Delaware Superior Court Judge T. Henley Graves ordered the extradition to Maryland of accused murderer Matthew N. Burton following a hearing Aug. 16 in Georgetown.
Graves said DNA evidence as well as a ski mask found in Burton’s car are sufficient probable cause to order extradition.
Burton, 28, of Dagsboro, is charged with first- and second-degree murder in the slaying of 35-year-old Nicole Bennett of Long Neck. Bennett's body was found along a rural road outside Whaleyville, Md.
Maryland police matched DNA found on Bennett's body to Burton. A U.S. Marshal's Task Force arrested Burton near Rehoboth Beach July 6, and Burton has remained in Sussex Correctional Institution pending extradition to Maryland.
Maryland investigators say Burton committed the crime and left Bennett's body in Maryland. Bennett's body was found June 15 in Maryland; as a result, that state has jurisdiction in the case. However, Burton was arrested in Delaware, so Maryland officials consider him a fugitive and have sought his extradition.
Burton appealed an Aug. 6 Justice of the Peace Court decision extraditing him to Maryland. In appealing the case, Burton's attorneys wrote Burton asserted he is innocent of the charge and was not in the state of Maryland on June 14.
During the hearing, Burton attorneys John Garey of Dover and Flynn Owens of Baltimore argued Burton was not in Maryland on June 14, when the crime occurred.
Garey told Graves prosecutors had no evidence showing Burton was in Maryland at the time of the crime.
The last sentence of the warrant for Burton's arrest, Garey said, states all events occurred in Maryland, a fact Garey said Maryland prosecutors cannot prove.
"This is a very serious issue," Garey said. "If they can't determine the events in Maryland, then all we know is there is a body in the state of Maryland, and that the medical examiner determined it was a homicide by asphyxia."
Graves said to successfully appeal Burton’s extradition, Garey would have to show Burton was not in Maryland when the crime occurred. Neither Garey nor Owens could provide any evidence Burton was elsewhere.
"DNA of your client was found on the body ... that's a real game changer," Graves said.
During an extradition hearing, documents from the state levying charges are reviewed by the judge. If the judge determines there is enough probable cause evidenced in the documents, he can approve extradition.
Graves said in cases such as this, it is the defense that must prove an error in charging documents, which is unusual because in most cases the prosecutor is burdened with proof.
Owens attempted to call Maryland State Police Sgt. Sabrina Metzger to the stand to testify to how she knows Burton was in Maryland, but Graves denied the request.
"I'm not going to do discovery in a Maryland case," Graves said. "This is a very difficult burden for you, I understand."
Owens said the defense doesn't know what type of DNA evidence was found or whether it was placed on Bennett's body in Maryland or in Delaware.
Delaware prosecutor David Hume said Burton is a fugitive because he is wanted by the state of Maryland, but he remains in Delaware. Hume said the Maryland charges are enough for extradition.
"But the issue is whether the offense was committed in Maryland," Garey said.
Graves said, "If they can establish by probable cause that he was in another state ... that he was there and he is now here, so that would make him a fugitive."
Garey argued that the DNA could have been passed from Burton to Bennett during the course of working together at Bay Shore Community Church outside Gumboro. Police determined Bennett was last heard from June 14 while she was working at the church. Burton was also at the church that night, working as a part-time custodian.
"The fact that DNA was found on the body does not get the ball over the hurdle," said Garey.
Graves said other pieces of information compiled by Maryland and Delaware investigators provide other connections between Burton and Bennett. Graves cited a ski mask and other items he called "peculiar" found in Burton's car during a police search.
"That a ski mask was found in his vehicle and his DNA on her are all reasonable inferences for probable cause," Graves said.
During the court proceedings, Burton's family sat quietly in the back corner, while Bennett's husband, Kevin, and his parents sat closer to the front of the room, quietly crying.
After the extradition was approved, both families were quietly escorted out of the courtroom. The Bennetts met with attorneys from Maryland to discuss what happens next.
Jason Miller of the Delaware Department of Justice said officials cannot confirm whether Burton will be extradited Aug. 16.
"The timing of his extradition will be affected by the time required by the Delaware Department of Corrections to process the extradition order and the time it takes for Maryland authorities to arrange their transport of Burton to Maryland," Miller said.
Garey could appeal the Superior Court decision to Delaware Supreme Court, but Miller said prosecutors are not aware of such an appeal at press time.
After Burton is arraigned in Maryland, Worcester County State's Attorney's Office will prosecute the case.