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Mistrial Evidence procedure in 1981 murder case prompts judge to throw out guilty verdict By DANI DODGE It took 21 years for William Henry Allen Jr. to be convicted of the 1981 murder and rape of 17-year-old Evelyn Marie Smith. But now that conviction has been thrown out. In a highly unusual ruling Friday, Allen was granted a new trial. A photograph shown to the jury by a prosecution witness at the end of Allen's trial should have been given to the defense attorney in advance, according to a ruling by Jackson County Circuit Judge Patricia Crain. Crain said she didn't believe the violation was intentional or deliberate, but "Because I cannot say that it didn't affect the outcome of the trial, I am granting a new trial." The victim's family was stunned. "There's a part of us that wants to scream and holler 'This is unfair,' " said Smith's brother, Ron Sohnrey. "But what will that do? We were waiting for 21 years now, and now we are waiting again, but this time it will be 21 years and a few months more." "We know deep down inside that if 12 people found him guilty, then he's guilty." Several jurors who attended the hearing said they were disappointed to see their verdict set aside. But Allen's defense attorney was smiling. "Now Mr. Allen has an opportunity for a fair trial, which is all we wanted to begin with," said David Orf. Allen, 37, of Oakley, Calif., was convicted on Jan. 28 of raping and killing Smith in April 1981 at what was then Medford Mid High School, now South Medford High School. Allen had picked up Smith on a Saturday night in downtown Medford. The two went to the Mid High softball fields to drink and talk. The next day, Smith's badly bruised nude body was found in a tunnel leading to the locker rooms. At the time, Allen told police he never had sex with Smith and had left her on the second base of the baseball field when he got tired. Police never had enough evidence to arrest him. But recent advances in technology allowed police to match Allen's DNA with the sperm found in Smith's body and he was arrested on the 20th anniversary of the murder while on his way to his job as a steelworker. Allen was charged with three counts of murder: murder, felony murder and aggravated murder. After two days of deliberation, a 12-person jury found Allen guilty only of felony murder, which means he killed Smith in the course of raping her. The verdict is now voided. "I'm disappointed, but basically we know what we have to do next and that's retry Mr. Allen," said Deputy District Attorney Beth Heckert. One juror described the ruling as "unbelievable." "Not one single piece of evidence swayed us one way or another," the juror said. The jury foreman, though, was more circumspect. "There were 12 people dedicated to finding the truth and doing their job," he said. "We were absolutely confident in the verdict." "But if mistakes were made by the prosecution, the judge didn't have a choice because she wasn't in the room when we were making the decision." The jury foreman added he believes the verdict would have been the same even if they had never seen the photograph in dispute. Both jurors asked that their names not be published. The photograph in question was a picture of the Mid High baseball dugout. While on the stand, Allen testified that he really wasn't on second base with Smith, but actually had sex with her in a dugout. To prove he was lying, Heckert called former Mid High coach Richard McReynolds to the stand. He carried in photos that he said showed what the dugout looked like in 1981. It was concrete and completely fenced. McReynolds testified it would have been locked. So Allen couldn't have gotten inside. Orf said because he wasn't given the photos early in the trial when Heckert first got them, he wasn't able to research their veracity. His investigator later found other photographs from 1981 that showed the dugout was wood, not concrete, and accessible, Orf's motion states. Heckert argued that though the dugouts may have been made of concrete and not wood in 1981, they were still inaccessible and that was the most important point. Judge Crain said those were not questions for her to decide. "The photos were used extensively in final arguments," Crain said. "There is still some controversy over the dugout ... that should have been represented to the jury." A new trial is expected within the year. The cost of the first trial has not yet been determined. Reach reporter Dani Dodge at 776-4471, or e-mail [email protected] Mail Tribune Home | Ottaway Newspapers, Inc. | Dow Jones & Co., Inc. | Privacy | Contact Us Copyright � 2001 Mail Tribune, Inc.