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DeJac, absent but 'happy,' awaits her fate After 2 sides argue, judge to decide next week on request for new trial

A quirk in the law prevented her from being in the courtroom, but convicted killer Lynn M. DeJac was the central figure in an hourlong hearing Tuesday in Erie County Court.

While her absence might have bothered some supporters, it apparently didn't faze her.

"She's very happy," her son, Eddie Girard, said outside the courtroom. "She's not nervous at all. She knows what the decision is going to be."

DNA evidence was the key issue as Erie County Senior Judge Michael L. D'Amico heard arguments about whether he should set aside DeJac's murder conviction and grant her a new trial in the 1993 killing of her 13-year-old daughter.

D'Amico, who did not tip his hand on which way he might be leaning, announced that he will give his decision next Wednesday. The losing side then would have a chance to appeal.

Eddie Girard was asked whether he was disappointed that the ruling would not be issued until after Thanksgiving.

"We've waited 13 years," he told reporters. "We'll wait another week."

DeJac was not in the courtroom because state law does not entitle a defendant to be present unless the hearing deals with issues about facts in the case. Both sides stipulated to the facts about the new evidence.

But both attorneys argued about the meaning of the new DNA evidence, which strongly suggests that the DNA of Dennis P. Donahue, DeJac's former boyfriend, was found inside Crystallynn Girard's bedroom.

No one can say, for absolute certainty, that Donahue's DNA was in that bedroom the day Crystallynn's body was found, on Feb. 14, 1993.

Donahue belongs to a small group, one in about every 1,170 males, whose DNA traits match the samples found in a blood spot on the wall and in a swab from her body, according to DNA experts.

The opposing attorneys found different ways to spin those odds about Donahue's possible involvement as the killer.

"He's not only in the room, he's in her blood, he's in her body," defense attorney Andrew C. LoTempio told D'Amico. "Judge, I think you know what the blood means, and I think you know that it would change the case."

Assistant District Attorney J. Michael Marion, though, compared the DNA probabilities in this case with those in others, where the odds can be as long as 1 in a quadrillion.

"All we can say is that we do not know whose DNA that is," Marion said. "Your honor, even if we know it was Donahue's, even if we could prove it, we don't know when it got there . . . or how it got there."

The two sides carved out little new ground in their brief summaries of their legal positions.

LoTempio, though, did go further than he has in a personal aside to D'Amico.

The judge has known LoTempio for a long time, the defense attorney said, and he knows that LoTempio is not a boastful man. But then LoTempio made a prediction.

"If this trial were done again, if this DNA evidence were available, I would guarantee an acquittal," LoTempio told the judge.

Outside the courtroom, LoTempio was asked how he could make such a guarantee.

"Joe Namath," he replied, referring to the New York Jets quarterback who guaranteed a victory in Super Bowl III.

During his 14-minute argument, LoTempio hammered away at the larger picture.

"I think it's time to look at whether it's probable, under the statute, that a mistake has been made," LoTempio said.

The Erie County district attorney's office, in 1994, did everything to eliminate Donahue as the killer, LoTempio contended. At the time, prosecutors said that nothing pointed to Donahue as the killer. But now, LoTempio said, new biological fingerprints from the crime scene point directly to Donahue. "Throughout the night, he had the opportunity to be in the house, and throughout the night, he had the motive, chasing Lynn DeJac [in the city's Seneca-Babcock section]," he said.

Later, LoTempio repeated what he and other DeJac defenders have said, that Donahue now has been charged with one other strangling and has been mentioned as a person of interest in another.

The evidence, LoTempio argued, points to Donahue returning to the DeJac-Girard house about 5:30 a.m. and seeing Crystallynn. "He confronted her, fought with her, strangled her, stripped her and mutilated her," LoTempio said. "That's why I think his DNA is in the room."

Marion presented an entirely different picture in his 28-minute argument, saying that this case comes down to legal reasoning and logic.

"I did not hear a single logical argument why this [new] evidence should result in this verdict being overturned," Marion told the court.

Among his other points, Marion contended that:

* The apparent recantation of one prosecution witness from the 1994 trial, who now wants to testify for the defense, means nothing. Marion argued that there's nothing as unreliable as recanted testimony.

* It is not logical to assume that Donahue, even if he was angry with DeJac on that night, took it out on her daughter.

"Mr. Donahue was angry and jealous, therefore he killed [her] 13-year-old daughter?"

* Donahue's actions early that morning did not sound like those of a psychopathic murderer, the way he has been labeled.

At one point that morning, Donahue had confronted DeJac with a new boyfriend and had attacked him. Later, when she told Donahue that she wanted to be with the other man, Donahue agreed, without further incident, according to testimony from the 1994 trial.

"What does this 'psychopath' do? What does this 'murderer' do? He says, 'Fine.' "

* And if DeJac was so concerned about what Donahue, "her psychopathic boyfriend," might do to her daughter, did she call 911 or her mother? No, Marion said, she called a 17-year-old girl and others to check on her daughter.

* The man DeJac supposedly confessed to, Wayne Hudson, knew one detail not publicly known, about the dog barking that greeted police answering a 911 call to DeJac's home earlier that night.

Citing such evidence, Marion said, "There is no logical argument that Dennis Donahue did it."

Marion said that it is a difficult issue, "a strange bird," for D'Amico to decide, whether it is probable that a hypothetical jury armed with the new evidence would have been more favorable to DeJac. The prosecutor emphasized that that decision cannot be based on whim, speculation or sympathy.

Before announcing his intention to issue his ruling next Wednesday, D'Amico asked the two sides to "lower the volume" in their public comments.

D'Amico also spoke harshly about any efforts to contact jurors from the 1994 trial. It was not clear whether he was referring to the attorneys, their investigators or reporters.

"You know what doesn't matter?" the judge asked. "The opinion of a juror 13 years ago . . . You do a disservice to the system, to this court."

e-mail: gwarner@buffnews.com

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