A possible new trial for Lynn M. DeJac likely would see her freed from prison afterward -- whether she's acquitted or convicted.
That's because recent State Court of Appeals rulings would make it almost impossible to try DeJac again on a second-degree murder charge, legal experts said Monday.
Instead, if there is a new trial, she likely would be tried on a manslaughter charge, which would carry a shorter prison term than she already has served.
Erie County Senior Judge Michael L. D'Amico will rule Wednesday whether to set aside DeJac's conviction and grant her a new trial in the February 1993 strangulation of her daughter, Crystallynn Girard.
Legal observers say they would be surprised if D'Amico didn't grant a new trial.
Erie County District Attorney Frank J. Clark, citing previous State Court of Appeals rulings, said Monday that if D'Amico grants a new trial, it would be extremely difficult to try DeJac on a murder charge. The most serious charge he likely would consider would be second-degree manslaughter.
That manslaughter charge, back in 1994, would have led to a prison term of 5 to 15 years, with prisoners seldom serving the full 15 years. DeJac has been jailed for more than 13 1/2 years.
So what are the chances that DeJac would go back to prison, even if she were convicted of manslaughter?
"I would say the chances are nil," Clark replied. "If she's convicted of manslaughter in the second degree, she has served more time than the court could have sentenced her to in 1994."
That means that a manslaughter trial could be held, even with the prospect of DeJac's being freed no matter what the outcome.
Clark was asked what could be gained from such a trial.
"The question of guilt or innocence," he replied. "The whole process isn't to determine how much time she spends [in prison]. The question is guilt or innocence. Did she kill her daughter, or didn't she? And it's a question that can only be answered by a jury."
Similarly, subsequent murder trials sometimes are held for serial killers, to establish guilt or innocence, even when no more jail time can be given.
DeJac's attorney, Andrew C. LoTempio, was guarded in his comments Monday.
"I would agree with [Clark] that she may not be tryable on a murder charge," LoTempio said. "Then it would be up to his discretion whether to spend the public's money on a new trial on a charge that she maybe couldn't even be indicted on by a grand jury."
Clark and other legal experts explained why it's unlikely DeJac could be tried on a second-degree murder charge, even if D'Amico grants her a new trial.
The reasons are complicated, based on two legal principles: the doctrine of "double jeopardy" and recent interpretations of "depraved-indifference" murder by New York State's highest court:
At her 1994 trial, DeJac was acquitted of one second-degree murder charge, intentional murder, and convicted of another, "depraved-indifference" murder. Observers considered it a compromise verdict.
Under the rules of double jeopardy, DeJac never can be tried again for intentional murder.
That leaves the depraved-indifference charge, the one of which the jury found her guilty.
Since 1994, the State Court of Appeals gradually has eaten away at the depraved-indifference charge, which is used when someone's actions show a "depraved indifference to human life."
The court's basic point seems to be that it would be hard to consider it depraved indifference, when someone strangles or fatally shoots or stabs someone in a person-to-person encounter. Such acts are more intentional.
"The Court of Appeals has drawn a very clear distinction between intentional murder and depraved indifference," Clark said. "When someone strangles someone to death, the Court of Appeals has said that is not a depraved-indifference act. That is an intentional act."
Other legal experts have said the new Court of Appeals definition restricts depraved-indifference murder to cases such as blowing up a building or shooting randomly toward a crowd. Clark also mentioned an act such as pushing someone off a boat, with no life preserver, five miles from shore.
Because of that revised definition, Clark said, it would be highly unlikely that prosecutors could obtain a new conviction on depraved-indifference murder.
But Clark doesn't seem ready to dismiss the case, if D'Amico grants a new trial.
If D'Amico does that, Clark plans to reinvestigate the killing, as he would any case, to see whether he believes there's sufficient evidence to convict DeJac of manslaughter.
"We are still left with a body of evidence that was considered sufficient to convict her of murder in 1994," the district attorney said. "I simply can't ignore that."
Punishment, he argued, isn't the only issue.
"The issue is that justice is served," he said. "If [DeJac] is going to be acquitted of this, the acquittal should come through the system."
Clark then referred to the 13-year-old victim.
"Who represents Crystallynn Girard in this whole thing?" he asked. "Lynn DeJac isn't the victim. Crystallynn Girard is. I can't forget that."