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Eacker's prosecutor to testify: Judge aks for explanation of information's exclusion

Posted: Saturday, January 02, 2010

"I feel like I'm in a church," Tonja Updike whispered to her husband Josh as Jimmy Eacker slowly ambled into the courtroom sporting a dingy yellow jumpsuit, his face ruddy, hands clasped and bound.

Photo By M. Scott Moon
Photo By M. Scott Moon
Jimmy Eacker is pictured in court last March. A judge has ordered the prosecutor in the case to testify before ruling on a defense motion.

Aside from the rustle of cautious movement and the faint clink of jostled handcuffs, the room was religiously silent. Updike, the niece of the woman Eacker was convicted of murdering in 1982, sat next to her husband on the padded courtroom bench; Debbie and Barb Davis, the woman's two surviving sisters, also settled close to their respective husbands, Chuck and Rusty.

It was a Tuesday, and here they were again, convened in a stuffy courtroom for what seemed like the millionth time, waiting to hear what Judge Anna M. Moran had to say. Eacker's defense attorney wanted a new trial for his client, or for the case to be dismissed altogether; the family just wanted this drawn-out ordeal to be over, with justice as its conclusion.

At the heart of this Dec. 28 status hearing was defense attorney Benjaman Adams' charge that the state's prosecuting attorney Pat Gullufsen withheld exculpatory evidence during Eacker's original trial: namely, a partial male DNA profile collected from Toni Lister's vaginal washings that did not belong to Eacker. Adams claimed this finding could have been a game changer, and that Gullufsen "willfully and knowingly" withheld this evidence to gain a tactical advantage in the trial.

Lister was only 29 when she was fatally stabbed 26 times with a Phillips screwdriver and carelessly dumped in an abandoned patch of forest next to the Seward garbage dump in 1982. After decades in limbo as a cold case, Lister's murder resurfaced in 2007, when DNA evidence led to Eacker's implication and eventual conviction in 2010.

Updike hazily recalled that she was either 4 or 5 when her aunt was murdered, yet she and her sister have continued to follow Eacker's trial and attend as many court dates as possible since its beginning.

"Originally when my mother told us that this proceeding was starting, my sister and I really wanted to be involved because we don't remember our aunt," said Updike, now 32.

"We always grew up knowing the end result and nothing else."

Curiosity aside, Updike's immersion in the trial began to yield knowledge she initially had not expected to find.

"As the proceedings continued, we kind of felt like we were in an odd way starting to know our aunt," Updike said. "Mr. Gullufsen spent a lot of time asking my family about what she was actually like. She was a really great mother, a very caring individual. She was trying to get her life together."

Updike's emotionally exhausted family came to the status hearing kindling a dim hope that the story of Lister and Eacker would reach some sort of ending, but again they received a disappointing -- yet entirely expected -- blow: Moran ruled that Gullufsen will appear in court, either personally or telephonically, on Jan. 7 to testify as to why he did not include certain information in his original report.

"I was really hoping to have Judge Moran's final action on this so that we would know if we were going forward to appeal or if it was going to go to a new trial," said Debbie Davis, Lister's 52-year-old sister. "But I'm not surprised that we're continuing on. This has been going on for a long time."

"I'm angry over the whole thing," added Barb Davis, Updike's aunt and Lister's 55-year-old sister. "I just want it done. When nothing gets done, you're just going, 'Why are we wasting court time? Why are we wasting all this time and money?'"

Defense attorney Adams contended that things are, in fact, getting done, and that the court proceedings have not been unnecessarily drawn-out as a result of his actions.

"I'm not prolonging it," Adams maintained. "I'm doing my job. It's the state that has failed to move this matter forward in a timely and appropriate fashion.

"This is a cold case murder where a woman was brutally stabbed with a screwdriver and left at a garbage dump," he asserted, "and the state had evidence that another man's DNA was found in her vaginal washings and didn't give it to us. What would any competent defense lawyer do when they found that information out? Especially when the evidence against Mr. Eacker in the first place -- in my opinion at least -- didn't establish guilt."

Adams is not trying to suggest that he doesn't sympathize with the grieving family; he does. But placing the blame on the defense for their protracted heartache, he claims, is unfair.

"You have to look at who's responsible for the delay," Adams said. "Is it the defendant who dares to press his constitutional rights? Is it the defendant who says, 'Wait a minute, you withheld exculpatory evidence.' Or is it the district attorney who when directly asked by a judge, 'Do you have this evidence?' said 'No, I don't,' when he had it in his hand? Who's responsible for the family's grieving at this point? Certainly not us."

Even if Moran does decide to uphold the jury's conviction of Eacker when Jan. 7 rolls around, Lister's family will still have years of the appeals process to endure, as Adams has stated that he will pursue that option if need be.

Karen Garcia can be reached at karen.garcia@peninsulaclarion.com.



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