LITTLE ROCK — The prosecution has decided not to seek the death penalty if a jury convicts Gary Dunn of capital murder in the 2005 slaying of Arkansas Tech University student Nona Dirksmeyer.
Dunn’s first trial ended in May with a deadlocked jury. Dunn, 31, of Dover is scheduled for retrial starting Jan. 10 in Johnson County Circuit Court in Clarksville. Dirksmeyer, 19, was killed in Russellville on Dec. 15, 2005, but the trial will be held in Clarksville because of pretrial publicity.
In Arkansas, capital murder is punishable by either death or life in prison without parole.
In another development, Circuit Judge Bill Pearson has denied a defense request that it be allowed to present evidence that Dirksmeyer’s boyfriend, Kevin Jones, “likely” viewed an episode of a television program that the defense says bears “striking similarities” to the Dirksmeyer crime.
The defense hopes to shift suspicion from Dunn to Jones, who was acquitted by a jury of a first-degree murder charge in July 2007. Special Prosecutor Jack McQuary has said he believes that Jones, 25, is innocent.
Jones, his mother and a friend found Dirksmeyer’s body in her Russellville apartment, where she had been bludgeoned, stabbed and possibly raped.
The state, represented by McQuary and H.G. Foster, announced the decision to waive the death penalty during a pretrial hearing last week.
Details of that hearing did not immediately become public because Pearson did not file a hearing-date notice with the circuit clerk’s office. Further, all parties in the case, including attorneys and witnesses, are under a gag order.
It is unclear whether Jonesever saw the episode of the Forensic Files program at issue. Defense attorneys contended in a September motion that the program was Jones’ favorite and that he “likely” viewed an episode about a 1985 strangling in Connecticut that they said parallels details in the Dirksmeyer case.
The prosecution argued against allowing the TV episode being introduced as evidence on the ground that it has “no logical connection” to the Dirksmeyer case. Further, McQuary wrote in court documents that the “similarities” Dunn’s attorneys - William O. James and Jeff Rosenzweig - say exist are generic, unremarkable and irrelevant.
Felecia Epps, associate dean and professor of law at the University of Arkansas at Little Rock’s William H. Bowen School of Law, said Monday that she could “completely understand the judge not allowing a TV program to be shown because that would have had a prejudicial effect on the jury.”
“It sounds irrelevant particularly if [the defense] cannot show this boyfriend watched this [episode], and even then it’s a stretch,” Epps said.
The defense is taking the angle of “let’s find somebody else to blame and [Jones is] a good target” even though he was acquitted, Epps said.
“For all we know, the one who watched the show is the person being tried,” Epps added. “You can just blow smoke and confuse the issue. To me, the judge made the right ruling.” Epps said she could only speculate on why the prosecution waived the death penalty.
Some jurors, she said, might be more likely to convict a defendant if they know the death penalty is “off the table” because then if they later learn the defendant was innocent, they might think he can still get out of prison.
Even so, Epps said, “That shouldn’t be a factor in [a] conviction.”
Epps said it’ s also possible the prosecutors concluded there were some mitigating circumstances that made it “not worth the time and effort” to seek the death penalty.
Dirksmeyer was a music major who competed in beauty pageants and was the reigning Miss Petit Jean Valley when she died. Dunn was a parolee who worked sporadic construction jobs and lived in the same apartment complex as Dirksmeyer.
Arkansas, Pages 9 on 11/16/2010