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Attorney says Delano didn't jeopardize case

Dennis Delano's lawyer said Saturday that two other Buffalo news stations aired snippets of footage from the Crystallynn Girard crime scene -- provided to them by someone other than Delano -- months before the detective gave a longer tape of the scene to WGRZ-TV.

Delano was suspended from the Buffalo police as a result of giving the footage to WGRZ.

Lawyer Steven M. Cohen said he didn't know who provided the footage aired by television stations WIVB and WKBW in November 2007, but he offered the electronic proof to an arbitrator as Delano went through three more hours of public testimony in his attempt to remain a cold-case detective.

Cohen said the footage, which police brass say jeopardized an investigation, was already in the public realm before Delano handed out the police videotape to a third station in February 2008. Defense lawyers and prosecutors had copies, and any citizen should have been able to get one from the department under New York's Freedom of Information Law, Cohen said.

The news value of those crime-scene tapes exploded in 2007 when it was learned Erie County had sent the wrong person to prison for Crystallynn's death in 1993. Her mother, Lynn M. DeJac, spent almost 14 years behind bars before being freed on the strength of new DNA evidence that implicated her ex-boyfriend Dennis P. Donohue.

While Donohue was convicted of another killing, he could not be prosecuted for Crystallynn's because he was given immunity in exchange for his grand-jury testimony in 1993.

And soon after DeJac's release, pathologists and then-District Attorney Frank J. Clark said a new look at the evidence led them to conclude the 13-year-old Crystallynn had not been murdered but died of a cocaine overdose.

Delano didn't buy that conclusion, and, against department orders, started examining the accuracy of a polygraph test Donohue took in 1993. Delano also continued talking to reporters, and with DeJac's approval, gave the crime-scene tape, showing a bloodied bedroom, to a TV crew to show the overdose theory didn't hold up.

Delano and Cohen asked that the hearing be open to the public, so that it could unfold in a "straightforward manner," Cohen has said.

But the case has become the stuff of theater: a rumpled detective in search of the truth confronted by a hierarchy that considers him a rogue cop -- while the wrongly imprisoned DeJac pulls for the detective from the front row.

Cohen said Delano did not jeopardize an investigation because there was nowhere for an investigation to go. The primary suspect, Donohue, could not be prosecuted and everyone involved knew it, he said.

"We never close our cases," countered Diane T. O'Gorman, the city attorney arguing for Delano's removal, when talking to reporters later. "Evidence could be discovered at any time."

She was unfazed by Cohen's revelation that other stations had aired the footage before the detective handed it out.

"Just because a defense attorney and district attorneys obtain evidence from us," she said, "doesn't mean that Dennis Delano is entitled to release that evidence to the media in direct violation of written orders."

And it wasn't just the crime scene tape, she said. Delano also released a tape of Donohue taking that lie-detector test years ago.

Delano testified that, under the police department's code of ethics, he had to do what he did to meet the highest standards expected of an officer.

It also might come down to whether the department properly posted its order against speaking with reporters without high-level approvals, and whether those high-level supervisors contradicted their own order, as Cohen tried to prove.

For example, Delano spoke publicly on several matters without reprimand. Another code seems to let off-duty officers talk to reporters as long as they state they are not representing the department, as Delano did.

While Delano was on the stand for about three hours, he spoke for very little of that time. He often sat, fist to jowl, as O'Gorman challenged Cohen on the relevance of his evidence and the form of his questions.

They never did get to see the footage as those other stations aired it. That will have to wait until Feb. 16, President's Day, when Hearing Officer Thomas N. Rinaldo vowed to go "all the way into the evening until we finish."

e-mail: mspina@buffnews.com

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