Legal team says prison inmate should be released By Jameson Cook and Mitch Hotts Macomb Daily Staff Writers March 21, 2008 Allegations raised by legal experts for a Detroit man who has spent 12 years in prison for a rape they claim he did not commit raise questions over whether police and prosecutors should have known their case rested on faulty evidence. The Innocence Project at Cooley Law School in Lansing has secured a new hearing for Nathaniel Hatchett, who was convicted in 1998 in Macomb County Circuit Court on charges of kidnapping, criminal sexual conduct and carjacking. One of the main issues raised by the project's law students was why the court and defense were never notified of additional DNA samples that were taken from the victim's husband as part of the investigation. On Thursday, a former Macomb County assistant prosecutor who handled the case said the victim urinated during the sexual assault, which could have affected a DNA sample and denies he withheld information. Eric Kaiser, the assistant prosecutor and former chief trial attorney, said he recalls the case being strong against Hatchett but believes there was some question about the reliability of the DNA sample taken from the victim. DNA samples taken from the victim did not match Hatchett, information that was provided in the 1998 trial in Macomb County Circuit Court. However, DNA testing also excluded the victim's husband, information favorable to Hatchett that his supporters say was wrongly withheld from the trial. Kaiser, now an assistant prosecuting attorney in Cheboygan County, responded that the victim told police she urinated during the penetration by her attacker. Kaiser said although the DNA test did rule out Hatchett as the attacker, there was some question as to whether the woman's urine could contaminate the molecular structure of Hatchett's DNA to make the test negative. "(The scientists) said it's possible it could have (contaminated the sample) but they didn't know whether it would or not so we have to stick to our finding. And that was introduced in the trial. That couldn't have any bearing because that exculpatory information was introduced in the trial," he said. Donna McKneelen, an assistant professor with the Innocence Project at Thomas Cooley Law School, called Kaiser's claim "ridiculous." "Urine doesn't have anything to do with a DNA sample," she said. "It's not going to contaminate the sample." The victim in the case, who was 25 at the time, was attacked about midnight on Nov. 11, 1996, as she left her job at a Kmart store in Sterling Heights. She was forced into her own car, driven into Warren, robbed and raped, and pushed out of her car. The vehicle was found a few days later with Hatchett behind the wheel and several friends inside. Hatchett's legal team theorizes the original carjacker dumped the car after the attack, and Hatchett later came upon it and hot-wired it in Detroit. The crux of the argument for a new trial is that defense attorney Beverly Austin and Judge George Steeh III were not aware the victim's husband had submitted to a DNA test in the case and had also been excluded as being the source of the semen. That information by law must be turned over by the prosecution to the defense in any criminal case and would be grounds for a new trial, attorneys say. A legal brief filed by the law school professors states: "There is no indication the court or the defense attorney were notified that the MSP lab was performing a DNA test on (the victim's husband) to see if his profile matched the biological evidence in the case." The victim told authorities she had consensual sex about one week prior to the assault, attorneys say. During the trial, Innocence Project lawyers argue, Kaiser led the judge to believe that the other semen could have been that of the victim's husband. But in fact, the DNA shows it was not the husband's, meaning the semen belonged to the true assailant, according to Innocence Project attorneys. Kathy Kuebler, a laboratory scientist with the Michigan State Police's DNA unit at the time, testified in the trial "semen can be detected in the vagina for up to two to three days." According to the Innocence Project's legal brief, Kaiser told the judge during closing arguments, "We really can't speculate whether another person, her husband, or the Lone Ranger created any vaginal deposits that were eventually tested." Kaiser also said that Hatchett's lack of match to the DNA "doesn't say Nathaniel Hatchett didn't commit these sexual acts on the victim," according to the brief. But the MSP report says the DNA belongs to an "unknown donor." Kaiser said Thursday he passed along all evidence to the defense. "Any lab reports on DNA were shared with the defense," he said. In regard to the allegation he withheld evidence, he said, "That is not the case." In an Aug. 15, 1997, report Detective Sgt. Richard Van Sice says the victim's husband consented to giving a blood sample to test his DNA. On Oct. 15, 1997, Van Sice says the test shows the victim's husband "was essentially eliminated as the person leaving behind seminal fluid in the victim." In arguing for the strength of the case against Hatchett, Kaiser points to the victim's identification of him, his "complete confession" and the fact Hatchett was found driving the victim's car.

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