It is interesting to note that only a few months before Don even met the alleged victim in his case, a truly shocking ordeal involving a Hurley City Police Officer and Don occurred one evening in Hurley.
Excerpt from the Notorious History of Iron County...
The same officer was later fired in 2003 after assaulting a citizen while making an arrest. He was charged with misconduct in office/excess authority and battery. The misconduct in office charge was deferred for two years provided he did not get into further trouble with the law and made no attempts to take work in law enforcement. He plead guilty on a battery charge..
Why did Don's day in court in front of Judge Madden vanish from the calendar?
After Don was arrested over the escalating accusations by the alleged victim all his initial court hearings ensued in the weeks afterwards and eventually his trial took place on December 4th - 5th, 1997.
One of the only major pieces of evidence collected prior to Don's trial was the "Sexual Assault DNA Kit".
An excerpt from Destruction of Evidence.....
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.
- 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.
[ 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.
Why did Judge Madden allow the deliberate destruction of the rape kit go unchecked when the DA clearly defied his direct orders not to dispose of the kit?
The prosecutions "expert" witness, Dr. E. Lanny Robins, examined the alleged victim at Grandview Hospital in Ironwood, Michigan soon after Don's arrest. He admitted that the sexual examination for part of the rape kit exam came back "normal" and while he did find bruises on the alleged victims body, some of his conclusions were very curious with regards to his "expert" opinion of some bruises being bite marks simply because he could not explain how else they might have happened among many other things! Dr. Robins is not a bruise or bite mark expert, he was simply just the ER doctor on call at the time that the alleged victim came in for her exam. He continued with his testimony to give his expert opinion that he "believed" her story and therefore concluded that while his exam came back "normal" he believed she had been raped because he believed her story. This, of course, was NOT medical certainty and nor was Dr. Robins qualified to give to such an opinion yet, the court allowed this testimony to carry on.
An excerpt from Anatomy of a Wrongful Conviction ......
Don was on trial for sexual assault, which is defined by the law as sexual contact without
consent. Since none other than Don and Connie had any knowledge regarding consent the
law prohibits any other witness from testifying that a sexual assault actually happened
and strictly limits any testimony given by a doctor to only what specific medical evidence
of sexual contact the doctor had found during a physical examination.
But DA Lipske called Dr. E. Lanny Robins to testify. Robins had examined Connie at the
Grand View Hospital in Ironwood, Michigan then grossly and recklessly misled the jury
by testifying that it was a medical certainty that Connie had been sexually assaulted.
Not only was this testimony inadmissible, it was also an incompetent medical opinion.
Robins had no medical evidence of any sexual contact, knew nothing regarding consent,
and admitted that the only medical evidence he found was arm and leg bruising, the cause
of which he also admitted was not known to him. It was bruising she previously claimed
another boyfriend caused, and which bruising was two weeks older than the date of the
claimed assault this alleged doctor was testifying about.
The opinion of sexual assault given by Dr. Robins lacked a medical basis. Robins himself
admitted that he had no evidence of sexual contact, no evidence of sexual area injury, and
admitted that the sexual aspect of his exam was, quote, "normal." Further, his own lab
had found no evidence of any sexual contact. And unless he was inside Don's home
during the time Connie claimed she was being raped, Robins also had no knowledge
regarding consent. Despite all this, Robins came into that courtroom and told the jury that
it was medically certain that Connie had been sexually assaulted.
A very experienced physician, S.G. Albert, took the time to review the medical report and
testimony given by Dr. Robins. Dr. Sam Albert finds the opinion of sexual assault to be
medically baseless and was appalled by the reckless, incompetent, illogical opinion of
sexual assault given by Robins during trial. Dr. Robins should now retract his opinions.
