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Guilty Verdict Set Aside By Judge New forensic evidence justifies retrial, he says

Lynn M. DeJac will get a new trial, probably in about six months.

But it won't be a murder trial.

And whether she's acquitted or convicted, she'll walk out of court a free woman -- this time, for good.

DeJac got her first taste of freedom in 13 1/2 years at 2:43 p.m. Wednesday, following a madcap day that included a judge's ruling to grant her a new trial, the district attorney's decision not to appeal that ruling and a bail hearing where both attorneys agreed she should be released without bail.

Defense attorney Andrew C. LoTempio called the decision to set aside the murder conviction the biggest victory in his career.

"I'm getting some demons exorcised by this decision," LoTempio said moments after seeing the ruling. "I failed this lady when I lost this trial, and I've done everything I could to get that verdict set aside."

Two events Wednesday morning ensured DeJac's release:

Erie County Senior Judge Michael L. D'Amico set aside her second-degree murder conviction in the 1993 killing of her 13-year-old daughter, Crystallynn Girard. His ruling was based on new DNA evidence that showed DeJac's former boyfriend, Dennis P. Donahue, had been in the girl's bedroom before her body was found.

" . . . this court must conclude that if the newly discovered forensic evidence was available at the time of trial, there exists a reasonable probability that the verdict in the defendant's trial would have been more favorable to the defendant," D'Amico wrote.

In a letter accompanying his six-page decision, D'Amico also recused himself from further proceedings. At DeJac's 1994 sentencing, D'Amico said, "I think the jury was right."

At a noon news conference, Erie County District Attorney Frank J. Clark said he would not appeal D'Amico's ruling and did not oppose LoTempio's motion to have DeJac released from jail. But he also said he plans to retry her, probably on a second-degree manslaughter charge.

Those developments ensured that DeJac would be freed Wednesday. Her captivity ended a couple hours later, when State Supreme Court Justice John L. Michalski released her on her own recognizance, with three conditions: that she live a law-abiding life, that she stay in Erie County unless she gets permission to leave and that she contact no one else involved in the trial.

No one is questioning that there will be a new trial.

"I think the . . . resolution of this case other than by trial is highly unlikely," Clark said.

The new trial, before State Supreme Court Justice Penny M. Wolfgang, will be unusual, in several ways.

The manslaughter trial will be an attempt to determine DeJac's guilt or innocence, not her punishment. Here's why:

In 1994, DeJac was tried on two second-degree murder charges, intentional murder and depraved-indifference murder. In a compromise verdict, she was acquitted of intentional murder but convicted of depraved-indifference murder.

Since then, the State Court of Appeals has greatly restricted the scope of depraved-indifference murder to such acts as firing into a crowd or blowing up a building. The state's highest court has suggested that "depraved indifference" doesn't cover a face-to-face encounter between two people.

Those changes in the law won't support a depraved-indifference count against DeJac, Clark repeated Wednesday. And since first-degree manslaughter was thrown out when DeJac was acquitted of intentional murder, second-degree manslaughter remains the strongest charge surviving.

DeJac already has served 13 1/2 years in prison. That's longer than she would have served if she had been convicted of second-degree manslaughter.

"My guess is that, even if she is convicted, she will not get any jail time," Clark said.

That is apparently why Clark, through prosecutor Thomas M. Finnerty, did not oppose DeJac's release from jail at Wednesday's bail hearing.

As LoTempio said earlier, "How do you keep in jail somebody who can't go to jail anyway?"

So why is Clark pursuing a trial?

"The question of guilt or innocence remains unanswered," Clark told reporters. "That's why we have trials."

LoTempio had another view.

"I understand what [Clark's] job is, and I respect what he has to do, but at some point when you know the facts are pointing to reasonable doubt, you have to say, 'Are we spinning our wheels here?' "

Usually, a district attorney doesn't even seek an indictment in cases where there is as much reasonable doubt as there is here, LoTempio claimed.

Clark and LoTempio, rivals and friends, also tossed a few jabs back and forth.

Last week, in court, LoTempio had guaranteed D'Amico that DeJac would be acquitted in a new trial.

"My response is: I don't think Mr. LoTempio is going to be on the jury," Clark quipped Wednesday, after being prodded by reporters.

"I said it, and I'm standing by it," LoTempio replied later, saying he was confident there's enough reasonable doubt to ensure DeJac's acquittal.

The new trial promises to be a far different one from the 1994 trial, on several counts:

* The new trial may focus less on DeJac's guilt or innocence than on the question of who killed Crystallynn: DeJac or Donahue.

* LoTempio revealed Wednesday that the Innocence Project will supply DeJac's defense with scientific experts, and perhaps some attorneys, to answer many of the issues that Clark has raised about Donahue's DNA.

Donahue already has been charged with one woman's strangulation and been labeled a person of interest in two others, including Crystallynn's. But he was granted immunity for his testimony before the grand jury that indicted DeJac and so cannot be charged with Crystallynn's murder.

Clark has questioned how Donahue's DNA in Crystallynn's bedroom proves that he was the killer, and the district attorney also has pointed out that no one can say when that DNA got there.

* In high-profile cases, defense attorneys usually question whether their clients can get a fair trial. In this case, though, the media have been filled with speculation about DeJac's possible innocence.

"Can the people get a fair trial in this case?" Clark asked, sounding more like a defense attorney. "I think they can."

* LoTempio has said that one prosecution witness from the first trial, Keith Cramer, now wants to testify for the defense about some inaccuracies in his testimony. It is also unclear if Donahue, who was with DeJac for hours on the night preceding the killing, will testify again for the prosecution.

* While LoTempio clearly has some new cards to play at this trial, Clark won't be sitting by idly. Like LoTempio, he expects his trial strategy will change. Clark plans to reinvestigate the case, just as he would any homicide. But one thing will be different.

"It certainly won't go back to the [Buffalo police] Cold Case Squad, that's for sure," Clark said, referring to the three detectives who said recently that DeJac deserves a new trial. "They've already established what they think of the case."



>The Lynn M. DeJac case

Feb. 13-14, 1993 -- Crystallynn Girard, DeJac's daughter, is strangled in her Seneca-Babcock area bedroom.

December 1993 -- DeJac is charged in her daughter's killing. Testifying before the grand jury, her former boyfriend, Dennis P. Donahue, is given immunity in the case.

April 20, 1994 -- DeJac is convicted of one count of second-degree murder.

June 7, 1994 -- DeJac is given the maximum sentence, 25 years to life.

September 2007 -- Donahue is charged with strangling one woman and labeled a person of interest in two other killings, including Crystallynn's. New tests show that Donahue's DNA was found in Crystallynn?s bedroom.

Nov. 20, 2007 -- Erie County Senior Judge Michael L. D'Amico hears arguments on whether DeJac should be granted a new trial.

Nov. 28, 2007 -- D'Amico grants her a new trial, and DeJac is released from jail.

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