As far as innocence is concerned, sometimes DNA evidence muddies the water.
Readers of the Malefactor’s Register should know that in order for a person convicted of a crime to prove “actual innocence,” the prisoner must submit evidence that undermines the court’s confidence in the verdict reached by the jury. Appellate rules normally require that this evidence must not have been available to the defendant at the time of the trial.
To many prisoners, DNA testing wasn’t available when they were convicted, giving rise to lots of claims of actual innocence in cases involving biological evidence.
In the case of Ralph Armstrong, a mountain of evidence helped convict him of a brutal rape-murder back in 1981. Some 24 years later, evidence that is invisible to the unaided human eye has caused the Wisconsin Supreme Court to toss out his conviction and sentence of life plus 16 years in favor of a new trial.
The question now is whether the majority in that decision was so blinded by the results of DNA tests that eliminated Armstrong as a source of semen found at the scene that justices ignored long-standing precedent and lowered the bar for inmates who claim exoneration because their DNA was not found at the crime scene:
“The majority opinion is able to side-step our well-established jurisprudence for newly discovered evidence and conclude that Armstrong is entitled to a new trial only by avoiding the crucial analysis of whether this DNA evidence creates a reasonable probability that a different result would be reached at a new trial,” wrote Justice Patience Drake Roggensack in dissent. “Because I conclude that this evidence does not create a reasonable probability that a different result would be reached at a new trial and because I conclude that the real controversy, whether Armstrong raped and murdered Charise Kamps, was fully tried in 1981, I respectfully dissent from the majority opinion.” Armstrong v. State, 2005 Wisc. LEXIS 356 (Dissent).
Justice Louis B. Butler Jr., writing for the majority, found that the DNA results were “relevant to the critical issue of identity” facing jurors, since Armstrong had argued he was somewhere else when the murder occurred.
“This is not evidence that tends to ‘chip away’ at the accumulation of (prosecutors’) evidence. The DNA evidence discredits one of the pivotal pieces of proof forming the very foundation” of the case against Armstrong.
Armstrong, a UW-Madison graduate student who was on parole from New Mexico after serving time for a sodomy conviction and four rape convictions, was found guilty of killing 19-year-old Charise Kamps, whose battered and bloody body was found nude with a bathrobe tie draped across her back in her apartment. A pathologist testified that it was likely she died from strangulation and was beaten with a blunt object.
Charise had been in the company of Armstrong, his brother, Steve, Armstrong’s fiance, Jane May, and others the evening of June 23, 1980. Following a party at May’s and dinner at a Madison restaurant, Armstrong, Kamps and May went to a friend’s house and then back to May’s to watch television. While at the party, several witnesses would testify that Charise and Armstrong were “flirting.” Their recollections, unfortunately aren’t very clear (which one would expect at a party where there was pot, cocaine and alcohol) and are contradictory about who was flirting with whom.
According to testimony at his trial, shortly thereafter, Armstrong and Charise went to her apartment, where they had a drink and listened to records while waiting to complete a cocaine deal.
They then went out, purchased cocaine and then returned to May’s house. At approximately 10:45 p.m., according to the trial testimony of both Armstrong and May, Charise left May’s to return to her apartment.
The latest time Charise was known to be alive was between 11 and 11:30 p.m., when she called a friend in Prairie du Chien. Dr. Robert Huntington, a pathologist, placed the time of the victim’s death at between midnight and 3:30 a.m.
Her body was found when Charise’s boyfriend, Brian Dillman, tried calling Charise from Iowa early in the morning of June 24, 1980, but the phone line was busy. After repeated unsuccessful attempts, he called Jane May and asked her to check on Charise, at which time the woman’s body was found. (About 12:40 p.m. on June 24, 1980.)
She then went to the shop she managed and notified the police of the murder. She also called Armstrong, told him what happened and asked him to come to Charise’s apartment, which he did.
At his trial, Armstrong testified that he left May’s flat for his apartment ten to twenty minutes after Charise left, but ultimately returned to May’s by 1 a.m. on June 24, 1980. May testified Armstrong could have arrived back at her place as late as 3:30 a.m. but also admitted she had told friends that he had not returned all night. She later explained that this was a false statement, in her words, a “flip remark.”
Prosecutors refuted Armstrong’s story that he was back at May’s apartment by 1 a.m. by calling a pair of witnesses who would have seen or heard Armstrong if he had entered at that hour.
“Terry Fink testified that the musician Jackson Browne was making a promotional film on State Street, including filming outside the Pipefitter. Fink stated that from five or ten minutes before 1:00 a.m. until 1:45 a.m., she was on the sidewalk within ten feet of the front apartment door, observing the film crew and chatting with friends. Fink testified that she never saw Armstrong in the area or enter the apartments during that time,” according to the Wisconsin Supreme Court’s majority opinion.
“Jeff Zuba was the resident manager for the apartments directly above the Pipefitter. … Zuba testified that his apartment door was opposite the door at the top of the front staircase and that he could hear anyone entering or leaving the building. … He did not see or hear Armstrong leave or return to the building.”
The state also presented two witnesses to support its theory that Armstrong went to Charise’s apartment after midnight, instead of before 10:00 p.m., as Armstrong asserted.
