Gilgo Beach killings: Suspect Rex Heuermann's defense opposes cheek swab, court filing shows

A lawyer for suspected Gilgo Beach serial killer Rex A. Heuermann is opposing a prosecution request to take a cheek swab from the defendant for DNA testing, arguing in court papers filed Tuesday that prosecutors have failed to meet the legal standard to compel her client to provide the swab.

Heuermann defense attorney Danielle Coysh, part of the legal team assigned to represent the Massapequa Park architect indicted in the killings of three women whose remains were discovered near Gilgo Beach in 2010, said in court papers that prosecutors had not demonstrated that there was probable cause to believe Heuermann had committed the killings.

“The assertions contained in the people’s moving papers might be construed as rising to the level of a reasonable suspicion, but that is a far cry from the standard of probable cause required to justify granting the order sought by the people,” wrote Coysh.

Heuermann, 59, has pleaded not guilty to first- and second-degree murder charges in the killings of three women — Megan Waterman, Melissa Barthelemy and Amber Lynn Costello — whose remains were found near Gilgo Beach 13 years ago.

Authorities have also said Heuermann is the “prime suspect” in the slaying of Maureen Brainard-Barnes, whose remains were found with the other three victims. All four of the women were sex workers, law enforcement officials said.

Coysh’s argument came in response to Suffolk prosecutors’ filing last week seeking a cheek swab from Heuermann for more DNA testing. Prosecutors have said they already linked Heuermann to one of the killings through a mitochondrial DNA profile that was developed from a pizza crust and “used napkin” that he allegedly discarded outside his Manhattan office.

That DNA profile could not be excluded as a match to a hair found at the bottom of burlap used to “restrain and transport” Waterman's remains. Meanwhile, according to prosecutors, 99.96% of the population can be excluded.

Assistant Suffolk County District Attorney Michelle Haddad, in court documents filed last week, requested that State Supreme Court Justice Timothy Mazzei order Heuermann to submit to the cheek swab, arguing that without a direct sample of Heuermann's DNA prosecutors could only reference the pizza crusts and napkins as “purported to be used/touched” by Heuermann.

“Should the defendant’s DNA from the [cheek swab] not match the DNA profile from the pizza crusts and napkin submitted for Rex Heuermann … the defense would be presented with a potential trial defense,” Haddad wrote. “Thus, there is a clear indication that material and relevant evidence will be found and is crucial for trial.”

But Coysh, in court papers filed in Riverhead Tuesday, argued that the prosecution failed to establish that Heuermann had touched the pizza crust or napkin.

“The people essentially concede that they have no evidence establishing the defendant Rex A. Heuermann actually ever came into contact with the pizza crust or used napkin found in the discarded pizza box,” Coysh wrote, citing the prosecution’s assertion that Heuermann had used or touched those items.

Coysh added: “Thus, by the people’s own admission, the nexus between the partially eaten pizza crust and used napkin and the defendant Rex A. Heuermann is at best a matter of conjecture and assumption, not fact.”

Coysh has been assigned to represent Heuermann along with co-counsel Michael J. Brown, who has previously said his client has expressed his innocence.

"He's a man who's never been arrested before," Brown said previously. "He's maintained his innocence from the inception of this case. So he's doing the best he can at this point in time. And looking forward to having his day in court."

Coysh, in her court papers, requested that if the judge orders the cheek swab, that a member of the defense team be permitted to observe the sample being taken from their client to “ensure that the post-arraignment interaction between the defendant, Rex A. Heuermann, and members of law enforcement does not escalate, intentionally or otherwise, to an impermissible infringement of his constitutional rights.”

In their filing last week, prosecutors said they would request authorities be allowed to photograph and video record the buccal swab process should the judge grant the request.

Tania Lopez, a spokeswoman for Suffolk County District Attorney Ray Tierney, declined to comment on the defense filing.