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Court: Man whose twin brother is charged with murder can't be forced to supply a DNA sample - yet

The Supreme Judicial Court ruled today that Suffolk County prosecutors cannot yet force Christopher Kostka to provide a DNA sample that could bolster the case against his brother, Timothy, for the 2012 stabbing murder of Barbara Coyne in South Boston.

In reversing a decision of the Massachusetts Appeals Court, the state's highest court ruled that because the evidence from testing would not directly implicate his brother, prosecutors' desire to force him to supply a cheek swab does not outweigh his constitutional rights, since he is not being charged with the murder and because any results would only let prosecutors undercut a possible defense argument that the cops got the wrong brother, rather than providing evidence that would directly implicate Timothy for the murder.

Prosecutors, the court said, still have plenty to work with:

The Commonwealth has evidence that fingerprints found at the scene belong to Timothy; an expert could testify that fingerprints are unique even for identical twins. ... The Commonwealth also has a videotape from a store security camera from which, it maintains, a jury could conclude that, shortly after the stabbing, Timothy cashed in lottery tickets taken from the victim's home. The Commonwealth stated during argument before us that Christopher likely will be called as a trial witness. Christopher could testify at trial, as he did before the grand jury, that he and his brother are fraternal twins, as well as to any other relevant facts within his personal knowledge. In addition, the jury could consider his appearance to decide whether Christopher appears identical to Timothy, and also whether there is any likelihood that Christopher is the person depicted in the security videotape. By all these means, the Commonwealth is capable of meeting its burden of proof, without intruding on the constitutional rights of a third party who is not suspected of having committed, or of aiding in the commission of, the crime.

The court continued, however, this could change should Timothy's lawyers actually raise the wrong-brother defense - which to date the court said they have not.

If Timothy were to oppose such a motion, the calculus would be different, and at that point, the Commonwealth well might have probable cause to support a motion to compel the taking of a buccal swab from Christopher.

In a statement, the Suffolk County District Attorney's office says:

It's a curious decision in light of the earlier findings by the Superior Court and the Appeals Court that the DNA evidence is "plainly important" and the testing is the only way to obtain it. The decision leaves the door open for testing if twinship becomes an issue at trial, however, and we'll seek to ascertain whether the defendant intends to pursue such a defense.

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