Bembenek evidence withheld, two say

DEE J. HALL
608-252-6132
June 2, 2006

The lawyer, Mary Woehrer, contends that Bembenek's conviction should be overturned because, "Put together, there's no evidence left to convict this woman. The whole case was based on fabrication."

Two state Crime Laboratory officials acknowledged key omissions in testimony and reports they generated in the Bembenek case.

The two analysts, deposed last summer, acknowledged that some evidence Bembenek's attorneys call important to the case was withheld, including:

Indications that Christine Schultz may have been sexually assaulted.

Tests done in 1981 linked the murder to a Milwaukee Police Department gun - not the weapon that prosecutors alleged Bembenek used.

Two of three crime lab officials deposed - including the head of the state Crime Laboratory in Milwaukee - also gave conflicting sworn statements about missing bullets that were used to help convict Bembenek, now 47.

The depositions - obtained by the State Journal this week - were gathered as part of Bembenek's $60 million federal lawsuit alleging officials conspired to frame her for the murder of Christine Schultz, the ex-wife of the man Bembenek was then married to. The suit, filed in 2004, alleges that officials violated Bembenek's civil rights by falsely prosecuting her for the May 28, 1981, murder of Schultz, who was found in her home bound, gagged and shot in the back at close range.

In 1990, Bembenek - who at the time was known by the nickname "Bambi" - escaped to Canada and was captured three months later and eventually returned to Wisconsin. Bembenek was released in 1992 after agreeing to plead no contest to second-degree murder and was sentenced to the time she'd already served in prison. Her trial and escape garnered national media attention.

In a deposition last June, Diane Hanson, a former state crime lab serology analyst, admitted that she withheld the evidence that Christine Schultz may have been sexually assaulted - evidence that if disclosed in 1981 would have shifted suspicion away from Bembenek and possibly exonerated her, according to the associate medical examiner who conducted the autopsy on Schultz.

Hanson acknowledged she never gave the evidence to her boss at the time, Dr. Elaine Samuels, who performed the autopsy. Samuels said in a December 2003 affidavit that had she known about the evidence, she would've ruled that Schultz's death was likely "a sexual assault/homicide . . . (and) the murderer was a male."

Samuels now works on behalf of Bembenek's defense. Hanson left the crime lab in 1984 and now works for the Florida Department of Law Enforcement's crime laboratory in Tampa.

Bembenek was convicted after prosecutors convinced jurors the murder weapon was Milwaukee Police Officer Elfred Schultz's off-duty gun, a weapon that Bembenek - his wife - had access to. But in a deposition last June, former crime lab employee Monty Lutz admitted that another weapon submitted in the case - Elfred Schultz's police- issued gun - had blood on it, later found to be the same type as the victim's.

Lutz also acknowledged that crime lab reports he supervised were changed to make it appear that the murder bullet came from the off-duty weapon when, in fact, the initial reports identified it as matching Elfred Schultz's police-issued gun. Lutz retired from the crime lab in 1999.

"Mr. Lutz hid evidence of the ballistics match with Elfred Schultz's on-duty gun from his official report," Woehrer, Bembenek's attorney, said in a federal court document. She added that Lutz created "a false ballistics match with Elfred Schultz's off-duty gun (thus) implicating Ms. Bembenek."

Michael J. Camp, the head of the state crime lab's Milwaukee office, said in deposition taken last summer that missing test bullets used to help convict Bembenek in 1982 were lost in a flood at the lab in 1986. However, Lutz - the analyst that Camp said got rid of the bullets - categorically denied doing so in his own sworn statement.

Woehrer is calling for a federal investigation into the alleged misconduct, saying in a letter to U.S. Attorney Steven Biskupic: "This case involves the most severe form of miscarriage of justice - the intentional conviction of an innocent human being for murder - followed by an on- going cover up that continues today."

Biskupic's deputy, William Lipscomb, acknowledged that his office received Woehrer's letter but declined further comment.

In an interview, Woehrer said she hopes officials will investigate the handling of the Bembenek case. But a spokesman for Attorney General Peg Lautenschlager discounted the allegations of misconduct against the state crime lab, which is part of Lautenschlager's Department of Justice.

"The Department of Justice is aware of Ms. Bembenek's letter to the United States attorney and her complaints about the conduct of certain state Crime Laboratory employees," said Mike Bauer, head of litigation for DOJ. "We believe Bembenek's claims are without merit."

Bembenek is seeking to have her conviction overturned and to be compensated for the 10 years she spent at Taycheedah Correctional Institution. She has named officials from the state crime lab, the Milwaukee Police Department and the Milwaukee County district attorney's office in her federal lawsuit, filed in the U.S. District Court in the Eastern District of Wisconsin. Bembenek also is appealing her conviction in the state Court of Appeals.

In a letter sent to federal court Thursday, Assistant Attorney General Corey Finkelmeyer, who represents the crime lab defendants, said there was no wrongdoing.

"At no point in time during the Bembenek case did any Department of Justice employee manufacture or destroy documents and materials pertinent to any claims or defenses," he wrote.

Finkelmeyer repeated the contention that some ballistics evidence in the 1981 case was lost due to a flood - but that stance is contradicted by Lutz's sworn statement.

Camp said in his deposition that Lutz had disposed of the test-fired bullets, which prosecutors said linked the murder bullet to the gun used to convict Bembenek. But Lutz denied getting rid of the bullets and said he wasn't aware they were missing until years later.

In court documents, Bembenek's attorney said the fact that bullets were missing wasn't revealed until 2003, when Bembenek sought them for independent testing. Woehrer said the "false representations" by Camp that Lutz had disposed of the bullets after the flood in 1986 were part of a "cover up of the missing (ballistics) evidence."

Woehrer said Bembenek never would have agreed to a plea deal had she known of the evidence pointing to her innocence - information uncovered in recent years by Woehrer with the help of investigative consultant Ira Robins.

In court documents, the state's attorneys have sought dismissal of the federal lawsuit, mostly on technical grounds. The attorneys argue that since Bembenek's conviction has never been reversed, she can't prevail in federal court.

In a recent state court filing, the state also argued that DNA testing done in 2003 "does not establish that Christine Schultz was sexually assaulted or that her killer was a man" because the unknown male DNA found on the samples could've been inadvertantly left by a male lab technician or could've been in her body for days before the murder.

New ballistics testing conducted in 2003 also failed to match the alleged murder weapon to the murder bullet. But the state argues the new results don't mean "the ballistics evidence presented at trial was false." In 2004, Milwaukee County Circuit Judge Jeffrey Conen sided with the state, denying Bembenek a new trial.

Woehrer noted that the testimony from one of Christine Schultz's young sons, who had described the person who entered their home and attacked him and his mother as having the voice and hands of a man, as heavy-set and wearing a large wig.

"It was a man who attacked her," Woehrer said in an interview. "The victim's own son said the murderer was a man. He said, 'It wasn't Laurie.' "

Despite setbacks over the past 2 decades, Bembenek expressed hope that she will prevail in her efforts to prove her innocence. In a telephone interview, she said she is left "speechless" by the breadth and depth of the alleged misconduct surrounding her case.

"I can barely believe the level that the corruption got to," said Bembenek, who now lives in the state of Washington. "It blows my mind. It's almost unbelievable."