The first witness was Laura Chafee. She lived directly below the apartment where Charise lived and heard some music, which seemed to be coming from upstairs, starting at about 12:05 a.m. Detectives from the Madison Police Department had Chafee sit in her apartment and listen to music (Grand Funk Railroad) played in Charise’s apartment. Chafee testified that the sound was similar. Josef Rut, a Madison Police Officer, testified that he removed a Grand Funk album from Charise’s stereo. Dillman testified that Armstrong had once played Grand Funk Survival for him. Dillman said that a copy of the album was on Charise’s turntable when he accompanied investigators on a walk-through of her apartment several days after her murder. Another witness who worked at the Pipefitter and was at May’s party on June 23, also testified that Armstrong had once told her that Grand Funk Survival was among his favorites and that he played the album for her.
For the second witness, police relied on the hypnotically-enhanced, reluctant testimony of a transvestite named Riccie Orebia, who lived across the street from Charise Kamps and who spent the night of June 23 sitting on his/her (the courts disagree on the correct pronoun to use for Riccie) porch watching the world go by between 10:30 p.m. and 4 a.m.
Although he/she did not have a watch (Orebia had asked a passer-by what time it was and was told 11:45 p.m.), Orebia estimated that at about 12:30 p.m., he/she saw a white car with a black top pass on West Gorham and described the driver as having dark, shoulder-length hair. Orebia saw the car pass a second time and park out of view across the street.
About five or ten minutes later, Orebia saw a person, described as “lean and very muscular,” walk from the direction of the parking lot, cross the street, and enter Charise’s apartment building. About five to ten minutes after that, the same man left the building and headed back the direction he had come. Orebia testified that another five minutes passed, and the same person crossed the street, entered the building a second time, and then, after staying inside another five minutes, left again this time without wearing a shirt. Orebia stated that five more minutes passed, and the same person ran across the street to the building a third time, stayed for about 20 minutes, and then left running very fast, “shining” as if he were oily. Orebia then observed the black-over-white car speeding away from the parking lot.
Orebia’s description of the man — shoulder-length hair, lean and muscular, and later “shining” — was brought out through hypnosis, a recognized, but very delicate method of interrogating witnesses. The hypnotist must be very careful not to “plant” information or encourage “confabulation,” defined as the construction of false memories.
Unfortunately, some of Orebia’s information may have been tainted, although the hypnotist who conducted the interrogation denies this.
“During his testimony, Kihlstrom presented excerpts from the videotaped session between McKinley and Orebia. Kihlstrom noted that Lombardo was in the room during the session, and that Orebia initially described the suspect as being five-feet, three inches to five-feet five-inches tall, but McKinley suggestively inquired about a height of six feet tall until Orebia agreed with that height,” the Supreme Court Opinion states. “Armstrong’s attorney stated that Armstrong is six-feet, two inches tall.”
Orebia identified Armstrong in a line-up conducted at the scene of the crime, but Armstrong was not cooperative at the line up and had to be dragged to the scene, obviously setting himself apart from the other men (who were wearing wigs, by the way). Riccie Orebia later gave two statements to Armstrong’s attorneys attesting that their client was not the man he/she saw at the crime scene.
“However, at trial Orebia recanted his recantation and stated that he was positive that Armstrong was the person he saw enter and leave Kamps’ apartment building three times on the night of June 24, 1980,” the Supreme Court majority wrote. “Orebia testified that the statements he gave on November 5 and 10, 1980, were purposely untruthful, told as deliberate lies to undermine his credibility as a witness and to hopefully result in his withdrawal as a witness.”
Armstrong voluntarily submitted to a test that revealed traces of blood under his fingernails, toenails and watch band. He told authorities that the blood came from a cut on his knee, as well as the fact that he had engaged in sexual relations with his girlfriend during her menstrual period.
Dillman testified that he loaned Armstrong $500 for the purchase of a car (similar to the one described by Riccie Orebia), and that while speaking with Charise at the party, he overheard Armstrong giving her money and indicating that it was $400 in partial repayment for the loan. May testified that both Charise and Armstrong had told her about the $400 repayment.
However, when police searched the apartment, no money was found.
“The State theorized that after Armstrong murdered Kamps, he stole the $400 from Kamps that he had given her earlier in the evening,” the majority opinion says in the summary of the facts of the case. “In the early afternoon of June 24, 1980, the State established that Armstrong deposited $315 in cash into his bank account. In both the opening and closing statements, the State emphasized the $400 missing from Kamps’ apartment and Armstrong’s $ 315 cash deposit the following afternoon, asserting that both instances together were an indication of Armstrong’s guilt.”
One officer testified at the trial that he and another officer looked in “just about any conceivable place we figured there would be money hidden. Drawers, dressers, cabinets, anything,” including clothing, in Kamps’ apartment without finding the $ 400.
In his defense, Armstrong testified that his brother, Steve, gave him $ 300, in repayment for clothes Armstrong bought him and for Steve’s summer rent.
However, it was the trace evidence: semen from a “secretor” found at the scene — someone whose blood type is identifiable via semen (about 80 percent of the North American male population) and pubic hair consistent with Armstrong’s that was central to the State’s case.
A forensic scientist testified at trial that testified that there are 60 to 70 characteristics she compares between hairs to determine whether two are “similar” or “consistent.” A majority is needed to determine two hairs are “consistent.”
After reviewing the record, the Wisconsin Court of Appeals concluded that “despite the closeness of this case, Armstrong has not persuaded us that the newly discovered evidence would reasonably cause a new jury to discredit the incriminating circumstantial evidence.”
Although “a new jury could reach a different verdict,…Armstrong has not shown that the newly discovered evidence clearly and convincingly creates a reasonable probability that the outcome would be different on retrial.”
The Wisconsin Supreme Court disagreed, tossing out the need to demonstrate by “clear and convincing evidence” that another jury might reach a different conclusion.