Homicide cold case ends in acquittal

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There were plenty of reasons Milwaukee attorney John Birdsall could have declined accused murderer David Lewis’ case.

The 1990 homicide cold case, an appointment from the Wisconsin State Public Defender’s Office, resurfaced two years ago when DNA evidence linked the defendant to the crime scene.

Given the case’s complexities and the stakes involved, Birdsall said he knew he’d lose money on it at the standard $40 per hour state rate.

Moreover, the defendant had been convicted of murder in 1994, so Birdsall knew he wouldn’t be particularly likeable to a jury.

But perhaps the best reason to reject the case was the DNA evidence linking the defendant to the crime scene, the centerpiece of the prosecution’s case. Jurors tend to accord DNA evidence great weight, said Birdsall, of Birdsall Law Offices SC.

“It’s a variation of the ‘CSI effect,’” he said. “I think people have a misperception about the breadth of what science can do. They hear, ‘Well, they’ve got a DNA hit,’ and to them it’s like a silver bullet — that’s the end of the case. But it’s not. It’s not even close.”

Birdsall decided to take the case, though, and the decision recently paid off when a jury acquitted Lewis on May 20 for the first-degree reckless homicide of Vernell Jeter.

Birdsall said he took the case because he thinks “lawyers who have the ability to deal with scientific evidence and complicated, high-level criminal cases have a duty to take on those cases, maybe once per year.”

“This was my ‘one-per-year,’” he said, “which ended up lasting two years.”

The head of the State Public Defender’s Trial Division in Milwaukee, First Assistant Thomas Reed, agreed that Birdsall faced an uphill battle in Lewis’ defense, given the presence of DNA.

“I don’t watch them, but there are a lot of TV crime programs that give the impression that if DNA evidence is there, that’s it. There’s nothing else to know,” he said.

It’s very common for a victim and suspect to have been acquainted, he said, explaining the presence of DNA. Linking that DNA to the crime can be tricky, however, Reed said.

“Actually, from the lawyer’s perspective, the fact that you have DNA present at the scene of a crime means that at some point, the defendant was present at the scene of that crime,” he said. “But it’s not date-stamped and time-stamped, so the defendant might’ve been at the scene of that crime at some other point.”

The state was represented at trial by Assistant District Attorney Grant Huebner, who declined to comment.

The investigation and pre-trial litigation

Jeter, 45, was strangled to death in her apartment on Sixth and Wright Streets in Milwaukee on Feb. 18, 1990.

Semen was present inside her body, although she had been found fully-clothed, and there were no signs of a struggle. Aside from the injuries related to the choking, she’d also sustained bruising to her lower back.

Lewis, who’d been acquainted with her and lived nearby, was investigated along with several other suspects. Unrepresented by counsel, he cooperated with police fully by complying with questioning, and giving hair and nail clippings, as well as a blood sample.

He was not charged until June 2009. Convicted felons in Wisconsin are required to provide DNA samples to the Wisconsin Department of Justice’s DNA databank. DNA from the sperm in Jeter’s body matched Lewis’ sample.

Lewis denied that they’d had sex, consensually or forcibly.

The preliminary hearing lasted three days, each a day-long hearing separated by a week’s time.

But it was the extensive pretrial motion practice that prolonged the case substantially, Birdsall said, requiring briefing (he was assisted by Milwaukee attorney Lew Wasserman with that) and lengthy hearings.

Among the numerous evidentiary motions, the state sought to introduce numerous “other acts” evidence.

The prosecution attempted to introduce evidence that Lewis sexually assaulted three other women by abducting and choking them, and placing his knee in their lower backs as his “signature,” thereby bolstering the state’s identity argument. Among them was a former girlfriend of Lewis.

Of the three women, the court allowed only the former girlfriend’s testimony.

But the court didn’t allow the prosecution to introduce Lewis’ first-degree intentional homicide conviction in the strangulation death of another neighbor — a ruling very favorable to Lewis.

Then the defense brought its evidentiary motions.

Per State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct.App.1984), Lewis argued that several others could have committed the crime. Jeter had violent histories with four or five other men from the area, including George Jones, who is currently incarcerated for the strangulation murder of another woman. The court denied the motion.

Lewis also lost a motion to introduce evidence as an admission by a party opponent, with regard to statements Milwaukee County Assistant District Attorney Mark Williams had made in another, well-publicized case involving DNA.

Williams had stated publicly that the presence of DNA evidence alone is not sufficient to establish guilt. The court denied the motion.

Leading up to trial, the state had made offers to settle. But Lewis flatly refused, maintaining his innocence.

The trial

In the prosecution’s case-in-chief, Dr. Jeffrey Jentzen, the former medical examiner for Milwaukee County, testified that the time of death was likely between 2 a.m. and 6 a.m.

On cross-examination, he said that the victim’s lower-back bruising was possibly several days older than the injury to her neck. Birdsall said this cast doubt as to whether she’d been sexually assaulted by Lewis in the same fashion alleged by the former girlfriend.

When the former girlfriend took the stand, Birdsall said, her testimony contained a number of inconsistencies.

Further complicating the state’s argument that Lewis had sexually assaulted Jeter was testimony from its own DNA expert, Susan Noll, that the sperm from Jeter’s body could have been deposited up to 48 hours before her death.

The defense’s DNA expert, Alan Friedman, shed even more doubt on the sex assault theory when he testified that the DNA could have been deposited as long as seven days prior to Jeter’s death.

As for Lewis’ stance that the two had not had sex, Birdsall said, “We couldn’t reconcile it with the DNA evidence. And we really didn’t try because it wasn’t necessary.”

Lay testimony was helpful as well. Lewis’ mother testified that he had returned home before midnight. Lewis did not testify.

The jury deliberated for three hours before returning a not-guilty verdict.

Afterward, Birdsall said jurors told him they thought Lewis might have had something to do with the victim’s death, but the state hadn’t satisfied its burden of proof.

“The detectives on the case were very competent and professional,” Birdsall said, “but all they can present is the evidence that they have, and in this case, they just couldn’t produce enough. It’s difficult 20 years later. The DNA might last, but witnesses don’t, or their memories don’t.”

Jane Pribek can be reached at [email protected].