Eacker proceedings continued to Feb. 11

Posted: Sunday, January 09, 2011

When Judge Anna Moran announced after three hours of testimony Friday that an evidentiary hearing in the ongoing Jimmy Eacker proceedings would be extended to Feb. 11, the packed courtroom in Kenai let out a collective sigh of frustration.

Pat Gullufsen, a retired attorney who acted as the prosecutor in Jimmy Eacker's murder trial, was testifying as to why he had, in early 2010, withheld a report from the defense confirming that DNA other than Eacker's had been found in the victim's vaginal washings.

The defense charged that Gullufsen had engaged in "intentional and reckless actions and misrepresentations to the court" when he withheld the report containing what he believed to be meaningless, non-exculpatory information.

On these grounds, Eacker's defense team demanded that the convicted murderer be granted a dismissal with prejudice, meaning that Eacker would be immune from a retrial for 29-year-old Toni Lister's brutal murder in 1982. If the court denies this request, they say at the very least Eacker deserves to be retried with all of the evidence being taken into account.

Assistant defense attorney David Weber questioned Gullufsen incessantly about his motivations and state of mind when withholding the report. Gullufsen delivered his answers in measured, thoughtful statements, and the discussion soon spiraled into the distinctions between "swabs, smears, and slides," including many of the intricacies and technicalities surrounding DNA testing and transportation processes.

"The court was wanting to know if I had a piece of paper that constituted a report, and I did," Gullufsen said. "But what I had was meaningless. I didn't have any discomfort in saying, 'Basically, I have nothing.'"

At the core of the defense's argument against Gullufsen was the claim that he had clearly violated a provision of "Rule 16" in the Federal Rules of Civil Procedure, which stipulates that the prosecution is required to turn over expert reports to the defense whether or not that expert testifies at trial.

"This is an issue I've thought about a lot," Gullufsen said. "The question has come up, 'Did I violate criminal rule 16?' Obviously that's one of the issues. I think I did, with the benefit of hindsight."

Gullufsen conceded he did not necessarily do the right thing during the trial by withholding the report, but would not say he did the wrong thing.

"I think I had made a mistake as to what the report was about," he admitted. "I formed an intent or understanding of the evidence on that basis."

"I certainly didn't have intention to withhold any exculpatory information," Gullufsen added. "I didn't think there was any; I still don't think there is any."

But according to the defense, that was not Gullufsen's decision to make.

"The question of whether the results were reliable or whether they were admissible was not an issue for Mr. Gullufsen to conclude in his own mind," said Tracey Wollenberg, another member of Eacker's defense team, "but instead an issue for this court to decide after disclosure to the defense."

Wollenberg stressed the point of Gullufsen's alleged obstruction of justice in her closing statement and succinctly concluded, "Mr. Eacker did not receive a fair trial, and that's what it comes down to."

The hearing was ultimately extended to allow the prosecution a chance to bolster Mr. Gullufsen's testimony by providing any information the state has regarding the transfer of the relevant genetic materials from the Alaska Crime Lab to the Paternity Testing Corporation (a DNA testing laboratory).

Prosecuting attorney Scot Leaders reluctantly accepted the opportunity to supplement the record with these documents, claiming he had to speak with others who have a better understanding of the case and record before deciding whether or not such action is necessary. Leaders has only come on as the prosecuting attorney in the Eacker trial recently, as Gullufsen retired to Juneau after the conviction, and is required to give Moran notice of his decision by Jan. 24 at the latest.

When the hearing ended after three hours, Lister's remaining family, who try to attend all of Eacker's court dates, seemed dazed and silently outraged.

Lister's 32-year-old niece Tonja Updike described how "disappointed, frustrated, and sad" she was at the result. Everyone had hoped for a final outcome on Friday, as Moran had stated her desire to rule on the matter during Eacker's last status hearing on Dec. 28, because along with this extension comes the mounting dread, the tendrils of unease beanstalking their way up into Updike and her family's consciousness.

"We're starting to get anxious," she said about the possibility of Eacker receiving a new trial. "And that's difficult; the anxiety on top of the frustration. We don't want to have to do it again."

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

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