including investigative leads. With the issue still unresolved, he once again argued that Carbo should be granted release from jail with conditions including GPS monitoring.

"He has strong connections to the community," Schmid said. "He's not going to go anywhere. He's interested in seeing this case to its conclusion."

PREVIOUSLY: Bail set at $1 million for Chisholm cold-case suspect Investigators used Michael Carbo's garbage to obtain a DNA sample that was compared to bodily fluids recovered at the crime scene 34 years ago, charging documents revealed.
Sundquist opposed the request, saying his office has provided all of the files it has received to the defense. Further, he described the Parabon evidence "irrelevant," as the prosecution would not be using the information or calling employees as witnesses at trial.

"They were basically somebody that we reached out to in order to see if we could come up with a lead," Sundquist said. "It's like a (confidential reliable informant), like an anonymous tip. We went down the line after they provided us the lead and did further investigation and came up with Mr. Carbo."

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The Minnesota Bureau of Criminal Apprehension, upon receiving the information from Parabon, collected Carbo's garbage and tested several items, indicating DNA traces were consistent with the evidence collected in 1986. Authorities said they then approached Carbo and he voluntarily agreed to give a direct DNA sample, which confirmed the match.

"It's the state's obligation to make sure that anything that we have that deals with Mr. Carbo … is provided to the defense," Sundquist said. "It's not the state's obligation to basically go on a fishing expedition to see if there's anything else out there."

Schmid, however, suggested the use of Parabon was comparable to police hiring a private security firm to rummage through a private residence in search of drug evidence or a computer forensics firm snooping on someone's online storage accounts.

"If they did violate the law in conducting their genetic genealogy investigation, they can't use the fruits of that," the defense attorney said.

PREVIOUSLY: Defense blasts delays in 1986 Chisholm homicide case

Schmid said Minnesota has "broad protections for genetic information" which have yet to be tested in court. However, he hinted that he believes there are "at least nine violations of that statute" based on the reports he has received.

"The only way that we can determine whether or not, or the extent to which, Parabon violated the law in their investigation is to get full and complete discovery," he said.

Sundquist reiterated that his position that Parabon had not conducted an investigation in the case.

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"They were given a DNA sample and they ran it through their program to see if there was anybody out there that could be related to the person to match this DNA sample," he said. "They weren't trying to find Mr. Carbo."

Judge Mark Starr ruled that the state has acted appropriately, saying prosecutors can't force Parabon to give up documents. Citing "significant progress" on the issue, he kept Carbo's $1 million bail setting in place .

Starr said a judge may be able to force discovery from Parabon, but noted it's "questionable if the court has jurisdiction to order a private company to turn over information." He ordered a series of written briefs to be submitted on the issue over the next six weeks.

The case will soon be reassigned to another judge in the 6th Judicial District, as Starr is retiring in April.

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Bygones is researched and written by David Ouse, retired reference librarian from the Duluth Public Library. He can be contacted at djouse49@gmail.com.