During the times that Robins examined Connie and testified at trial, Robins was working
at the Grand View Hospital in Michigan. Guess who was on the Board of Directors there
during this time? Judge Madden. He was the doctor's boss! Madden also failed to disclose
this fact before trial. Not long after Robins testified in this case the Grand View Hospital
"prematurely terminated their contract" with Dr. Robins. In other words, they fired him.
consent. Since none other than Don and Connie had any knowledge regarding consent the
law prohibits any other witness from testifying that a sexual assault actually happened
and strictly limits any testimony given by a doctor to only what specific medical evidence
of sexual contact the doctor had found during a physical examination.
But DA Lipske called Dr. E. Lanny Robins to testify. Robins had examined Connie at the
Grand View Hospital in Ironwood, Michigan then grossly and recklessly misled the jury
by testifying that it was a medical certainty that Connie had been sexually assaulted.
Not only was this testimony inadmissible, it was also an incompetent medical opinion.
Robins had no medical evidence of any sexual contact, knew nothing regarding consent,
and admitted that the only medical evidence he found was arm and leg bruising, the cause
of which he also admitted was not known to him. It was bruising she previously claimed
another boyfriend caused, and which bruising was two weeks older than the date of the
claimed assault this alleged doctor was testifying about.
The opinion of sexual assault given by Dr. Robins lacked a medical basis. Robins himself
admitted that he had no evidence of sexual contact, no evidence of sexual area injury, and
admitted that the sexual aspect of his exam was, quote, "normal." Further, his own lab
had found no evidence of any sexual contact. And unless he was inside Don's home
during the time Connie claimed she was being raped, Robins also had no knowledge
regarding consent. Despite all this, Robins came into that courtroom and told the jury that
it was medically certain that Connie had been sexually assaulted.
A very experienced physician, S.G. Albert, took the time to review the medical report and
testimony given by Dr. Robins. Dr. Sam Albert finds the opinion of sexual assault to be
medically baseless and was appalled by the reckless, incompetent, illogical opinion of
sexual assault given by Robins during trial. Dr. Robins should now retract his opinions.
During the times that Robins examined Connie and testified at trial, Robins was working
at the Grand View Hospital in Michigan. Guess who was on the Board of Directors there
during this time? Judge Madden. He was the doctor's boss! Madden also failed to disclose
this fact before trial. Not long after Robins testified in this case the Grand View Hospital
"prematurely terminated their contract" with Dr. Robins. In other words, they fired him.
 |
| February 1991 |
Please visit this page to read more about Patrick Madden's time on the Grandview Hospital Board. The audio interview we will release later this week will reveal a bit more on this subject too.
Patrick J. Madden also denied Don's mother Patricia and his brother Dennis from sitting in the courtroom during Don's trial. However, Patricia and several other people witnessed Judge Madden in the hallway outside his office speaking to the alleged victim and also hugging and comforting her. When he noticed that he was being watched he quickly slipped back into his office.
See Sworn Affidavits from 3 people who witnessed this:
A clip of a video interview where Patricia Miller talks about this occasion.
At trial Don was also stripped of any defense he could have had in a case that was entirely a "he said, she said" argument. A rather gross interpretation of the Rape Shield Law forbid Don's attorney of bringing up the past criminal convictions of the alleged victim which included lying to police officers and others. Don was also stripped of any option of bringing up her history of falsely accusing other men or noting the amount of personal protection orders she had against various people. Judge Madden claimed this would have ruined the alleged victims credibility.
Note that the alleged victim had becomed embroiled in another vindictive measure towards another man in Michigan while Don was sitting in jail awaiting trial.
Personal Protection Order Against Ken Grenfell.
Lastly, in this part of the series I want to bring up the Jury Instructions that Judge Madden read to the jury just before they went into deliberate.
An excerpt from What's wrong with the Jury Instructions....
This post is a continuation from the post written by Bob Green and reposted here entitled, "What's wrong with the Jury Instructions" providing further information on this issue.
