John Birdsall will often take a case on that many lawyers are not equipped or willing to defend. John has worked on some extremely difficult cases in his over 20 years of practice as an attorney. When the State vs. David Lewis case came in front of John he did not hesitate to take on the case. David Lewis was accused and charged with a murder that occurred in 1990. This charge was brought forth by the Cold Case Homicide department in Milwaukee complete with DNA evidence and witness statements. John knew that this case would be time consuming and challenging. John feels that lawyers with the ability to defend cases like this have a duty to take them on to protect defendants from unreasonable convictions dependent on glorified DNA evidence. While some people believe that any case involving DNA evidence will produce an automatic conviction, John knows that this is not true. It should have been intimidating that David Lewis was charged as a result of a Cold Case Homicide Unit investigation. These specialized crime investigation units generally have almost perfect conviction rates. They simply do not usually bring cases to court that do not have concrete evidence. However, John moved forward with his defense of David Lewis to prove that the DNA evidence presented was not valid in this case and that the witnesses that testified were not credible. Ultimately the jury returned a not-guilty verdict. In John’s many years of legal practice, he has developed the ability to be able to defend in cases of this difficulty. Even in the most difficult of circumstances John Birdsall and Birdsall Law Offices can produce the best possible results. In the State vs. Lewis case, the State did not present sufficient evidence for a conviction. John made sure that he showed that, which is what led to the exoneration of David Lewis in this murder trial.
Summary by Attorney John A. Birdsall
Summary of State vs. Lewis
By John Birdsall
On May 20, 2011, a Milwaukee County jury acquitted a Milwaukee man of 1st degree reckless homicide in a “cold case” from 1990. It is believed that this was the first acquittal of a cold case in Wisconsin. The victim was killed in her apartment and died by manual strangulation. There was also bruising to her lower back and, though there was no sign of a struggle and she was fully clothed, the state’s theory was that she was sexually assaulted and then murdered. The defendant and the victim knew each other well and she was like a mother to him. There was never any evidence of even an argument between the two, much less physical violence.
The state attempted to introduce numerous “other acts” including 1) that he sexually assaulted 3 different woman by abducting a choking them and placing his knee in their backs, 2) that he was convicted of 1stdegree intentional homicide in 1994 in the strangulation death of another neighbor, 3) that he was seen outside the victims home by a drainpipe around the time of death and had been seen using that to access that victim’s apartment in the past, and 4) that after being informed that the police were taking fingernail clippings of various suspects, he picked up a fingernail file and began cleaning his fingernails. The court allowed one of the sexual assaults and the nail cleaning to be admitted.
On the defense side, a Denny motion was filed accusing another of committing the crime. He had a violent encounter with the victim a short time before her murder and had been convicted of sexually assaulting and strangling 3 other women in a similar fashion to the victim. Moreover, the victims son had pulled a knife on her in a fight over drugs and a family friend had kicked her in the chest in a similar fight. All these men were questioned as suspects in 1990. The court denied all motions and excluded any questioning about these violent encounters.
Thus, the argument became a simple “reasonable doubt” argument about the viability of their theory and the credibility of their witnesses - particularly the ones on the “other acts.” The medical examiner was forced to admit that the bruise that the victim had on her lower back was possibly several days older that the injury to her neck. This threw into doubt the conclusion that she was sexually assaulted by my client in the same fashion alleged by a different woman. The state’s DNA analyst agreed that the sperm that was deposited in the victim could have been there up to 48 hours prior to her death. My DNA expert opined that it could have been 7 days.
Finally, the time of death was estimated to be 2 am to 6 pm but my client’s mother testified that he was home that night before 12 midnight. The jury deliberated for 3 hours before returning their verdict on a Friday afternoon. They commented that they thought he may have had something to do with the victim’s death, the proof just wasn’t there.
