Veteran defense attorney Andrew C. LoTempio and Erie County District Attorney Frank J. Clark have vastly different views about who killed 13-year-old Crystallynn Girard.
LoTempio believes newly found evidence points directly at Dennis Donahue, the then-boyfriend of Crystallynn's mother, Lynn M. DeJac.
Clark still believes the evidence proves DeJac killed her daughter on the night or early morning of Feb. 13-14, 1993.
So after LoTempio filed a motion last week to set aside DeJac's murder conviction and get her a new trial, Clark announced Thursday that he will oppose that motion. "In our opinion, this new evidence does not create a probability that the verdict would be different," Clark replied Thursday. "We don't think the evidence approaches that level."
It's now up to Senior Erie County Judge Michael L. D'Amico to determine whether to vacate DeJac's conviction and sentence, and to grant her a new trial. Clark has until Nov. 20 -- DeJac's 44th birthday -- to file papers opposing LoTempio's motion.
LoTempio, in his 29-page motion, left little doubt about how he will argue this case, following the discovery of new evidence in the last two months.
That evidence shows Donahue's DNA in three locations in the young teen's room after the killing: in blood specimens found on her sheet and on the wall behind her body, and on vaginal swabs taken from her body.
"This is not 'hocus-pocus,' or a 'voodoo' lie detector, or a fiber test," LoTempio argued in his court papers. "It is what is now referred to as 'the 21st century fingerprint' -- and it points directly at Dennis Donahue."
LoTempio has to convince D'Amico that the new evidence, if available at DeJac's 1994 trial, probably would have led to a more favorable verdict for her.
"A new trier of facts should decide why Dennis Donahue's DNA is present in Crystallynn's genital area and decide if he violently violated her while killing her, or accidentally touched her during the struggle, or came into contact with her during the placement of the body," the defense attorney stated. "Quite frankly, there's a good chance they'll believe that he did the above, especially when combined with the other newfound evidence."
LoTempio also argued that Donahue had both the motive -- he was angry at DeJac and had stalked her all night -- and the opportunity to kill Crystallynn; the defense attorney stated that at least three times during the night and early morning of the killing, Crystallynn was left alone and Donahue had no verification of his whereabouts.
And let's not forget, LoTempio added, that Donahue is now charged with one other similar strangulation killing, and he continues to be investigated in another.
Donahue, however, never can be prosecuted in Crystallynn's killing. He was granted immunity when he testified in front of an Erie County grand jury, before he testified at DeJac's trial.
Clark, though, had a vastly different view of the new evidence.
First, he said, it's not evidence of murder. Second, the evidence provides no time frame for when Donahue's DNA was left in Crystallynn's bedroom. And finally, he said there never was any evidence at trial even suggesting Donahue was the killer.
Clark doesn't think there's enough evidence to prove that now.
"If this case was still in the investigative stage right now, and we knew everything we know now, there wouldn't even be sufficient evidence to go to a grand jury to seek [Donahue's] indictment, let alone get a conviction," he said.
Clark, while refusing to rule out any possible plea-deal discussions later, sounded confident about the prosecution's chances in any new trial.
"If we're opposing the motion, and we feel this new evidence doesn't create a probability that the verdict would be different, then we feel that we would prevail the second time, just as we did the first time," he said.
Specifically, Clark referred to the supposed barroom confession that DeJac made to a family friend months after the killing, a confession that he said contained specific details not known to the public.
He also cited several other parts of the circumstantial case against DeJac, including some of her bizarre behavior on the night of the crime, such as her visit to Crystallynn's bedroom and apparent talk with her, after the girl already may have been dead.
Defense attorney LoTempio, while claiming the newly found evidence implicates Donahue, also has said his whole defense strategy at trial would have changed, if that new evidence had been available.
" . . . the entire trial would be different had the DNA been available at the time of the previous trial," LoTempio said in his court papers. "Everything from opening statements, cross-examination, defendant's choice to testify or not -- the defense case and closing arguments would have been very different."
Both LoTempio and Clark stuck to their previous positions on the finding of Donahue's DNA on swabs taken from the girl. "I don't know how it got there," Clark said. "There obviously had to be some sexual contact between them. How else could it have gotten there? And [the evidence] doesn't say when."
LoTempio saved his harshest words for the implication that Donahue's DNA at the scene reflects some ongoing sexual relationship with the 13-year-old girl. "It wasn't even suggested during any part of the investigation," LoTempio argued in his motion.
"Quite frankly, it's repulsive," he added. "It is an attempt to continue to connect Ms. DeJac to the crime and explain away the presence of Dennis Donahue's DNA on and around a 13-year-old's dead, naked body."