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Defense blasts delays in 1986 Chisholm homicide case

A judge should either exclude evidence or release the suspect from custody due to unexplained delays in the discovery process, a defense attorney said.

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Michael Carbo Jr.

With little progress to report six months after the arrest of a suspect in a 1986 Chisholm slaying, a judge indicated Friday that he could impose sanctions if the defendant is not soon provided with the evidence against him.

Michael Allen Carbo Jr., 52, was arrested July 29 and charged with intentional second-degree murder in the rape and killing of Nancy Daugherty after a cold-case investigation that authorities said was cracked by DNA evidence.

Carbo, who remains in the St. Louis County Jail on $1 million bail , appeared remotely in State District Court in Hibbing for what was scheduled as a contested hearing on the admissibility of evidence. But public defender J.D. Schmid said he still has not received reports detailing how his client was first identified as a suspect.

"Mr. Carbo has been in custody for the last six months," Schmid said, "and we are still at a point where we cannot have this hearing."

Carbo's arrest came after the Chisholm Police Department contracted with Parabon NanoLabs, a company that analyzes public genealogy databases and helps law enforcement agencies identify case leads. Parabon was able to construct a genetic lineage for the suspect, determining that Carbo was associated with the lineage and resided in the area, according to the charges.

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PREVIOUSLY: Arrest made in 1986 Iron Range homicide

The Minnesota Bureau of Criminal Apprehension then obtained DNA samples from Carbo directly, determining it to be a match for evidence obtained at the 1986 crime scene. Authorities said it was the first time a case has been solved in Minnesota with the assistance of Parabon.

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Nancy Daugherty

But Schmid, in a written motion filed ahead of Friday's hearing, asked Judge Mark Starr to consider excluding all evidence from Parabon, citing the company's unexplained delays in producing reports for attorneys in the case. That would also nullify the subsequent BCA testing that resulted from the company's investigation.

"Genetic genealogical investigations, like the one performed by Parabon, invade privacy in ways that are unique and novel," Schmid wrote. "To date, Minnesota courts have not addressed whether genetic genealogical investigations are lawful under the United States Constitution, the Minnesota Constitution or statutes designed to protect genetic privacy. ... The requested information from Parabon relates to any legal challenge that the defense may have to the lawfulness of their investigation."

Short of tossing the evidence, the defense attorney said Carbo should at least be granted release from jail under intensive pretrial supervision as a result of the "significant prejudice and hardship" he has faced from indefinite confinement.

St. Louis County prosecutor Karl Sundquist told the judge that he understands the defense's frustration, but said his office has been making progress with Parabon.

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"We don't dispute that the information is discoverable," he said. "We're going to work with Mr. Schmid on some of the information that needs to be protected and how we're going to work through that. But it has taken some time to get the information from Parabon."

PREVIOUSLY: Judge denies supervised release for defendant in 1986 Chisholm homicide The 52-year-old is "strongly connected to the Iron Range" and worked with people with developmental disabilities prior to his arrest, a defense attorney told the court.
Sundquist said the discovery process has also been complicated by the 35-year duration of the case, with old case files that need to be reviewed and digitized.

"This isn't an issue where the state has tried to put off things," he said. "This is working on a case that's from the 1980s, dealing with getting the information that is discoverable and making sure we're doing it in the right process."

Starr said he agreed with the defense that "it's very hard to justify keeping Mr. Carbo in custody" when he doesn't have an opportunity to move his case forward.

The judge ordered Parabon and the BCA to either produce their reports or file affidavits explaining why they can't by Feb. 10.

"I don't know why it's taking so long, and I haven't heard anything that really definitively explains that," Starr said. "There might be good reasons, but I need more than just the prosecutor telling me it's complicated. I need someone from the BCA and Parabon who's involved in this indicating what they're doing, what they think a reasonable timeline is and why it hasn't been provided up to this point."

Starr scheduled another hearing for Feb. 16 to consider Schmid's motion to either exclude the evidence or release Carbo from custody. Attorneys on both sides said they believed that would be a reasonable process for addressing the issue.

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