Corrupt NY justice again: DNA frees wrongly convicted mother

She is now suing for compensation. And because of their error, the authorities cannot try the likely real murderer. This case was last mentioned on this blog on Sept., 25, 2007

In 1994, Lynn DeJac was found guilty of strangling her 13-year-old daughter during a night of drinking and bar hopping. On Wednesday, Ms. DeJac walked out of the Erie County courthouse free, and the first woman in the United States to have her conviction for killing someone overturned based on DNA evidence. The 44-year-old Ms. DeJac — whose husband and twin sons were seated behind her in the courtroom — began weeping after Judge John L. Michalski ordered her released on her own recognizance.

After her release, Ms. DeJac left the courthouse with her husband, Chuck Peters, whom she married while in prison, and their sons, who were born during her first year in prison. She did not speak to reporters. “The first thing she wanted to do was go to my sister’s grave, then reunite with everybody — it’s been so long,” said Ms. DeJac’s 22-year-old son, Edward Girard, an Army sergeant stationed in Fort Bragg, N.C. “She hasn’t met my wife yet; she hasn’t met her grandkids.”

Yet despite Ms. DeJac’s legal victory, she faces another legal hurdle. Frank Clark, the Erie County district attorney, said he planned to retry her on a charge of second-degree manslaughter because, since her conviction, the legal definition of murder due to depraved indifference had changed. As a result, Mr. Clark said, even if Ms. DeJac was found guilty at a second trial, she would probably not return to prison because she had already served nearly the maximum sentence possible for the lesser charge. Explaining why he planned to proceed with the case, Mr. Clark said: “The question of guilt or innocence still has not been determined. That’s why we have every trial.”

Earlier in the day, Judge Michael L. D’Amico, who presided over her trial and sentenced her to 25 years to life, set aside Ms. DeJac’s murder conviction. He ruled that new tests showing that bloodstains in the room where the body of her 13-year-old daughter, Crystallynn Girard, was found on the afternoon of Feb. 14, 1993, contained DNA belonging to a former boyfriend of Ms. DeJac’s, Dennis P. Donahue.

But Mr. Donahue will never be tried for Crystallynn’s murder, even though members of the Buffalo Police Department’s cold case squad suspect him of committing the crime. Mr. Donahue, a 55-year-old former bartender, who was charged in September with the 1993 murder of another Buffalo woman he had dated, cannot be charged in Crystallynn’s death because prosecutors granted him immunity in exchange for his testimony before a grand jury and at Ms. DeJac’s trial.

Ms. DeJac’s lawyer, Andrew C. LoTempio, urged the police to re-examine evidence found at the crime scene after Mr. Donahue’s arrest. Later, tests not available at the time of the trial indicated that a man’s DNA was present in skin cells found in a smear of blood on a wall, on bedding and in the vaginal cavity of Crystallynn, who was menstruating at the time.

Eric Ferrero, a spokesman for the Innocence Project, a legal clinic based at the Benjamin N. Cardozo School of Law in New York, said Ms. DeJac was the first woman to be exonerated of murdering someone among the 209 people cleared through DNA evidence since 1989. An Illinois woman, Paula Gray, was exonerated along with four men in 2002 after DNA testing cleared them in a 1978 double murder, but she had been charged as an accomplice, rather than someone who played a direct role in the crime. “More often than not, DNA cases involve sexual assaults, so the defendants are most often men,” Mr. Ferrero said.

At Ms. DeJac’s trial, prosecutors said she had strangled her daughter during an all-night drinking binge that took her and Mr. Donahue to a wedding, back to her home, and to several local taverns. At the trial, Mr. Donahue admitted having confronted Ms. DeJac and another man that night, and that at one point he put a knife to the man’s throat.

Although prosecutors said there was no physical evidence connecting Ms. DeJac to her daughter’s murder, they relied on the testimony of a man convicted of forging checks, who said she confessed to the killing in a bar several months later. [And one wonders what "incentives" the police gave him to testify]

The circumstantial case also hinged on Ms. DeJac’s behavior on the night of her daughter’s death: she made a 911 call shortly before midnight, then did not answer the door when the police responded about 15 minutes later. Several witnesses from the working-class neighborhood of Buffalo where Ms. DeJac lived and her mother owned a tavern described her as a troubled woman, a heavy drinker and erratic mother. They said she frequently left the girl and her 8-year-old brother alone while she stayed out all night. Crystallynn’s stepfather was convicted of sexually abusing her before she was 10 years old. “I think about 80 percent of the jury’s verdict was based on innuendo created by neighbors who didn’t like her,” said Mr. LoTempio, a former Buffalo city court judge.

Mr. LoTempio said the new DNA tests provided more evidence implicating Mr. Donahue than prosecutors had presented in the case against Ms. DeJac. “Throughout the night, he had the opportunity to be in the house, and throughout the night, he had the motive,” Mr. LoTempio said at a hearing last week on the motion to dismiss the verdict, suggesting that Mr. Donahue killed Crystallynn because he was angry at her mother. “He’s not only in her room, he’s in her blood.”

For now, he said he hoped that the attention did not hamper her in rebuilding her life. “She’s got no money, she’s got no clothes, she’s never seen the house where her husband and children live,” Mr. LoTempio said. “Think about being taken away from the world for 13 years and then being dropped back in. Hopefully, she won’t slip back into that neighborhood and the things that caused the problems in the first place.”

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