Wisconsin State Journal

Did police frame a convicted man?


February 28, 2009

It’s a story that stretches the bounds of credulity: Police arrest a man, pour blood on him and plant a blood-smeared knife in his truck to frame him for a murder he didn’t commit.

Prosecutors and police then withhold, alter and destroy the evidence that could let the man prove his innocence.

Kenneth Hudson’s account of what happened the day 19-year-old UW-Madison student Shanna Van Dyn Hoven was stabbed to death in Kaukauna in 2000 may seem improbable.

But it’s getting another look after a respected defense attorney sought a new trial a month ago.

In a 67-page motion, attorney James Rebholz cited newly acquired evidence, including sworn testimony from law enforcement officers and expert witnesses, previously withheld police reports and new forensic testing.
Hudson at trial
Serving as his own attorney, Kenneth Hudson, center, cross-examines Kaukauna police Officer Robert Patschke, left, as Outagamie County Sheriff's Deputy Dennis Coe monitors Hudson's actions during his March 2001 murder trial in Appleton.
Combined with what he characterized as inadequate assistance by Hudson’s attorney and faulty rulings by the trial judge, Rebholz wrote, the new material “provides unshakeable evidence the real controversy in this case has not been fully tried.”

Hudson, a roofer with a minor criminal history, was convicted in March 2001 of killing Van Dyn Hoven as she jogged by a quarry near her home.

Prosecutors Vince Biskupic and Carrie Schneider — now district attorney of Outagamie County — presented evidence that Hudson stabbed the young woman and tried to abduct her by pulling her into his dilapidated pickup truck.

Police photographs showed Hudson’s legs and hands covered in what prosecutors said was the victim’s blood.

Van Dyn Hoven’s DNA was found on Hudson’s right hand, and purported blood stains were found on the outside of his truck. Hudson was identified by a witness, David Carnot, who said he was drawn to the quarry by Van Dyn Hoven’s screams and who said Hudson had then tried to run him down.

Hudson was arrested after leading police on a high-speed chase. A knife with Van Dyn Hoven’s blood on it was found on the floor of his truck.

Finally, there was this: Hudson confessed to the killing during an interrogation at the Kaukauna police station, prosecutors said. For most of his five-day trial, Hudson represented himself after half a dozen attorneys either withdrew or were fired by him. Most refused to offer his far-fetched defense.

It took a jury only a few hours to find Hudson guilty of Van Dyn Hoven’s murder.

While serving as his own attorney, Hudson was prevented by Outagamie County Circuit Judge Harold Froehlich from asserting key parts of his defense, Rebholz alleges, because prosecutors withheld key pieces of evidence.

Hudson’s account

It wasn’t until a 2003 post-conviction hearing that Hudson testified for the first time to his version of events: That he came across a grievously wounded and screaming Van Dyn Hoven and helped her into his truck, but she jumped out and collapsed next to the road after seeing Carnot, who lived nearby, come out of the woods with a rake in his hands.

Hudson said he fled in his pickup because he feared Carnot and, when police began chasing him, to avoid arrest for an expired license and possessing marijuana.

After he was pulled over, Hudson claimed, police poured blood on him and planted evidence at the scene and in his truck. Hudson maintains police wanted to pin the crime on him because Carnot, the son of a Kaukauna police officer, also was at the scene and had blood on his leg.

Carnot said the blood was his own, according to police reports and trial testimony.

“Why didn’t they treat him (Carnot) as a suspect?” Hudson, 39, asked in a telephone interview from Green Bay Correctional Institution. “Because they put the blame on me right away.”

The case landed back in circuit court 14 months ago after the state’s 3rd District Court of Appeals ordered Froehlich to hear all of Hudson’s claims and any other issues arising from any newly discovered evidence.

Prosecutor’s response

Some of the allegations in the motion for a new trial repeat charges and offer evidence that Hudson and an earlier attorney, David Cook, raised previously but were never heard in court after another appellate attorney, Chris Gramstrup, declined to pursue them.

Schneider, who prosecuted the case when she was a deputy under then-District Attorney Biskupic, said the motion presents nothing new.

She asked Froehlich during a hearing Feb. 10 to dismiss the motion and bar Hudson from calling any witnesses or introducing any evidence.

“It appears (Hudson) in his motion is raising many of the same claims made during trial and in previous hearings, which the jury rejected and some of which the Court has ruled on previously and denied,” Schneider said in a statement.

Van Dyn Hoven’s father, Steve, said police and prosecutors did an “excellent” job in apprehending and prosecuting Hudson, and he’s confident the jury convicted the right man.

