By Patrick Winderl/Havre Daily Newsemail@example.com
A forensic expert hired by attorneys for the man accused of fatally shooting a Blaine County Sheriff's deputy last year said physical evidence suggests the deputy was actually shot by another law enforcement officer, according to documents filed in state District Court.
In another development in the case of Lawrence Dean Jackson Jr., a judge rejected arguments by Jackson's attorneys that Montana's death penalty is unconstitutional, meaning prosecutors can continue to seek Jackson's execution if he is convicted.
Jackson, 26, is charged with one count of deliberate homicide in the May 29, 2003, shooting death of deputy Joshua Rutherford and one count of attempted deliberate homicide in the wounding of deputy Loren Janis.
Rutherford and Janis had been called to respond to a domestic disturbance at a Harlem residence. According to the charging document, Rutherford was killed after he chased Jackson through a field. Prosecutors allege Jackson wrestled Rutherford's Glock .40-caliber service handgun away from the deputy and shot him with it, then turned the gun on Janis, who returned fire.
Rutherford was killed by a single gunshot wound to the chest.
Forensic expert Kay Sweeney disputes that account. Sweeney, in a letter to Jackson's attorneys that's included in the court file, said he believes Rutherford was likely killed by a bullet fired by Janis.
Sweeney was hired by Jackson's court-appointed attorneys - Havre lawyer Bob Peterson and Helena lawyer Ed Sheehy - to examine evidence in the case. Sweeney is a former scientist at the Washington State Crime Lab and has more than 33 years of experience in law enforcement and forensic science.
In the letter, Sweeney said part of his examination centered on the bullet wound to Rutherford's chest. Autopsy and other post-mortem photos show the wound to be "irregular and elliptical," while most entry gunshot wounds are perfectly round or nearly so, he wrote.
He said the bullet appeared to have hit another object before it struck Rutherford.
The letter said Sweeney examined the shirt Rutherford was wearing the night he was killed to look for particles or residue that might indicate whether the bullet struck another object before it hit Rutherford. Near the bullet hole in the front of the shirt, Sweeney found microscopic particulates of fatty tissue, the letter said.
The fatty globules "most likely originated from the wound on Mr. Jackson's right waist area, which has the characteristics of a bullet graze," Sweeney said in the letter.
"This very likely means that when Deputy Janis fired at Mr. Jackson, he grazed Mr. Jackson's right side and the bullet continued on into the left chest of Deputy Rutherford while Rutherford had Mr. Jackson in a bear hug around the waist."
The grazing contact would "cause the bullet to begin to tumble and thereby enter Deputy Rutherford's chest in an orientation at least slightly tilted, relative to the direction of flight, producing an elliptical entry wound," Sweeney said.
Sweeney's letter recommended that the tissue samples be sent to an independent laboratory in California for DNA analysis.
Jackson's attorneys asked that the evidence be sent to the lab, a request that has been approved by District Judge John McKeon.
Blaine County Attorney Yvonne Laird could not be reached for comment this morning.
On July 13, McKeon ruled that prosecutors could seek the death penalty for Jackson, bringing closure to an issue that arose last October when defense attorneys filed a motion asking the judge to declare Montana's death penalty statutes unconstitutional.
Jackson's trial is scheduled to begin next month in Missoula.