DA seeks evidence from accused killer

Prosecutors want a judge to force accused murderer Jerry Nemnich to provide various items of evidence, while pushing for secrecy as to why they want those items.

District Judge Brian Flynn early next week is expected to rule on a motion filed by the District Attorney’s Office, which seeks “non-testimonial identification” evidence from the 64-year-old Longmont man charged in connection with the 1975 slayings of Linda Benson, 24, and her daughter, Kelley, 5.

According to Colorado law, “non-testimonial” evidence could include blood, measurements and handwriting samples, among numerous other items.

If granted, the ruling would allow the unspecified items to be collected from Nemnich at the Mesa County Jail, where he’s being held on $3 million bond.

The motion also seeks to continue a pattern of strict secrecy in the case: Authorities want to file under seal an affidavit in support of the new evidence collection.

Disclosure would “undermine and needlessly taint” the investigation, “especially at this early stage,” Assistant District Attorney Rich Tuttle wrote.

In a response, the judge Wednesday said he needed more information to decide whether the affidavit could be filed under the cloak of secrecy. Tom Kelley, a Denver attorney retained by the Colorado Press Association, notes Colorado court proceedings are presumptively open to the public under several U.S. Supreme Court decisions.

Kelley said a judge should need more than law-enforcement assertions of an “ongoing investigation” in determining whether the latest filings in Nemnich’s case should be sealed.

“They have to show they’ve got a specific lead and their ability to follow up on that lead will be compromised with disclosure,” he said.

An affidavit in support of Nemnich’s arrest early this month — law enforcement’s factual basis for bringing charges in the case — remains sealed.

Nemnich was charged Tuesday with two counts of first-degree murder, two counts of felony murder and counts of first-degree burglary and second-degree burglary.

With the felony murder counts, prosecutors allege Nemnich killed the Bensons while burglarizing the family’s apartment at 1300 N. 21st St., in July 1975.

Nemnich is scheduled to return to court May 20.


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