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Aching for 2nd try before jury DeJac's lawyer says DNA can set her free

It's the one case, out of hundreds, that has haunted defense attorney Andrew C. LoTempio for more than a decade.

Not just because he's always believed that Lynn M. DeJac is innocent of killing her 13-year-old daughter, Crystallynn Girard.

He's also haunted by his belief that he should have won DeJac's acquittal.

In quiet moments, LoTempio replays the 1994 murder trial in his mind, wondering what questions he could have asked differently, or how he could have made a stronger closing argument.

"I've obsessed over the case for 13 years," LoTempio said late last week. "I have the facts memorized. I almost have the transcript memorized. I feel I only lost because I got out-lawyered in the closing statements. . . . As a person, I thought I failed this woman."
LoTempio now may have another shot, as new DNA evidence has led him to ask Erie County Senior Judge Michael L. D'Amico to set aside DeJac's conviction and order a new trial.

New tests have shown that the DNA of Dennis P. Donahue, DeJac's former boyfriend, was found in three spots inside Crystallynn's bedroom shortly after she was killed: on a vaginal swab taken from her body and in blood splotches found on her sheet and on the bedroom wall behind her.

>Weighing new evidence

"The '21st century fingerprint' has Dennis Donahue's prints on this girl's dead, naked body," LoTempio said. "Isn't it a stretch to say somebody else sexually abused [and killed] her?"
District Attorney Frank J. Clark's office filed court papers on Friday opposing LoTempio's motion.

"The evidence against [the] defendant is overwhelming," Clark's motion states, referring to 27 specific pieces of evidence.

The case returns to court Tuesday, when D'Amico could issue a ruling, decide to put off his decision or hear oral arguments in the case.

In a wide-ranging 80-minute interview, LoTempio pointed out that his trial strategy -- if there's a new trial and he still represents DeJac -- will focus largely on painting Donahue as Crystallynn's killer.

That DNA evidence, pointing straight at Donahue, would change the defense attorney's whole strategy in a potential new trial.

"The first time, I had to argue reasonable doubt, because I had no physical evidence linking Dennis Donahue to the crime," LoTempio said. "Now I do."

In that way, LoTempio agreed that a new trial could be like an old Perry Mason case. Instead of arguing guilt or innocence, attorneys would take turns pinning the crime on two different suspects.

Donahue, though, never can be charged with Crystallynn's killing; he was given immunity to testify before the grand jury in the DeJac case.

Late last week, LoTempio revealed several new arguments and pieces of evidence he plans to use in his bid for a new trial, in addition to the previously reported points he raised in his 29-page motion to overturn the conviction:

One prosecution witness from the first trial, Keith Cramer, who had lived with DeJac's family for a couple of years, has come forward and is willing to testify for the defense.

LoTempio said Cramer is willing to testify about some inaccuracies in his testimony and about tactics police and prosecutors used to sway his opinion about who killed Crystallynn.

At the first trial, Cramer testified about DeJac's behavior after discovering her daughter's body and about phone calls DeJac made to him that affect the possible timeline for the killing.

>Donahue as a witness

* LoTempio also revealed that, in a possible new trial, he would call Donahue as a hostile witness if the prosecution didn't call him. And the defense attorney suggested that Donahue couldn't plead the Fifth Amendment, since he already has immunity in the case.

* LoTempio has letters from two polygraph experts questioning the validity of the lie-detector test Donahue passed a few days after Crystallynn's 1993 killing.

"It's a fraud," LoTempio said of such a test. "That's why it's not admissible in court. Sociopaths can pass lie-detector tests, because they don't have emotional responses when they lie."

In the polygraph, Donahue contended that he didn't kill the girl, he wasn't at the murder scene, and he didn't know who killed her, sources have said.

The results of that test help explain why prosecutors allowed Donahue to testify before the grand jury -- providing him with immunity from prosecution in her killing.

* LoTempio also plans to cite another reason why Donahue may not have been eyed as a possible suspect following the killing: A close relative of Donahue had married into the family of a former Buffalo homicide detective.

"I think that may be part of the reason that police gave him a pass," the attorney claimed.

>Both sides standing firm

Clark, though, continues to oppose the motion for a new trial. While the new DNA evidence certainly raises legitimate issues, he thinks it falls far short of proving Donahue's guilt or DeJac's innocence.

The district attorney questions why everyone is so quick to dismiss the evidence and testimony that led a jury to convict DeJac. That testimony includes a barroom confession DeJac gave an old acquaintance, with information not known to the public, he has said.

As a possible court appearance approaches, DeJac was moved back to an Erie County jail last week, to allow her to aid in her defense.

LoTempio didn't know what kind of reception he'd get from her in person.

"I have told her, 'You can either slap me or hug me,' " LoTempio said. "She is mad at the system, and I'm part of the system, so I guess she's mad at me. I feel I failed her, and I imagine she feels the same way."

DeJac always has professed her innocence, and LoTempio recalled two similar statements that she made to him, first in 1993 and then this year after the discovery of the new evidence.

"What kind of sick, twisted [person] do you think I am?" she asked him.

Whoever killed Crystallynn apparently struck her in the head with a blunt object, strangled her, cut her on the chest and ripped her clothes off.

"Men might not understand this, but a mother wouldn't do this to her daughter," DeJac has told her attorney.

LoTempio has been assigned to represent DeJac in her attempt to have her conviction set aside. If there's a second trial, he'd love the chance to redeem himself.

"I'm chomping at the bit," he said. "It's my biggest failure as a lawyer, and I want to fix it professionally. On a personal level, I want to fix the wrong that has been done to Lynn -- and Crystallynn."

e-mail: gwarner@buffnews.com

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