By Lisa Redmond

MediaNews

WOBURN -- A Superior Court judge has ruled that an Ayer man serving 35 to 40 years in prison after his 2007 conviction for raping a woman with a crowbar has passed the first test in using a new law to retest DNA evidence in his case.

Defense attorney Amy Belger, representing David Coutu, argued during a hearing last October that under a new state law, a forensic expert can use a newly developed test on fingernail swabs taken from the victim after the attack. The test, which wasn't available during Coutu's 2007 rape trial, would single out male DNA in the swabbings. If the DNA does not match Coutu's DNA, it would provide grounds for a new trial, Belger argued.

In Judge Jane Haggerty's Jan. 8 ruling, she wrote that Coutu met the requirements that allow him to move to the next level under the new law. Haggerty ruled that prosecutors have 45 days to respond to the issues raised by Coutu's attorney and then both sides can contact the expert to select a hearing date. No date has been selected at this time.

This is one of the first cases in Middlesex County that would use the new law, which went into effect in May, prosecutors said. The law allows defendants to use new technology that wasn't available at the time of the original proceedings to retest old evidence.

Coutu, 48, was convicted by a Lowell Superior Court jury of aggravated rape, home invasion, mayhem and assault and battery with a dangerous weapon. He was also convicted of armed robbery and kidnapping.

After a two-week trial, the jury found that Coutu, also known as David Hebert, used a crowbar during the early-morning hours of April 9, 2006, to tunnel his way from an empty apartment into the victim's Ayer apartment. The victim testified her attacker used the crowbar to beat and then rape her.

Belger said the state crime lab took swabs of the victim's fingernails after the victim indicated she had scratched at her attacker.

Prosecutor Bethany Stevens said the swabs were never tested because they did not contain enough DNA to test using an STR test, which would have shown male and female DNA.

Belger said the new YSTR test can isolate male DNA. Belger also noted that Coutu, who is tall, could not have fit through the hole in the wall between the apartments.

Stevens argued the state crime lab indicates fingernail scrapings can be tested using YSTR, but swabs don't contain enough material.

Belger said her forensic expert disagrees.

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