An important piece of evidence in the case against accused serial rapist Matthew Nilo is unaccounted for, prosecutors said at a court hearing in Boston Thursday. If they can't track it down in four weeks, the judge ruled, he'll open the door for Nilo to move to dismiss the case.
The issue revolves around the original snip of DNA evidence that prosecutors used to link Nilo, a lawyer from New Jersey, to five attacks on four women in the Boston between 2007 and 2008. Nilo has pleaded not guilty to the rape, kidnapping and assault charges brought last year.
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The defense has asked that prosecutors produce the snip of DNA as part of the trial process, but a lawyer for the Suffolk District Attorney's Office said at a motions hearing in Suffolk Superior Court that it was still working to obtain it. The rape kit was sent to Bode Technology, a DNA-testing lab, which at some point subcontracted the analysis to a Texas-based firm called Gene by Gene, which has not responded to prosecutors' "numerous" attempts to get in touch.
"We're almost to the point where I'm going to be asking law enforcement in Texas to knock on the door because they've been so unresponsive," the prosecutor said.
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"It sounds like you should ask law enforcement to knock on the door right now," Judge James Budreau said, adding, "it seems to me this has been going on long enough."
NBC10 Boston has reached out to Gene by Gene for comment.
Resources for victims of sexual assault are available through the National Sexual Violence Resources Center and the National Sexual Assault Telephone Hotline at 800-656-4673, and Massachusetts provides this list of statewide and resources for sexual assault survivors.
Defense attorney Rosemary Scapicchio argued the sample is crucial to the case — "its the entire case, it's how they focused on Mr. Nilo from the beginning," she said — though the prosecution was adamant that it was not the crux of their case, since the FBI later obtained another DNA sample from Nilo that matched the evidence.
After hearing arguments about the importance of the evidence, with Scapicchio saying that, without it, it's impossible to know if prosecutors might have been pointed toward other suspects, Budreau gave the prosecution four weeks to find and turn over the evidence to the defense team.
"If it's not produced, there's going to be a motion to dismiss based upon the rationale provided by counsel. Whether or not it's going to be successful, that's another question," he said.
The judge heard other arguments in Thursday's hearing, asking for an affidavit from a defense expert to support why they need the DNA profiles of the alleged victims — the prosecution argued that there was no need to share that evidence, and the defense filed the request based on a misunderstanding of what evidence was in their possession, anyway.
Budreau also allowed the defense to review the names of alleged victims, but said the defense can't share those names.
One of those alleged victims has previously told NBC10 Boston she plans to be at every court appearance Nilo has to show him she is not afraid of him.
"I am going to be a voice for any of the victims that don’t want to come, just so I can be here and make sure that he is held accountable," said the woman, who asked that she not be identified.
Nilo is accused of attacking several women, including one woman twice within two weeks, as part of a string of sexual assaults about 15 years ago, prosecutors have said. He's been released on bail.
The woman who was allegedly attacked was first groped by a man who tackled her out of her shoes on Jan. 3, 2008, before jogging off in the North End, then penetrated by a man she was convinced was the same one. In that incident, police said the woman, in her 20s, was walking to work when she was tackled.
"I have a gun, don't resist or I'm going to kill you," her attacker told her, with a gloved hand over her mouth and nose and another hand assaulting her. She fought back and he fled when a car drove by, prosecutors said, allowing her to flag down a tow truck driver, who called police.
"The victim told detectives she was 100% sure that it was the same male who had attacked her 11 days prior," a Suffolk County assistant district attorney said.
While no DNA profile was found from a sexual assault kit taken at a hospital after the attack, prosecutors have said, her pants were sent to a private lab, which found DNA from three people, including one male — and it pointed to Nilo. The prosecutor said it was "43.3 billion times more likely that the mixture included the defendant than another contributed."
In the other North End incidents, which spanned Jan. 2007 to July 2008, the women who reported being attacked said they were bear hugged from behind or pushed to the ground and groped or sexually assaulted.
Nilo's lawyer has said the man "intends to fight these charges vigorously in court both on a factual basis and on a legal basis."
Nilo was raised in the North End and graduated from Boston Latin Academy. He was living in the neighborhood at the time of the alleged sexual assault spree about 15 years ago.
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The 35-year-old lawyer was initially arrested in May at his home in Weehawken, New Jersey, on charges over four alleged sexual attacks in Charlestown, when he was between 19 and 20 years old.
Prosecutors later brought seven new charges after a grand jury indictment: one count of rape, one count of aggravated rape, three counts of assault with intent to rape and two counts of indecent assault and battery.
