RUSSELLVILLE — A judge Tuesday dismissed a capital-murder charge against Gary Dunn, whose case has twice ended in mistrials in the 2005 slaying of Arkansas Tech University student Nona Dirksmeyer.
The dismissal was issued at the request of special prosecutor Jack McQuary, who said in his motion that investigators have been unable to locate a possible new - and key - witness in the case.
Prosecutors also want more time to pursue “newly-discovered, credible evidence,” the motion states.
Circuit Judge Bill Pearson’s decision means Dunn will not be retried as scheduled on Aug. 1. He can, however, be charged again and retried later.
Dunn’s previous two trials ended with deadlocked juries. The split both times was 8-to-4 in favor of acquittal.
Immediately after Tuesday’s hearing, Dunn, 31, was freed from the Pope County jail, where he had been held since his arrest in August 2008.
Attempts to locate Dunn for comment after his release were unsuccessful. No one appeared to be at his mother’s home in Dover. And Martha Dunn’s phone went unanswered.
In nearby Russellville, a tentative Duane Dipert answered the door at the home he shares with his wife, Carol, Dirksmeyer’s mother.
The couple found out a week ago that Dunn would likely be released, Duane Dipert said.
“We’re OK with it,” he said, explaining that the previous trials have taken a toll on the family.
Also, he added, the worst-case scenario would be to see Dunn retried in August and subsequently acquitted.
“This way, it’s still hanging out there,” he explained.
Dipert blames the difficulty in getting a conviction on a flawed investigation by the Russellville Police Department. And he realizes his stepdaughter’s murder may never be solved.
“I took off my bumper stickers that said ‘Justice for Nona,’ because I don’t believe there will be justice for Nona,” he said.
Dirksmeyer’s body, nude but for a pair of ankle socks, was found Dec. 15, 2005, by her boyfriend, Kevin Jones, his mother and a high school friend. She was 19 at the time of her death.
The killer had punched her, strangled her and tried to cut her throat before using a floor lamp to bludgeon her to death.
Prosecutors have said they believe the killer tried to sexually assault Dirksmeyer, a music major who often competed in beauty pageants. The defense, on the other hand, points to testimony from a medical examiner, who said he found no evidence of sexual assault.
Dunn, a former construction worker and parolee with a felony battery conviction, was the second person charged in Dirksmeyer’s slaying.
Jones, now 26, was originally charged with first-degree murder in her death, but a jury acquitted him in 2007.
Even so, Dunn’s defense attorneys, Bill James and Jeff Rosenzweig, have repeatedly blamed the killing on Jones, suggesting he got away with murder.
McQuary has said, however, that he believes that Jones was indeed innocent.
In the prosecutor’s motion, which was filed Monday, McQuary wrote that the state “has continued its attempt to locate an absent material witness described by other witnesses at trial, as well as newly-discovered, credible evidence that requires further investigation by the Pope County Sheriff’s Office and the Arkansas State Police.”
“The state does not seek nolle prosequi merely to avoid a speedy-trial dismissal, but seeks to locate the missingwitness and investigate the additional information that has come to be known to its investigators,” McQuary added.
The missing witness apparently was a reference to an unidentified woman whom Dunn’s estranged wife, Jennifer, has testified she saw leave Dirksmeyer’s apartment with Gary Dunn and Dirskmeyer about 2 a.m. or 3 a.m. Dec. 1, 2005, two weeks before Dirksmeyer was killed.
The prosecutor’s motion for entry of nolle prosqui means that he “will not further prosecute the case,” according to Black’s Law Dictionary.
That means at this moment, Dunn isn’t charged with capital murder.
Prosecutors can refile a charge should they choose.
Pearson’s order was filed with the Johnson County circuit clerk’s office Tuesday, after a hearing earlier in the day in Pope County.
During the hearing, he ordered that everyone leave the courtroom, except for special prosecutors McQuary and H.G. Foster, Assistant Attorney General Kent Holt and Arkansas State Police Sgt. Stacie Rhoads.
During that 20- to 30-minute closed session with the prosecutors and the judge, Rhoads apparently testified in-camera and ex parte, meaning solely for one side - in this case, the prosecution.
Such testimony, one criminal law expert said, does not become part of a trial record.
Ken Gallant, a law professor at the University of Arkansas at Little Rock William H. Bowen School of Law, said the testimony in this situation could have been about Dunn, someone else or Dunn and another person.
Gallant said the state’s motion sounds as if prosecutors “believe that they may have more evidence that they can find and that, if they find this and it would support their case, that they might attempt to charge [Dunn] again.”
“If [Dunn] is retried again, defense counsel would at least have the opportunity to raise speedy-trial issues and the court would have to adjudicate them,” Gallant added. “The idea here [in this case] is that it [the dismissal] is done without prejudice.
...The right is reserved to file [charges] again.”
In a related development, Pearson also prohibited the prosecutor, the public defenders or any other law-enforcement agency or laboratory from releasing case files and ruled that no files, reports or evidence is to be destroyed without the court’s consent.
“The Court finds this matter has not reached a conclusion through disposition or dismissal. Investigations may continue by both parties,” the judge wrote.
Jones recently sued Mc-Quary seeking information from the case files under the Arkansas Freedom of Information Act.
The judge also continued a gag order that prevents all attorneys and witnesses in the case from commenting. For now, the gag order still applies to Dunn.
The judge set another hearing “concerning the ongoing investigation” for Oct. 3 at 1:30 p.m. in Russellville, at which time he is expected to reconsider his gag order.
Front Section, Pages 1 on 04/06/2011