HELENA (AP) — A Montana judge said Friday she would not make a ruling from the bench on a motion by the Montana Innocence Project to overturn the murder convictions of two men and release them from prison.
After a daylong hearing, District Judge Kathy Seeley said she would take under advisement arguments she heard on behalf of Freddie Joe Lawrence, 56, and Paul Jenkins, 64, as well as opposing arguments by the state.
Recent DNA tests showed a rope found at the crime scene of Donna Meagher’s 1994 killing had her blood on it along with DNA from David Wayne Nelson, 55, who is serving a life sentence for killing Greg Giannonatti and his mother, Beverly, in Deer Lodge in 2015.
State Division of Criminal Investigation Agent Jeff Vittatoe testified that Nelson is a suspect in Meagher’s killing and that the investigation continues.
Attorneys for Lawrence and Jenkins argue there is a reasonable probability that jurors would have reached a different decision if the new evidence was available at their trial.
The state’s entire theory of the homicide case “is no longer tenable or credible,” attorney Larry Jent argued.
Jenkins’ wife, Mary, — who has since died of Alzheimer’s disease — testified that Lawrence, Jenkins and a third man were involved in kidnapping Meagher as she closed up a family-owned bar and casino in Montana City. But Jent said no DNA from any of them has been found on the evidence.
Nelson’s wife, Eileen, offered an explanation for how her husband’s DNA could have gotten on the rope.
While acknowledging having short-term memory issues due to brain damage, she said they held a garage sale in Butte in late 1993 that included a box of free items.
“If this person took this big box of free stuff, there was probably a rope in it,” Eileen Nelson said, adding that she and her husband’s DNA would be on it because they put the items in the box. She identified Jenkins as the man, saying she remembered his eyes, that he wanted the entire box of free items and wanted other items for free.
After pointing out Jenkins in the courtroom, she asked assistant attorney general Mary Cochenour: “Is that the wrong person?”
Jent reminded Eileen Nelson about a telephone conversation she had with her husband earlier this month in which Nelson said: “The garage sale thing is indisputable,” which Jent argued meant there was no way anyone could disprove it because it was so long ago.
Eileen Nelson responded with an address in Butte where the garage sale was held, explained the reason for the sale and said she’d checked with The Montana Standard to see if she could get a copy of their classified ad. She said the paper didn’t save ads from that long ago.
The Montana Innocence Project also called Fred Nelson, 39, who testified that his uncle had bragged about numerous crimes including killing a casino worker by hitting her on the head with a hammer. He said his uncle took him to a spot west of Helena where he said it happened and “thought it was cool” that he got away with it and two other men were convicted.
The state called a man who said he was a cellmate of Lawrence’s for about eight months and testified that Lawrence told him that he and Jenkins killed Meagher. Jeffrey Knapp said Lawrence told him he was mad that he’d been kicked out of the Jackson Creek Saloon and planned to rob the bar, but it was never their intention to kill anyone.
Jent told Knapp that during the time he said he was a cellmate with Jenkins, prison records show there were only single cells on that block and that Knapp was only on the same unit with Jenkins for 13 days. Knapp questioned the accuracy of the records.
Attorneys for the Montana Innocence Project subpoenaed David Nelson. He was sworn in, but invoked his right not to testify and was returned to the prison in Deer Lodge. Jenkins and Lawrence did not testify.