The Utah Board of Pardons and Parole's decision to keep a man in jail for armed robbery after DNA evidence linked him to a series of rapes has the board in uncharted waters.
Some legal observers say the case of Rudy Michael Romero, 40, sets a dangerous precedent, because Romero is effectively being held in prison on an indeterminate sentence for crimes for which he was never convicted.
Romero was sentenced to five years to life for aggravated robbery, and was scheduled to be paroled July 27 after serving 10 years of his sentence.
But the parole board rescinded the date after learning June 22 he had been implicated in five rapes committed in the early 1990s after the crime lab matched his DNA with preserved evidence.
Romero has no known sexual-assault convictions and wasn't implicated in the cases until the state crime lab began to take saliva samples from prison convicts to match against DNA evidence in unsolved crimes.
However, Romero cannot be tried for the Jordan River rapes because the four-year-statute of limitations has expired.
Parole Board Chairman Michael Sibbett says that because Romero is serving a five-years-to-life term for aggravated robbery, the board can keep him locked up for the rest of his life.
"He was never paroled, so it's not like we're pulling him off the street and taking his liberty back," Sibbett says. "And he is serving a life sentence. There is no constitutional guarantee that inmates get to be released short of their expirations. And his expiration is life."
But Stephen McCaughey, a Salt Lake City defense attorney, says the parole board is setting "a dangerous precedent."
"When you basically are keeping somebody in for crimes they are assumed to have committed, crimes they were never convicted of or even charged with, you are starting to put yourself in the position of being judge and jury," McCaughey says.
However, he acknowledged that, according to state law, the board's decisions are absolute and cannot be appealed. He said any attorney who comes to Romero's aid will have "an uphill battle."
So far, no one has entered the fray, but Sibbett says he expects someone will challenge the decision.
"Do we have other cases around the country to compare it to?" he says. "No, not that we could find. So a lot of people are watching this case."
Romero repeatedly asked the parole board to provide him an attorney during the hearings to rescind his parole date. Board rules allow for legal representation only during parole violation hearings.
Sibbett says, however, that the board spent six months mulling its decision and held multiple hearings to make sure Romero understood what was happening.
"Am I losing sleep over this decision?" Sibbett says. "No, absolutely not."