Destruction of Evidence: DA Martin Lipkse unlawfully destroys evidence before Don Miller's trial

On October 21st 1997, the victim in the case of Donald Miller was sent to Grand View Hospitals Emergency Room for an examination and completion of a DNA Sexual Assault kit. She is examined and the kit completed by Dr. E Lanny Robins who later testified at trial.

As anyone would reasonably think, this biological evidence collected would have contained some of the most or THE most important evidence in a 1st degree sexual assault case. However, although Dr. Lanny Robins did testify at trial, the rape kit he collected during the examination of the victim never appeared as an exhibit in the trial. In fact, Mr. Lipske was very determined to get rid of this VITAL piece of evidence as you will see here:

• November 17, 1997 - Motions Hearing [TR 4:20-25, 5:1-14]
  
  LIPSKE: I would like to note for Mr. MacDonald, that when he comes over to view the physical evidence he can view that and ask whether or not he wants to get that sent in for any testing if he wishes. I will make that available. If not, I would like to get rid of that before too long...
  
  COURT: As you know, it's not going to be disposed of until this matter is resolved.
  
  LIPSKE: Uh-huh.
  
  
• November 24, 1997 - Pretrial Conference [TR 4:7-21]
  
  LIPSKE: I believe on the -- approximately the 21st of October, a sexual assault kit which we stored in the refrigerator of the Sheriff's Department at this point. We're about to, probably more than likely dispose of that particular evidence.
  

Read the section in Anatomy of a Wrongful Conviction were Don Miller explains what happens when him and his lawyer request to see the rape kit. When Don and his lawyer, Mark MacDonald go to the Iron County Sheriff's Department to view the kit. They noticed that the integrity seals were broken on the kit and only a lab has authority to break the integrity seals on the kit. However, note the following remarks in the Motions Hearing transcript from Mr. Lipske:

• November 17, 1997 - Motions Hearing [TR 4:20-25, 5:1-3]
  
  LIPSKE: There is one other instance when the kit comes as part of the medical report. A sexual assault kit was done and that included some combings of hair and blood samples. At this point, that has not been sent down to the crime lab. At this point, I don't intend on doing that in that - - and that particular kit or the remainder of that is currently being held in the Iron County Sheriff's Department and in that, I don't plan on sending that down.

Note that DA Lipske refers to it as the "remainder" of the kit. When rape kits are tested some of the biological material is removed to be tested, leaving the "remainder" of the biological evidence in the tested kit. Although, Lipske claimed that he was not going to send the kit to the crime lab to be tested when Don and his lawyer had a brief look at the kit the integrity seals on the kit were broken. Iron County Sheriff's Department uses the Wausau Crime Lab or the full service labs in Madison and Milwaukee however, there are a number of private labs in Wisconsin and throughout the midwest who do DNA testing directly or on outsource contracts as well.

[ Read the Physical Evidence Handbook produced by the Wisconsin Department of Justice Crime Labs Division ]

Note the following from the Wisconsin Rules of Professional Conduct for Attorneys

SCR 20:3.4 Fairness to opposing party and counsel.

A lawyer shall not:
a.) unlawfully obstruct another parties access to evidence or unlawfully alter, destroy or conceal a document or other material having potentially evidentiary value.

d.) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request to the opposing party.

Applicable law in many jurisdictions makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen.

Another problem with the destruction of this evidence is the question of whether it was a violation of Don's constitutional rights of due process enshrined in the 14th Amendment. There is much case law to this effect including that of Arizona v. Youngblood (1988)

In Youngblood, the State of Arizona charged the defendant with kidnapping and sexually assaulting a 10-year-old boy. The boy's clothing was stained with semen, but the police failed to refrigerate the clothing or promptly test the stains to determine the identity of the assailant; as a consequence, the state had no scientific proof of identity. Nevertheless, on the strength of the boy's testimony, the jury found the defendant guilty. The Arizona Court of Appeals reversed the conviction on due-process grounds even though it found no evidence of bad faith on the part of the state. The court reasoned that “that timely performance of tests with properly preserved semen samples could have produced results that might have completely exonerated [the defendant].”

