Judge bars evidence in murder case
ED TRELEVEN 608-252-6134
April 13, 2007
Prosecutors retrying a 1980 murder in Madison cannot use the results of a DNA test on a key piece of evidence because the results were obtained in violation of a court order, a judge ruled Thursday.
Dane County Circuit Judge Daniel Moeser said the state acted in "bad faith" when it went ahead with the testing without notifying the defense and, in the process, used up the material - in violation of the judge's order.
But Moeser declined to dismiss the case against Ralph Armstrong, 54, who is set to be tried in June for the second time for the 1980 murder and rape of UW-Madison student Charise Kamps in her Downtown apartment.
Armstrong was convicted of the crimes in 1981, but the state Supreme Court overturned the convictions and ordered a new trial in 2005 on the strength of DNA evidence that the high court said might prove Armstrong's innocence.
"Dismissal deprives the public of their day in court to prosecute someone the state feels is guilty and dangerous," Moeser wrote in his decision.
The testing, done at the direction of Assistant District Attorney John Norsetter, also harmed Armstrong's ability to defend himself, Moeser wrote, because he won't be able to further test a stain on Kamps' bathrobe belt, which was completely used up by the state's DNA analysis.
Under Moeser's order, issued in December 2005, the defense was to be notified of any evidence testing. Initial tests were done in January 2006, and tests on the bathrobe stain excluded Armstrong as a source of the stain.
But in June, Norsetter directed that more sophisticated tests be conducted. Those found that although Armstrong was not identified as a source of the stain, he also could not be excluded.
Armstrong's attorney, Jerome Buting, contended that if he had been informed of the test, steps might have been taken to prevent contamination or save part of the stain for testing by the defense's own experts.
At a hearing on March 29, police and prosecutors offered no explanation as to why the court's order was violated.
"There is no evidence that Assistant District Attorney Norsetter forgot, was careless, was inadvertent nor that he acted intentionally and with animus," Moeser wrote.
Based on the totality of the record, he wrote, "There is no other conclusion that can be reached other than the subsequent testing in violation of the order was in bad faith."
Moeser granted both sides an opportunity to appeal his decision. Buting said he is still considering what steps to take. Dane County District Attorney Brian Blanchard said Friday his office would have no comment on the case.