A Forsyth County judge vacated a court order Friday that prosecutors said was preventing the testing of physical evidence in a case involving the death of a 2-year-old boy nearly three years ago.

Charles Thomas Stacks, 32, is charged with first-degree murder in the death of Jaxson Sonny Swaim, who died Aug. 19, 2015 at Brenner Children’s Hospital. Winston-Salem police found the child three days earlier at a house in the 5400 block of Grubbs Street. Jaxson had abrasions all over his body and head injuries. Stacks was not Jaxson’s father but had been friends with Jaxson’s mother, Candace Swaim, and had been taking care of him.

An autopsy report showed that Jaxson died from bleeding between the surface of his brain and its outer covering that was caused by a blunt-force head injury. Jaxson also had bite marks on his body that were later identified as human, prosecutors have said.

Forsyth County prosecutors are pursuing the death penalty against Stacks. A trial is scheduled to start the week of Sept. 17.

At a hearing in Forsyth Superior Court on Friday, Assistant District Attorney Jennifer Martin said that an order signed by Judge Andy Cromer on Aug. 11, 2017, has kept analysts at the State Crime Lab from testing physical evidence that Winston-Salem police detectives seized. That includes a hair found on a Louisville baseball bat that could either belong to Stacks or to Jaxson, according to a motion Forsyth County prosecutors filed seeking to vacate Cromer’s order.

The physical evidence also includes DNA and 50 hair samples taken from Stacks, red-colored stains taken from near a table leg and from a corner in a bedroom at the house, and a blood and hair sample taken from the autopsy of Jaxson, the motion said.

Attorneys Nils Gerber and Stephen Ball are representing Stacks. Assistant District Attorneys Amara Hunter and C. Ruffin Sykes are prosecuting the case along with Martin.

The issue during the hearing was what might happen if certain physical evidence, particularly DNA, can’t be re-tested after it has been analyzed. Stacks, Gerber said, has the right to examine the evidence against him, including DNA and other biological evidence.

Martin and Hunter argued, however, that defendants have the right to examine and challenge that evidence after it has been tested, not before.

Another issue was that the order was signed after an ex parte hearing, which, in this case, meant that prosecutors were not present when Cromer heard the matter on Aug. 11, 2017. Gerber said in court that prosecutors were notified about the order on Aug. 14, 2017. Prosecutors said they did not realize the consequences of the order until they submitted a rush order to the State Crime Lab on Jan. 22 to have the evidence tested.

A lawyer with the State Crime Lab told prosecutors that the crime lab could not test the evidence because of language in the court order. The second paragraph of the order said that “all of the above agencies are prohibited from consuming all trace, blood or DNA evidence of Jaxson Swaim, or the defendant or anyone else whose trace, blood, or DNA evidence was obtained, without prior notice and order of the Court,” according to the motion.

Martin said in court Friday that the order has stalled the criminal investigation for seven months. Cromer, who presided over Friday’s hearing, said that was not his intent.

Cromer vacated the order but he wanted to set up safeguards to make sure parties are notified if analysts realize that a piece of evidence can’t be re-tested after analysis. Gerber offered several options, including the possibility of a defense expert being present in the lab.

Martin objected strongly to any suggestion that defense experts be in the lab. The State Crime Lab has specific protocols to protect the integrity of its work, she said. She also said it would create burdens if the State Crime Lab had to notify prosecutors about evidence that could not be re-tested.

Gerber said he understands that it might be burdensome, but he reminded Cromer that his client’s life is on the line, if he is convicted of first-degree murder and gets the death penalty.

Cromer ultimately ordered that the State Crime Lab notify prosecutors if certain evidence gets to a point where it can’t be re-tested.

Martin said requiring that would likely delay the trial for months.

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mhewlett@wsjournal.com 336-727-7326 @mhewlettWSJ

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