Arkansas Court Allows Time for Discovery in Murder Case

July 7, 2008 - 7:02 PM

( - During a routine hearing Friday, Benton County Circuit Judge David Clinger ruled that prosecutors may seek the death penalty in a case against two men accused of murdering a 13-year-old Arkansas boy. He also postponed a hearing on the facts of the case until January 13th, allowing lawyers more time for discovery.

"The prosecutor's file is not complete, so the judge decided to hold off on some defense motions until we see a complete prosecutor's file. Judge Clinger told us to report to him before the 13th if we needed more time," Tim Buckley, who is defending Davis Don Carpenter, told

Some defense motions include questions on whether the death penalty is constitutional. Among the defense motions were requests to declare Arkansas's death penalty unconstitutional as "cruel and unusual punishment," and because sentencing provisions don't allow a jury to show mercy.

Carpenter, 38, and Joshua Macave Brown, 22, are accused of killing Jesse Dirkhising, who died Sept. 26. Jesse lived at Prairie Grove, about 30 miles away from Rogers.

Rogers police were called to an apartment shared by Carpenter and Brown in the early morning hours of Sept. 26 and found Dirkhising's body on the floor of a bedroom. The boy's mouth was blue and he didn't respond to officers. Duct tape was wrapped around his right hand and an empty prescription bottle was found nearby, police say. The two men were obviously distraught and upset when the medics and police arrived, police say.

According to court records, Brown, after telling officers he was Carpenter's lover, said he and Carpenter had tied Dirkhising's hands behind his back, placed a pair of underwear in the boy's mouth and secured it with duct tape. He said they also placed belts around Dirkhising's legs and ankles and then sodomized him with a number of items. An autopsy indicated Dirkhising died of asphyxiation.

Under Arkansas law, when seeking the death penalty, prosecutors don't have to show the alleged perpetrators intended to kill their victim.

According to the Arkansas capital murder statute, if in the commission of one crime - in this case the alleged rape of a minor - someone dies under circumstances "manifesting extreme indifference to the value of human life," prosecutors can seek the death penalty.

"It's akin to when someone kidnaps a person with the intention of holding that person to ransom and they put the victim in the trunk of a car to transport them to where they could hold them, and the person suffocates in the trunk of the car. Obviously the kidnapper didn't intend to kill the person, but that can be capital murder also," a lawyer familiar with the case told

The men are being held without bond. A trial is set for April 10.