RAPE VICTIM ORDERED TO TAKE DRUG TEST

Judge Halts Analysis Of Court-Ordered Test On Saraland Woman

A urine sample given by the victim in a rape case for a court-ordered drug
test, over the strong objections of prosecutors, will remain at the Alabama
Department of Forensic Sciences, untested, for now.

Following a half-hour hearing Thursday, Mobile County Circuit Judge Joseph
"Rusty" Johnston said the sample should not be tested at this time, but he
ordered it preserved for possible future use.

Each side claimed victory in the decision.

On one side is Assistant District Attorney Ashley Rich, who is prosecuting
the case against Emanuel DeWitt, 26. He is charged with first-degree rape,
first-degree kidnapping and other offenses stemming from accusations by a
woman that, after a Fourth of July date, DeWitt forced her to his Saraland
home and raped her.

On the other side is Mobile defense attorney Rick Yelverton, appointed by
the court to represent DeWitt.

During a hearing July 9 before District Judge Delano Palughi, Yelverton
made a motion, asking Palughi to order the accuser to submit to a drug
test. Yelverton implied the woman could have been under the influence of
drugs at the time of the incident.

Palughi complied, and the woman submitted the urine sample that same afternoon.

Rich, furious over Palughi's decision and later lamenting that such a
precedent could frighten crime victims into silence, asked Johnston on
Thursday to vacate Palughi's order.

"The victim is not on trial here," Rich said in a written motion, "and the
fact of wheth er or not the victim was under the influence of controlled
substances at the time of the rape has no relevance to whether or not she
was raped."

Rich also suggested in her motion that even if a test showed the victim was
under the influence of a drug, it would not show that she was under its
influence at the time the rape occurred.

"This is a victory for us," Rich said of Johnston's decision. "He ordered
that the sample not be tested."

Although Johnston did not explain his decision, Rich suggested he refused
to order that the urine sample be disposed of, in part, because "he wants
to make sure the state's case is not damaged by evidence being destroyed."

"As long as it is preserved, I am satisfied," Yelverton said.

The hearing ranged from victims' rights to whether Palughi, as a district
judge, had the power to make such an order. Johnston appeared to lean
toward the state's point of view.

"The victim hasn't been accused of a crime," Johnston said.

If the victim was under the influence of a drug on the night of the
incident, Yelverton answered, the test results therefore "goes to her
character, goes to her ability to recall what happened that night."

Johnston suggested that, based on medical evidence, should someone ingest a
drug, such as ecstasy, traces of it would not show up five days later.

"What's all the hoopla, if there's nothing there?" Yelverton later said as
he and Rich made their points to Johnston.

Rich told Johnston, and later said outside court, that forcing a victim of
a crime to submit to a drug test "sends a message to other victims."

She said a nurse, for example, or an employee of the state who becomes a
victim of a crime might not report it if he feared being tested for drugs
and subject to losing his job.

"We're very concerned," she told Johnston.

Johnston's action left the final decision up to the trial judge.