Let suit proceed, federal judge rules

Man claims investigation reckless

— A federal judge cleared the way Monday for a lawsuit filed by the boyfriend of murder victim Nona Dirksmeyer to proceed to trial.

U.S. District Judge James M. Moody ruled on a lawsuit filed by Kevin Jones in December against Russellville Police detective Mark Frost and former Russellville Police Chief James Bacon.

A jury acquitted Jones,now 26, in 2007 of bludgeoning Dirksmeyer, 19, to death in her Russellville apartment in 2005.

Moody declined to grant the defendants’ motions to dismiss Jones’ claim that his due-process rights were violated under the 14th Amendment to the U.S. Constitution.

The judge wrote that Jones has provided “sufficient facts to set forth a Fourteenth Amendment due process claim for reckless investigation.”

Jones’ attorney, Chuck Gibson of Dermott, said, “We believe that the judge made the right call and, of course, we’re pleased with the ruling. We see the case moving forward.”

Gibson said the case is scheduled for trial starting Feb. 13.

In August 2008, about a year after Jones’ acquittal, police arrested another suspect in the crime - one of Dirksmeyer’s neighbors, Gary Dunn, now 32.

Twice, Dunn went on trial and twice the case ended in mistrials because of hung juries.

A judge later dismissed the charge against Dunn, who also is a defendant in Jones’ lawsuit.

The lawsuit accuses Bacon and Frost of conspiring to withhold and falsify evidence in an effort to prosecute Jones.

Jones contends Frost had investigated Dunn’s alibi and “determined it was false” but “lied to Prosecutor David Gibbons by telling him that Dunn’s alibi cleared him.” Jones said Bacon also knew the alibi was false but didn’t tell Gibbons, who prosecuted Jones.

Special state prosecutors handled the Dunn trials.

In the ruling Monday, Moody wrote of Jones’ allegations, “If true, there can be no argument as to whether a reasonable law enforcement officer would have [known] that these actions violated [Jones’] rights under the Fourteenth Amendment.”

Moody also rejected a defense request to toss the case based upon the statute of limitations.

Jones had cited a gag or-der in the Dunn case and said it had “thwarted diligent attempts by [Jones’] attorney to investigate the facts of this case,” Moody wrote.

Moody also refused to dismiss the case on the ground of “qualified immunity,” a concept in which government officials are sometimes shielded from civil liability damages.

The judge, however, dismissed Jones’ arguments under the fifth and sixth amendments to the U.S. Constitution. He noted that the defendants said Jones had not set forth claims under either amendment in his complaint, and the judge agreed.

Of the ruling on the 14th Amendment issue, an attorney who represents Frost said the court has to “assume that all of the facts [presented by the plaintiff], however fanciful they are ... are true” at this point in the case.

“Obviously, we have evidence and facts that we’ll present to show that they are far from true,” said the attorney, Russell Allen Wood of Russellville.

Wood, who does not represent Bacon, also said, “It’s very unusual for a motion to dismiss to be granted” at this stage. “We don’t view this as a setback.”

Frost also is represented by John Wilkerson, an attorney with the Arkansas Municipal League. Wilkerson, who also is handling Bacon’s case, said in an e-mail that he did not comment on ongoing litigation.

Northwest Arkansas, Pages 7 on 06/26/2012

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