“Whether he (Hudson) is guilty or not is not an issue for us,” Van Dyn Hoven said.

Although not familiar with Hudson’s case, law professor Walter Dickey, director of the Remington Center at the University of Wisconsin Law School, said Cook and Rebholz have solid reputations as criminal-appeals attorneys.

“It’s unthinkable to me that there would not be a factual basis for their assertions,” he said.

Rebholz is a former No. 2 official in the state Public Defender’s Office who has been a private criminal defense attorney in Wauwatosa for 20 years. The agency hired him to handle Hudson’s appeal.

“Dave Cook is as good as they come,” Dickey said. “He’s careful, honest and meticulous ... and Rebholz is the same way.”

 Police log entries

Hudson’s bid for a new trial alleges dozens of instances of misconduct by Schneider, Biskupic and police officers, including Kaukauna Police Chief John Manion.

Manion and Biskupic didn’t return calls and e-mails left at their offices. Among the newly discovered evidence is a Kaukauna Police log and a Hortonville Police report indicating officers discussed the stabbing over the radio prior to Hudson’s arrest — challenging sworn testimony by officers at Hudson’s 2001 trial that they didn’t know at the time that Van Dyn Hoven had been stabbed and therefore would have had no reason to plant a knife in his truck.

Although Hudson and his attorneys made nine requests for the Kaukauna Police Department dispatch tape, the motion said, Biskupic and Schneider repeatedly failed to respond to the demands.

Last year, Schneider informed the defense that the tape was destroyed. Hudson also cites an expert report that refutes sworn testimony from Manion, Kaukauna’s chief of police, that a tape of Hudson’s alleged confession had erased itself. A recent analysis by Steve Cain of Forensic Tape Analysis Inc., concluded such a maneuver was impossible.

“Cain ... determined the tape could not have erased itself as claimed because the equipment did not have the capability to self-rewind and erase and that someone had to manually cause the equipment to erase the tape,” the motion said, adding that “police would not (have) erased ‘evidence’ of the alleged confession.”

Planted evidence?

The motion also charged that Kaukauna police officers planted and photographed the driver-side window crank from Hudson’s truck at the crime scene, then switched it before trial with the passenger-side crank found later by the state Crime Laboratory under the truck’s seat.

The two cranks have different designs.

Rebholz wrote that the switch was done to match the state’s theory that Van Dyn Hoven tried to fight off Hudson from the passenger side of his truck, ripped off the window crank and dropped it next to her portable tape player.

In 2004, Cook discovered that the crank that the Crime Laboratory found in the truck was missing from its sealed evidence bag. Kaukauna police claimed they found it two years later — sitting on the seat of Hudson’s truck, which was still being stored at the police department.

But, state Crime Laboratory analyst John Ertl testified last summer that crank couldn’t have been the same one found under the seat years before because it bore the same Crime Lab tag another analyst had put on the crank found at the crime scene.

Moreover, Ertl testified, the tag on the crank that police claimed they found at the scene didn’t conform to the Crime Lab’s numbering system.

And, the motion noted, the two officers who found Van Dyn Hoven’s body reported seeing the young woman’s portable player and headphones but no window crank — which a Kaukauna police photograph shows lying right next to the player.

Ineffective counsel

Rebholz’s motion also alleges two dozen instances in which Ed Carns, the attorney Froehlich ordered to assist Hudson in his defense, was ineffective.

Among the allegations is that Carns, who was ordered by Froehlich to make a closing argument over Hudson’s objection, “sabotaged” Hudson’s defense by telling the jury that “Hudson stabbed the victim, but had not intended to kill her.”

The attorney also failed to demand forensic evidence that contradicted Carnot’s testimony about being struck by the vehicle, jumping onto a fence and then scrambling over the topper of the truck, Rebholz wrote.

Crime Laboratory analysts found none of Carnot’s DNA or fingerprints on the truck or its topper, the motion said. Carns, now retired, said he doesn’t have a strong recollection of the details of the case, except that he was handed it at the last minute.

He called Hudson a “very difficult” client who failed to persuade a series of attorneys to present his “very strange defense.”

“The amount and type of credible evidence (of Hudson’s guilt) is overwhelming, regardless of all of the points that were raised by the appellate attorney,” Carns said, adding, “I do feel sorry for the victim’s family because this never ends.”

In a phone interview from prison, Hudson said he prays for the Van Dyn Hoven family “every day.” “But I’m not going to give up,” Hudson said. “I’m going to fight for my life.”

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