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Judges recused in '88 Erie slaying case

Sunday, January 19, 2003

The Associated Press

ERIE, Pa. -- Investigators say they've always known who killed 25-year-old Janine Kirk, yet more than 14 years after she was found slain on a Lake Erie beach, the case remains unresolved.

The case has become so ingrained in the Erie County legal system that most current judges had some role in the investigation as up-and-coming prosecutors in the district attorney's office.

Prosecutors and defense attorneys were awaiting word from the court about what to do after a sixth judge recused herself Jan. 9 because she was too close to a key participant. Judge Stephanie Domitrovich removed herself from the trial, scheduled to begin this week, when she learned her colleague, President Judge William Cunningham, would be asked to testify about why he sought the help of a psychic in the case when he was district attorney.

The current district attorney vowed to settle the case once and for all before taking office in 2000, and counts among his witnesses an FBI profiler from Quantico, Va., and Thomas Noguchi, the former chief medical examiner for Los Angeles County, often called the "Coroner to the Stars."

District Attorney Brad Foulk said he could not talk about the case until he learned who would preside over the trial.

Kirk was found partially buried in the sand at Presque Isle State Park by tourists on June 25, 1988. An initial autopsy indicated Kirk was forcibly drowned.

Even before that autopsy, investigators zeroed in on Kirk's boyfriend, James Michael Fleming, who has continuously said he had nothing to do with her death.

Several hours after Kirk was found, police said they received a frantic call from Fleming, telling them he had seen a news report that a young woman was dead.

Fleming told police his girlfriend failed to show up at a nearby amusement park the day before, where the two had agreed to meet, authorities said.

Asked to describe his girlfriend, police said Fleming, who had not seen her that day, told them she was 5 feet, 6 inches tall, about 118 pounds and wearing an aqua-colored bikini. Prosecutors say it was the final part of that description that points to Fleming as the killer.

The news report did not describe what Kirk was wearing and only her killer would know about the bikini, police said.

Yet prosecutors did not charge Fleming for 12 years, and key players, including the first state park police officer to arrive on the scene and one of two state troopers to first investigate the crime, are dead.

So is an expert who provided testimony to a grand jury assembled in 1990. The grand jury's findings were not released, but no charges were filed until August 2000 -- 12 years after the slaying.

Defense attorney Tim Lucas is seeking to have the homicide charge against Fleming thrown out, saying prosecutors delayed filing charges all these years to gain an advantage.

"There is no new evidence here, just new experts," Lucas said. "There is an advantage in that people involved in the initial investigation are gone and others have moved on, memories faded."

Fleming knew the color of Kirk's favorite bikini and that if it was her found on the beach, it was likely she was wearing it, Lucas said.

Among the new experts is Noguchi, who performed or oversaw the autopsies of Marilyn Monroe, Natalie Wood and Robert F. Kennedy, and who did a second autopsy on Kirk after her body was exhumed in 1990.

Noguchi's report refuted the first autopsy. He said Kirk was beaten and stabbed to death, not drowned, raising questions about where Kirk died.

Prosecutors are also relying on the testimony of Charles Dorsey, a specialist from the bureau's National Center for Analysis of Violent Crime.

Dorsey examined a mirror from Kirk's apartment on which Fleming had written with soap the approximate times he said he was in her apartment, and messages asking her to call.

Dorsey said the messages were "self-serving," intended to deceive investigators as to Fleming's whereabouts, which have never been fully explained, according to the affidavit.

Michelle Voelker, Kirk's friend, also said Fleming was physically abusive, "explosive and verbally abusive," according to the affidavit.

Lucas has said no one witnessed any physical abuse.

Fleming moved out of Erie, but lives in nearby Millcreek Township, where he works at a supermarket. He has since married and has a grade-school-aged child.

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