Murder charges are dropped in ear-print case

It looks kind of like his ear, he admits, but it's missing a characteristic little bump that sticks out above his ear canal. And making that comparison to try to prove he's a murderer is ridiculous, he said yesterday, just minutes after a judge dismissed charges against him.

"That's a horrible thing to stand there and have someone say you are guilty and you're going to prison the rest of your life," he said. "We all think it can't happen to us."

The 50-year-old Vancouver, Wash., man was the first person in the country to be convicted based on an ear print. Clark County prosecutors claimed he put his ear to a bedroom door, trying to assess whether his former wife's fiance was sleeping before he slipped in to kill him.

But the state Court of Appeals ruled that an ear print isn't conclusive evidence. Kunze's second trial ended last week in a mistrial after a deputy prosecutor mentioned the forbidden subject of Kunze's appeal in front of jurors.

Yesterday, prosecutors said in court documents that they had insufficient evidence for another trial. They still have the option to file the charges again, but said they won't unless they have more to go on.

"It is not the intention of the state to vex, harass or annoy the defendant with future filings absent any substantial new evidence," deputy prosecutor Thomas Duffy wrote.

Superior Court Judge Robert Harris said the state would have to pay all court costs if they ever decided to try Kunze again, according to Kunze's lawyer, John Henry Browne.

Browne, however, had asked him to bar prosecutors from refiling the murder case. He plans to take up that matter with the state Supreme Court, contending prosecutors caused a mistrial deliberately.

Prosecutor Arthur Curtis did not return phone calls about the case.

Kunze has been free on $500,000 bail -- which he will now get back -- since August, after spending four years at the Washington State Penitentiary in Walla Walla. Prosecutors accused him of killing James McCann out of jealousy and confessing the crime to another inmate.

Kunze was initially charged with attacking McCann's young son that same night as well. The boy's description didn't fit Kunze, and he was acquitted on those charges.

McCann, 44, was bludgeoned as he slept inside his Clark County home Dec. 16, 1994. Investigators immediately suspected Kunze, whose ex-wife had told him a few days earlier that she was planning to marry McCann.

Kunze was convicted of aggravated murder in his 1997 trial, but he appealed and won.

"It just goes to show you that innocent people do get convicted," Browne said. "He was just one step away from the death penalty based on junk science and people trying to pad their resume."

Kunze, who lives with his mother and hasn't had a job, now plans to go back to school. He said he hopes to reunite with his children, whom he last saw nearly five years ago through a jail visiting window.

He acknowledged that McCann's relatives are angry that he was set free. They believe he did it and has now gotten away with murder, he said.

But he still contends, after more than six years, that he was at home most of the night McCann was killed. He said he'd never even met McCann and had never been inside his house.

"I was living alone, and it's pretty hard to have an alibi when you're living alone," he said.

Quite simply, he said, "I didn't do it."