State argues it alone should investigate leftover evidence after overturned 1985 murder conviction

SALT LAKE CITY — For more than four decades, Provo police and Utah County prosecutors have insisted that the man who killed Eva Olesen in 1985 left his DNA at the crime scene.

So when DNA tests on all the remaining evidence, including the murder weapon and the victim's clothing, determined there was no DNA from the man convicted of the murder, it seemed possible the wrong man had spent more than four decades on death row and investigators needed to reopen the case. In fact, prosecutors even said at an August hearing that they expected the new DNA evidence to be 'dispositive of the case.'

But the case wasn't dismissed. In fact, while prosecutors did abandon their quest to seek the death penalty, they still insist they're prosecuting the right man.

Leftover evidence?

Prosecutors point to other evidence in the case, including Carter's confession, which his attorneys asked a judge to throw out at that same August hearing.

Carter's defense argues the confession was coerced, claiming it was written by the lead investigator, Provo Lt. George Pierpont, who was involved in the misconduct that caused the case to be overturned. They also point out that a recording of the confession was destroyed, and therefore argue the confession should be excluded.

Judge Derek Pullan, who overturned Carter's conviction in 2022, hasn't ruled on that motion or several others filed by the defense in the weeks after the DNA testing was made public.

Defense attorneys said the DNA results exonerate Carter because the case was built on powerful forensic testimony that concluded the person who killed Oleson was a man who cut himself while violently stabbing the 57-year-old woman. The only DNA profiles on the knife are Oleson's and an unknown male. Experts also believed the killer left blood in a handprint on the home's back door and dripped into the snow outside the house.

That theory of the case, defense attorneys argue, exonerates Carter.

"Their case has fallen apart," defense attorney Neal Hamilton said, noting prosecutors have a duty to turn over any new exculpatory evidence. "They've provided us with nothing. Which means that they're violating their discovery obligations, or I think, more likely, that there's nothing to report because there is nothing going on."

A 'parallel investigation'

The lack of response led to Hamilton filing a motion to use forensic genealogy testing (referred to as FIGG testing), he said, to try to identify who else left blood on the murder weapon. Hamilton said prosecutors declined to join their request for more testing, but then a few hours after the motion was filed, both sides were contacted by the Utah Attorney General's Office, which represents the state crime lab.

"(The attorney) said, 'Hey, you're both after this. I'm not giving it to either of you. We need a court order,'" Hamilton said of the email.

So if prosecutors wanted to do the same tests, why didn't they just cooperate with the defense and get it done?

"As far as (Carter's) motion, we did not stipulate to allow (him) to do his own independent testing because we have a duty to preserve the existing evidence and to protect its integrity," said prosecutor Christopher Ballard in an email to KSL. "This investigation is ongoing. It is law enforcement's job to conduct additional investigation, not Mr. Carter's. If we were claiming that Mr. Carter's DNA was consistent with the DNA collected at the crime scene, then he may have the right to conduct his own testing. But that isn't the case."

He continued, "Further investigation in this case may lead to an additional suspect whose DNA might be consistent with the DNA already present in the existing samples. We could end up charging that individual with a crime."

That person would have the right to do independent testing and "providing some of the existing samples to Mr. Carter … might well impair a future defendant's right to access evidence," Ballard wrote.

And lastly, he wrote that DNA evidence can be "very helpful in criminal investigations, depending on the facts and circumstances of the crime. But sometimes DNA evidence tells us nothing helpful and may even distract from discovering an accurate picture of what happened. The presence of someone's DNA often tells us only that a particular person's DNA is present. It does not tell us how that person's DNA got there, when it got there, or what role they may have played in the crime."

In a two-paragraph motion filed by prosecutors on Wednesday, they opposed the defense's request to do the testing because "the state intends to conduct forensic genealogy testing on whatever samples remain, which are susceptible to the techniques involved. While Brady v. Maryland requires the production of favorable material evidence, it does not require the state to provide items to the defense so that they can conduct a parallel investigation."

Hamilton questioned why prosecutors didn't do the testing until he sought a court order.

He feels a lack of care from the prosecution when it comes to answering questions or resolving the case only add to the cruelty that Carter was set to be executed for "something he didn't do …The state of Utah stole 41 years of Doug's life," Hamilton said. "Doug deserves better. No one deserves to be treated like this."