CONCORD – A federal magistrate judge has ordered the Attorney General’s Office to answer convicted child killer Jim Dale’s motion seeking a new trial or plead to the ineffective counsel claims that he has made.
Judge Andrea K. Johnstone, based in U.S, District Court in Concord, ruled in favor of Dale on Nov. 17 saying although he is more than 14 years beyond the statute of limitations in filing for federal relief, he is arguing a “miscarriage of justice” exception to the time limit.
Dale, 59, who was convicted in 1999 of the July 3, 1997, rape and murder of six-year-old Elizabeth Knapp in Contoocook, must make a “credible showing of actual innocence,” Johnstone wrote.
“In particular he highlights the victim’s mother’s statements to investigators in which she said she saw Richard Buchanan raping the victim on the night at issue,” Johnstone wrote.
Buchanan was the live-in boyfriend of the victim’s mother, Ruth Knapp, in 1997 when the murder occurred. He was arrested and held pretrial for five months before he was released when prosecutors said DNA evidence ruled him out as a suspect. Neither Knapp nor Buchanan was called as a witness at Dale’s trial.
Dale, who is incarcerated at the Northern NH Correctional Facility in Berlin, was thrilled with Johnstone’s ruling.
“Finally, someone is listening to the truth,” Dale said in a call from the prison.
Dale, who is now representing himself, was convicted of second-degree murder and sentenced to 40 to 80 years on the murder and two 10- to 20-year terms on the aggravated sexual-assault convictions.
Dale was unsuccessful two years ago in state court seeking a new trial in which he also argued ineffective counsel by the defense attorneys at his original trial. He was originally represented at trial by Nicholas Brodich and Jim Moir. Dale argued that Brodich and then prosecutor Kelly Ayotte, were romantically involved. Now a U.S. Senator, Ayotte recently lost the Nov. 8 election to Gov. Maggie Hassan.
Ayotte and Brodich, who were both unmarried at the time, admitted in court records that they dated briefly, but they both said their relationship happened well after Dale was sentenced in 1999. Dale also argued that important defense witnesses such as Ruth Knapp were not called to testify and no expert was called to refute DNA evidence.
Dale was represented in the appeal two years ago by Nashua Attorney Robin Melone. On Thursday, Dale filed a motion asking to have counsel appointed to help him in federal court this time around. He said he hopes the court will appoint Melone because she is so familiar with his case.
Melone found new evidence two years ago during the state appeal. It was a letter that showed Dale was told by a previous attorney, Brian McEvoy, that he didn’t have to appear via video at an appeals hearing in a New Hampshire court. At the time, Dale was incarcerated in a Pennsylvania prison on the New Hampshire convictions on an interstate agreement.
Because he didn’t appear, Judge Kathleen McGuire dismissed that appeal without hearing it. Dale had wanted to be transported to New Hampshire to appear in person.
Dale, who lived in an apartment upstairs from the victim in 1997, has insisted on his innocence, although he concedes he had a drinking problem and a long criminal record. He also admits he faces a long prison sentence in Pennsylvania if he were to ever be exonerated in New Hampshire for trying to kill an inmate while he was incarcerated there.
Melone said she disagreed with Judge McGuire’s decision two years ago on Dale’s last state appeal.
“The statute of limitations was the hurdle we were unable to get over in state court, though I respectfully disagree with the judge’s ruling on that issue,” Melone said.
She was encouraged that Judge Johnstone required the state Attorney General’s Office to respond.
“How they respond will set the stage for what happens next. This is a good first step for Jim,” Melone said.
Deputy Attorney General Ann Rice didn’t respond to a request for comment.
In her order, Judge Johnstone said it was not clear if statements made by Ruth Knapp about Buchanan before Dale’s trial, if true, exonerated Dale. “This court cannot conclude from the limited portions of the state court records before it that Dale cannot state a credible claim of actual innocence based on the existence of those statements.”
Johnstone also took note of the evidence against Dale that was presented at trial. It included Dale confessing to a cellmate and DNA evidence that found the probability that the sperm found on the victim came from a white man other than Dale was one in three million.