The Supreme Court of the United States agreed with the appellate court “that there was no suggestion of bad faith on the part of the police”: failing to refrigerate the clothing and promptly perform tests on the semen stains was, at worst, negligence. If the state had failed to disclose material exculpatory evidence, its good or bad faith would have been irrelevant. But such was not the situation before the Supreme Court, all one could say of the evidence was it might have been exculpatory. Therefore, contrary to the holding of the appellate court, the defendant had to show bad faith. The Supreme Court held: “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”

Thus, under the federal due process analysis, there must be bad faith before the destruction of potentially useful evidence may violate the defendants rights to due process and a fundamentally fair trial.”

However, State courts are free to interpret constitutional provisions a bit more broadly depending on certain other circumstances as can be seen here in People v. Newberry (1995), the Illinois Supreme Court held,

"Where evidence is requested by the defense in a discovery motion, the State is on notice that the evidence must be preserved, and the defense is not required to make an independent showing that the evidence has exculpatory value in order to establish a due[-]process violation. [Citation.] If the State proceeds to destroy the evidence, appropriate sanctions may be imposed[,] even if the destruction is inadvertent. No showing of bad faith is necessary. [Citation.]” Newberry.

As can be read in the transcript of the November 17, 1997 Motions Hearing, Item 11 of the motions for discovery submitted by Don's lawyer, Mark MacDonald requested to view all evidence seized. So, speculating from the standpoint of the Illinois decision above, there was a violation of due process in destroying evidence requested in the motion for discovery whether in bad faith or not on part of the prosecution or police in Don's case.

When we look at the Youngblood case, we find that destruction of potentially exculpatory evidence is a violation of due process only where bad faith can be demonstrated. In the case of Don Miller, we see in the transcripts from both the Motions Hearing and the Pretrial Conference that twice DA Lipske mentions he wishes to dispose of the kit. During the Motions Hearing, Judge Patrick Madden tells Lipske specifically that he is not to dispose of the kit until the matter is resolved. Since Don's trial, three people who were present at the trial have sworn affidavits attesting to the fact that they heard Judge Madden ask Mr. Lipske where this rape kit was that he so eagerly wanted to dispose of. Mr. Lipske replies that he was disposed of the rape kit. Judge Madden was then heard to say, "What!? After I told you two times not to dispose of that kit?" There was no further mention of the rape kit at the trial. Therefore, I believe bad faith is clearly demonstrated by Mr. Lipske's actions.

[ Affidavit - Pete Gottinger ][ Affidavit - Patricia Miller ][ Affidavit - Dennis Miller ]

Many years after Don's trial, his lawyer Raymond Dall'Osto writes to DA Lipske requesting the whereabouts of the rape kit and photographs of the victim. In a letter dated July 29, 2003, Mr. Lipske replies to Dall'Osto's letter claiming that he does not know where the evidence is and that the Sheriff's Department had moved to another location and many things were discarded during the transition although, he could not confirm whether any of the discarded items were the requested evidence. [ Read Lipske's letter to Don Miller's lawyer ]

District Attorney Martin Lipske has a history of lying and has been suspended from practicing law in the past for 2 years each in Wisconsin and Minnesota. [ Read the full details of Martin Lipske's law license suspensions ]

Don then wrote an official complaint to Judge Patrick Madden regarding the lost evidence that was ignored by him. So, Don wrote a letter to the Iron County Court Clerk, Virginia Giacomino, filing an official complaint and asking her for her opinion on how the evidence might have gone missing. [ Read Don's letter to Virginia Giacomino ]

Virginia Giacomino replied to Don's letter saying the photographs were in the court files and supplied him with copies of the photographs. [ Read the letter from Iron County Court Clerk Virginia Giacomino ]

The whereabouts of the rape kit is still unknown.