Cold Case Information
Cold Cases: A summary of research
Wisconsin has had an active interest in “Cold Cases” for several years. The definition of a “cold case” is different for different departments. However, generally a cold case is any crime that is at least a year old. While many cold case units focus solely on homicide cases, some also focus on sex crimes as well. This is due to the fact that homicide and sex crimes frequently use DNA in prosecution. In the past five years cold cases have come into greater focus in Wisconsin as the desire grew to clear more of the hundreds of unsolved homicide investigations on file in Wisconsin’s police departments. Milwaukee Police Department was able to revamp their cold case division to re-examine over 500 unsolved murder cases dating back to around the year 1990. In October of 2008 the Wisconsin Department of Justice was given a $500,000 grant by the U.S. Department of Justice to take a fresh look at hundreds of cold cases. Between 2006 and 2009 the State Cold Case Unit made arrests in 18 cases bringing 13 convictions. In September of 2010 another $500,000 grant was received by the Wisconsin Department of Justice from the United States Department of Justice to review cold cases. "During a previous grant furnished by the U.S. Department of Justice, four convictions were obtained for cold case homicides, and dozens of new leads were generated in others which continue to be investigated" said Van Hollen (www.doj.state.wi.us). San Diego’s Cold Case Unit boasted a 100 percent conviction rate in 2008. Atlanta’s Cold Case Squad had a 100% conviction rate in 2010. Several other cold case units have reported equally impressive conviction rates over the past five years as more advanced DNA technology has been introduced into these cases. Cold case squads are often staffed by retired detectives or seasoned and sworn officers currently on staff in the department. They are generally assigned to work full-time on a single case. The high conviction rates of cold case units make it no surprise that law enforcement depend on the added cold case convictions to increase yearly clearance rate data. When a cold case is solved it is logged into the data of the year it was solved in rather than the year that the crime was committed. This helps to boost a given agencies statistics for their homicide clearance rate to be reported for the Federal Bureau of Investigations Uniform Crime Report that is released annually. The Solving Cold Cases with DNA grant program has awarded over id="mce_marker"4 million to cold case units since 2001 along with the id="mce_marker" billion that President Bush allotted for the advancement of DNA programs in the criminal justice system. Highly skilled staff, sufficient funding and DNA technology have helped cold case units to achieve almost perfect conviction rates in the cases they bring to court.
Wisconsin Cold Case Data as of 2009
|
Category |
2006 (Total) |
2007 (Total) |
2008 (Total) |
2009 (Total) |
|
Case Files Reviewed |
39 |
36 |
29 |
124 |
|
Items of Evidence Reviewed |
278 |
250 |
109 |
405 |
|
Items of Evidence Submitted/Resubmitted |
97 |
87 |
39 |
267 |
|
Items of Evidence Tested |
41 |
46 |
6 |
248 |
|
Items of Evidence with usable DNA |
8 |
21 |
2 |
29 |
|
Items of Evidence that ID Suspect |
7 |
7 |
1 |
18 |
|
Enter into CODIS: DNA |
2 |
5 |
0 |
20 |
|
Witness Interviews |
96 |
147 |
63 |
156 |
|
Reviewed by Prosecutors |
3 |
12 |
12 |
23 |
|
Reviewed Cases Issued |
1 |
1 |
2 |
22 |
|
Number of Arrests |
2 |
1 |
0 |
15 |
|
Number of Convictions |
4 |
2 |
1 |
6 |
|
Cold Cases Cleared |
29 |
|||
|
Minimum Number of Open DCI and Partnering Agency Cold Cases |
178 |
Table from: http://www.doj.state.wi.us/absolutenm/templates/template_share.aspx?articleid=2214&zoneid=1
A Task force was formed in May of 2009 including the Milwaukee Police Department Cold Case Squad, District Attorney’s office, the State Division of Criminal Investigation and the FBI. The task force as set up to investigate a group of homicides dating back to 1986. Milwaukee District Attorney John Chisholm coordinated this task force. In the wave of DNA testing that was put forth to find a suspected serial killer, several other suspects were identified with new DNA methods that had become available recently. All of the victims investigated by this task force were known prostitutes involved in the drug trade. These were the types of victims being tied to the unknown serial killer later found out to be Walter E. Ellis commonly known as the “North Side Strangler”. Walter E. Ellis was ultimately charged with 2 Murders and 5 Intentional Homicides. The Milwaukee Cold Case Unit became widely renowned as one of the most successful cold case departments in the country having brought a killer to justice that was proven to kill 7 people. The Milwaukee Cold Case Unit continued to uncover several other homicides from investigations that had found their way into their cold case files. Most of these cases involved DNA evidence which is widely believed to bring a guaranteed conviction. As it stands, most Cold Case Departments nationwide experience a very high conviction rate. The national clearance rate for murders in the United States is around 60% in the United States. Cold Case departments often experience conviction rates often as high as 100 percent for cases brought to court. Denver’s Cold Case Project has also experienced high rates of conviction as a result of interest put forth by the Denver district attorney. The high rate of conviction seen in cold case departments is generally due to the fact that many cold cases are brought to court with DNA evidence.
