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By Nancy West, InDepthNH.org
CONCORD, NH — Jim Dale has lost his latest case in U.S. District Court, but plans to further appeal his second-degree murder conviction for the rape and murder of a six-year-old girl in Hopkinton more than 20 years ago.
Dale, 60, who is adamant that he didn’t rape and smother Elizabeth Knapp on July 3, 1997, had argued a half dozen points that he claims show he didn’t do it, including alleging a romantic relationship between his lawyer and the prosecutor. Dale said he was originally denied a fair trial before Judge Kathleen McGuire, who also denied his 2014 motion seeking a new trial in Merrimack County Superior Court in Concord.
One of his major appeal complaints was that Elizabeth’s mother, Ruth Knapp, wasn’t called to testify at his trial. She had told police the morning she found Elizabeth dead in bed that she witnessed her then-live in boyfriend Richard Buchanan kill Elizabeth and that she tried to stop him.
Buchanan was arrested, but later released when DNA test results ruled him out as a suspect. A small amount of DNA implicated Dale, who lived upstairs in an apartment building from Elizabeth and her family at the time, but his appeal argued his lawyer failed to call an expert to refute the DNA evidence against him.
Because he was late in filing his federal appeal, Dale had to show a credible claim of “actual innocence,” according to U.S. District Court Judge Steven McAuliffe, who said Dale didn’t do so, making his petition time barred.
“That a witness may have been called that may have reiterated earlier testimony in a different proceeding to the effect that she saw a different person commit the rape and murder at issue in this case, does not amount to a credible claim of petitioner’s actual innocence, particularly where the jury was made aware of the alternate perpetrator theory, as well as evidence of DNA testing excluding the other person as the perpetrator, but not excluding petitioner,” McAuliffe wrote in an order last month.
“What is required is not evidence upon which a jury might have found reasonable doubt, but evidence credibly supporting a claim of actual innocence of the crimes charged,” McAuliffe wrote.
McAuliffe granted the state’s motion for summary judgment filed by Assistant Attorney General Elizabeth Woodcock, and declined to issue a certificate of appealability that may have indicated it was a close call or involved an important issue to resolve in further proceedings.
Dale has told InDepthNH.org previously that he will keep fighting because he is innocent.
He has already filed with the First Circuit Court of Appeals in Boston, but he will need a certificate of appealability to continue.
“(Dale) is ordered to file a memorandum requesting issuance of a certificate of appealability in this court by April 25, 2018,” according to the First Circuit Court order.
The memorandum should state specific facts, reasons, and issues supporting the issuance of a certificate. For one to be granted, Dale must make substantial showing of the denial of a constitutional right, the order states.
After April 25, whether or not Dale has filed a memorandum, the case will be submitted to the court for a determination as to whether a certificate should be issued. If a certificate is denied, the appeal will be terminated, the First Circuit Court order stated.
Dale has admitted to being someone who drank too much and assaulted people for little or no reason most of his adult life, but said he wouldn’t have hurt a child and insists he didn’t kill Elizabeth. Even if he were to be exonerated in Elizabeth’s murder, Dale would still have to serve a minimum of 21 ½ years in Pennsylvania for trying to kill an inmate while he was incarcerated there.
He was sentenced to serve a minimum of 60 years for the murder and rape of Elizabeth Knapp. State law at the time allowed for a capital murder death penalty charge to be brought in such a case, but prosecutors brought a second-degree murder charge instead.
“I didn’t do it,” Dale said the first time he spoke with InDepthNH.org two years ago at the Northern New Hampshire Correctional Facility in Berlin. “Yes, it’s the honest-to-God’s truth. I’ve done a lot of things. I should have been doing life years ago, but not for this.”
When he appealed to Merrimack County Superior Court four years ago, his then-lawyer Robin Melone found a letter that backed Dale’s claim regarding an appeal in 2004 in which his lawyer told Dale he didn’t have to appear at a hearing before Judge McGuire by video. Dale wanted to appear in person, but was being held in a Pennsylvania prison at the time.
McGuire dismissed the petition because Dale refused to appear by video and the attorney didn’t explain what had happened.
McGuire dismissed Dale’s 2014 petition and a motion to reconsider saying they were untimely and barred by laches, which means Dale delayed too long in seeking relief.
In that 2014 appeal, new evidence was presented that Dale’s trial attorney, Nicholas Brodich, and then-prosecutor, Kelly Ayotte, admitted they were romantically involved within weeks of Dale’s sentencing. They were both single at the time and insisted nothing unethical happened.
McGuire ruled that, “Even if an actual conflict still existed when Ayotte and Brodich were dating, (Dale) has not met his burden of proving” it would have impacted his case.
McGuire also found that the decision to not call Ruth Knapp to the witness stand “was reasonable and constituted sound trial strategy.” McGuire quoted Brodich as saying that Ruth Knapp had given three or four different versions of the events and that she appeared hostile to the defense and had a “motive to try to help the attorneys general prosecuting the case.”
“Attorney Brodich indicated that these factors played a crucial role in trial counsel’s decision not to call her as a witness during the trial,” McGuire wrote.
Melone didn’t return a call seeking comment for this story, but previously said there were questions raised that weren’t addressed about the accuracy of DNA tests.
Dale has sought help from attorney Barry Scheck’s Innocence Project regarding the DNA and is waiting to hear back after sending them information they requested.
Dale said he is a different man today. He mentors young men at the prison and tries to share what he has learned about the legal process.