LITTLE ROCK — Correction: Nona Dirksmeyer, who was murdered in 2005, was a student at Arkansas Tech University. Dirksmeyer’s school was incorrectly identified in this article. Also, a headline with the article also incorrectly described the outcome of trials of another man charged in the case. The trials ended in mistrials, then a judge dismissed the charges against him.
A federal judge refused Friday to grant two-time murder defendant Gary Dunn’s request to have civil conspiracy allegations against him thrown out of court.
In a lawsuit filed in 2011, Kevin Jones accused Dunn, Russellville police detective Mark Frost and former Russellville Police Chief James Bacon of conspiring to pin the 2005 murder of Jones’ girlfriend, Nona Dirksmeyer, on him.
Jones was tried in 2007 by a Pope County Circuit Court jury that acquitted him of killing the 19-year-old woman, who had been found bludgeoned to death in her Russellville apartment.
The next year, police arrested Dunn, who had been a neighbor of Dirksmeyer’s, and charged him with her murder. He was tried twice, but in both cases, the jury became deadlocked and a mistrial was declared. A judge later dismissed the murder charge against Dunn.
The civil-rights lawsuit, in which Jones seeks compensatory and punitive damages, is set for trial before a federal jury on May 13 in the Little Rock courtroom of U.S. District Judge James Moody.
Late last June, Moody also denied Frost’s and Bacon’s joint request that he dismiss the lawsuit.
While Dunn’s motion to dismiss argued that Jones’ claims were barred by the statute of limitations, Moody disagreed, as he did in the other defendants’ dismissal request. Moody reiterated Friday that Jones’ allegations, if true, would constitute concealment of evidence, which would support tolling the statute of limitations. He added that at this stage of the litigation, he is obligated to construe the allegations as truthful.
Applying that same rule, the judge dismissed Dunn’s argument that Jones failed to allege sufficient facts in support of his conspiracy claim. He noted, “The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a ‘sheer possibility.’”
Dirksmeyer, an Arkansas State University music major who competed in several pageants, was killed in her apartment Dec. 15, 2005. Authorities have said the killer punched, strangled her and tried to cut her throat before bludgeoning her to death with a floor lamp.
Jones alleges that Dunn was the person who actually attacked and murdered Dirksmeyer. Jones further alleges that Dunn, as well as Frost, the lead criminal investigator on the case, and Bacon, engaged in a conspiracy intended to protect Dunn from prosecution.
The lawsuit alleges that the defendants violated Jones’ Fifth, Sixth and 14th Amendment rights by conspiring to withhold evidence and falsify information to have Jones prosecuted.
Specifically, Jones alleges that Dunn knowingly made false statements to support a false alibi that he was away from Dirksmeyer’s apartment complex during the established time period in which the killing occurred. Jones said Frost investigated Dunn’s alibi and concluded it was false, but lied to Prosecutor David Gibbons, telling the prosecutor that he had confirmed Dunn’s alibi.
Jones also alleges that Frost persuaded the operator of a lie-detector test administered to Dunn to “slant his finding in Dunn’s favor in order to deflect prosecutorial focus from Dunn,” according to Moody’s order.
The lawsuit further contends that Frost falsely informed the prosecutor that an FBI behavioral science team report supported Frost’s conclusion that Jones had staged the crime scene, and failed to obtain DNA testing of a condom wrapper found at the scene that excluded Jones but was later found to have Dunn’s DNA on it.
Frost refused to produce his investigative notes, which contained proof of Dunn’s false alibi, to the Arkansas State Police, Jones’ lawsuit also alleges.
He contends that Bacon, the chief, knew Dunn’s alibi was false but didn’t tell the prosecutor, failed to secure a video surveillance tape that would have proven the alibi false, and pressured the prosecutor to charge Jones. Jones’ suit further alleges that the defendants didn’t release an opinion by a “polygraph authority,” Dr. Richard Poe, who believed that Dunn killed Dirksmeyer.
Moody’s order noted that Jones doesn’t accuse Dunn of specifically accusing Jones of the murder. Instead, Moody said, Jones accuses Dunn of providing false information about his own actions, which led to Jones’ prosecution. Moody said Jones has stated sufficient facts to support a claim of malicious prosecution against Dunn.
Arkansas, Pages 16 on 01/19/2013