Don Miller was charged with and tried on two counts of 1st Degree Sexual Assault/Threat or Use of a Dangerous Weapon. Wis Stats § 940.225(1)(b) among several other lesser charges.
 |
| Taken from the Wisconsin Legislature website. https://docs.legis.wisconsin.gov/statutes/statutes/940/II/225 |
 |
| TR [567:18-24] |
See below that when Judge Madden begins to read the substantive instructions, he quotes the wrong part of the Statute under which Don was actually charged with at Line 3. He quotes Wis Stats § 940.225(1)(a) rather than the Wis Stats § 940.225(1)(b). Further down at Line 14 and 15 he says that the State has to have proved beyond a reasonable doubt that the Defendant caused great bodily harm to Ms. Vargovich.
 |
| TR [575:1-25] |
Trouble is, is Don Miller was never charged with 1st Degree Sexual Assault / Causing Great Bodily Harm. Wis Stats § 940.225(1)(a).
See the [ Criminal Complaint ]
See the [ Arraignment Transcript ]
Note that at Lines 20-22 he then throws in a definition about what a dangerous weapon and firearm is ???
 |
| TR [576:1-25] |
Perhaps the following conversation with one of the jurors on Don Millers trial sheds further light on why they may have convicted him of one of the sexual assault charges and acquitted him on the other. (Juror's name has been redacted for their privacy.)
Excerpt from April 9, 2012 phone conversation between Stephen Williams and Juror "X":
This juror was essentially saying the State did not prove the dangerous weapon element beyond a reasonable doubt which is why they acquitted him of that charge. However, both sexual assault charges required the dangerous weapon element be proven beyond a reasonable doubt and the alleged victim claimed the same exact gun and laser site was used on both occasions in a similar manner.
Therefore, if the jury did not find the dangerous weapon element to be proven beyond a reasonable doubt on the first charge why would they find the dangerous weapon element to be proven on the second charge? I will leave the reader to decide whether the jury may have been confused or perhaps misled on the elements of the crime they convicted Don Miller of.
 |
| 150 Wis. 2d 861, 443 N.W.2d 38 |
MUST SEE....
The section about the Jury Instructions error in Don's Petiton of Writ of Habeas Corpus in 2000.
While this article is by no means exhaustive, it brings up several issues warranting a closer look at how and why Judge Madden acted and performed before, during and after Don Miller's trial.
Next in the series, we will go into what some investigators found out about Judge Madden, his relationship with the alleged victim in this case and even some other issues of judicial integrity completely unrelated to the case of Don Miller.
Very interesting info.
ReplyDeleteRather surprised that candidates for the likes of the DA position in Iron County aren't expected to have a good (or even adequate) memory, or that the Iron County voters don't seem to care much about the fact that they elected somebody who lies but doesn''t have the intelligence to remember those lies ..as shown by his suspensions elsewhere . In fact..is it not puzzling that any employer, anywhere in the world (even where I am) would employ someone who has failed every test of probity applied?
It rather begs the question as to whether Iron County has changed that much from the days illustrated on here previously...when the few with clout controlled the majority without it.. If this was Italy or Sicily (or New York)..they'd be the Mafia...but in Iron County, Wisconsin, they appear to be the police, the justice system and the bars (with prostitution) working as a united cabal . How elections are conducted and what pressure is applied to the votes I do not know, but I really hope pressure has been applied, because I'd hate to think that every voter in Iron County was involved in voting for a-holes rather than decent candidates. From where I live, given the performance of the DA, an obedient dog would have been an adequate rival for his position...because dogs also know how to do what they are told..particularly if you threaten them, because they eventually understand the connection between action and consequences...though not quite as concerned about income, position and influence.. I know..I have a dog !
Been reading this site and the FaceBook pages for a long time...and it seems to me that Madden controls everything in the Iron County judicial (if that is how it can be described) system and it is run to protect him in the first instance. As a by-product it may well protect other lesser (to his mind) mortals, and encourage their silence....but if Madden wasn't taking the piss, would any of the others be so inclined to do the same? When a lesser mortal has something to hold over the head of a more important mortal why should the lesser mortal not take advantage of the more important mortal's indiscretions. Isn't that how Connie has always worked, and why the Iron county judiciak system dances to her tune.