The enormous investigation into Walter E. Ellis led to the arrest of several other suspects in similar types of homicides. In August of 2009 David W. Lewis was arrested in connection with the alleged homicide of Vernell Jeter. Alleged witnesses, ex-girlfriends and DNA evidence were all introduced into this case. DNA proved to be the deciding factor in the State vs. David W. Lewis case. DNA analysts from the State Crime Laboratory claim to have matched Lewis’ blood sample to semen recovered from Jeter’s body. Also, these analysts were making this match with DNA samples from 1990 when the crime was committed. Ultimately, it was shown that this DNA evidence could not be valid in this case and David W. Lewis was found not guilty of 1st Degree Reckless Homicide.
Resources:
San Diego Had a Cold Case Conviction rate of 100% in 2008
http://sandiegodaannualreport.com/2008/pages/divisions/cold_case.html
Task force to find “North Side Strangler”
http://www.youtube.com/watch?v=R4AY1wL45hY
Walter E. Ellis News Release
David W. Lewis- JSOnline Article August 24,2009
http://www.jsonline.com/news/crime/54614662.html
Shining Light on Cold Cases
http://www.jsonline.com/news/milwaukee/29557749.html
DNA in Cold Cases
http://www.ncjrs.gov/pdffiles1/nij/194197.pdf
Typical and atypical homicide:
http://findarticles.com/p/articles/mi_go1613/is_1_19/ai_n53026363/pg_11/?tag=mantle_skin;content
Promoting Effective Homicide Investigations, USDOJ
Evidence Lost in at least 4 Dane County cold cases:
With added lab staff, DNA tests resolve string of old killings
Links to Related Articles
Wisconsin Law Journal
http://wislawjournal.com/2011/06/03/homicide-cold-case-ends-in-acquittal/
Birdsall Law Offices Blog
http://thepresumptionofinnocence.wordpress.com/2011/06/06/homicide-cold-case-ends-in-acquittal/
Milwaukee Journal Sentinel
http://www.jsonline.com/news/crime/54614662.html
San Diego Had a Cold Case Conviction rate of 100% in 2008
http://sandiegodaannualreport.com/2008/pages/divisions/cold_case.html
Task force to find “North Side Strangler”
http://www.youtube.com/watch?v=R4AY1wL45hY
Walter E. Ellis News Release
David W. Lewis- JSOnline Article August 24,2009
http://www.jsonline.com/news/crime/54614662.html
Shining Light on Cold Cases
http://www.jsonline.com/news/milwaukee/29557749.html
DNA in Cold Cases
http://www.ncjrs.gov/pdffiles1/nij/194197.pdf
Typical and atypical homicide:
http://findarticles.com/p/articles/mi_go1613/is_1_19/ai_n53026363/pg_11/?tag=mantle_skin;content
Promoting Effective Homicide Investigations, USDOJ
Evidence Lost in at least 4 Dane County cold cases:
With added lab staff, DNA tests resolve string of old killings
