Saying he wasn’t comfortable with forcing the county to pay, a Whiteside County judge denied a public defender-appointed attorney’s request to hire an expert to watch DNA evidence testing in a case accusing a Sterling man of sexual assault and abuse.

The ruling means the evidence, a swab taken during an investigation into the alleged sexual assault and abuse of a 14-year-old girl in 2022, will not be tested and will proceed to trial without it.

The defendant, Miguel A. Diaz, 39, of Sterling, currently is being held in the Whiteside County jail on charges that include one count of criminal sexual assault using force, which carries a sentence of four to 15 years in prison if convicted, and eight counts of aggravated criminal sexual abuse that each carry a sentence of three to seven years in prison if convicted.

Diaz was represented by private attorneys after his 2022 arrest and when prosecutors secured an order for consumptive DNA testing, a process that consumes the evidence while it is being tested. That permission included a condition that the defense would be allowed to watch the testing as it was being performed at the state crime lab.

The case later was turned over to the Whiteside County Public Defender’s Office. While the case is heading toward trial, the swab has not yet been tested.

Allison Fagerman, Diaz’s current attorney, told Whiteside County Judge James Heuerman that she did not have the experience in DNA testing to be the one to watch it and requested the county hire a qualified DNA testing expert to watch testing when it is carried out.

“This is a case that stands out to me that it will go to trial,” Fagerman said, adding that she believed an expert is needed to observe the state’s performance of consumptive testing.

“I do believe it is an issue of fairness,” she said, acknowledging that hiring an expert would be expensive.

Heuerman said if he approved Fagerman’s request it would lead to others represented by the public defender’s office to ask for an expert, all of which would come at a large cost to the county.

He also said such an action could mean that people in the middle would be left behind – the wealthy can hire an expert and those represented by the public defender’s office could get that service for free. That would be unfair to those who can pay for their own attorney, but who would be unable to afford a DNA expert should consumptive testing be needed, he said.

Heuerman denied her request. As a result, the testing will not take place, Whiteside County Assistant State’s Attorney Lauren Homan said.

Diaz will next appear in court for a Jan. 28 pretrial conference, with his trial date tentatively set for Feb. 10.