LOST IN THE SHUFFLE;

The Capital Times (Madison, Wisconsin), SECTION: THE CAP TIMES; Pg. 18
BYLINE: By STEVEN ELBOW » The Capital Times »

Dane County, WI

POLICE HAVE THROWN OUT OR LOST EVIDENCE IN AT LEAST FOUR DANE COUNTY COLD CASES.

Every Christmas season Genevieve Justl brightens her West Bend home with a large holiday display, the kind you might see in a store window: Mr. and Mrs. Santa holding a New Year's bell. When she first saw it 38 years ago, she didn't know if she should make such a frivolous purchase. But then she imagined what her son, Mark, might tell her, had he still been alive: "Don't be silly. Just go get what catches your eye. "The decorations provide a grim comfort. "I'm looking at it right now, the old Colonial outfits, the big white bell." She chuckles softly, then her tone lands on a somber note. "He never saw them at all."

On Nov. 22, 1972, someone beat Mark Justl to death in Madison. A paperboy found his bloodied body at the Joyce Funeral Home, which was then housed on West Washington Avenue. Justl, then 28, was a resident employee who answered the funeral home's phone after-hours.

Genevieve Justl once held out hope that her son's killer would be brought to justice. But what remained of that hope was dashed two years ago when Madison Police detectives told the family that on July 5, 1973, just seven months after Mark's death, all the evidence in his case was destroyed.

Genevieve Justl is made of stern stuff. At 95, suffering from cancer and three months into hospice care, she looks back at a "great, great life."

But she can't help but wonder what happened, why her son's investigation was crippled so early on.

There's no one left to tell her. The detective who authorized the destruction, Roger Attoe, died in 2007, and the first lead detective in the case, Charles Lulling, died in 2000.

The evidence included such items as clothing, hair samples, cigarette butts, blood, things that could potentially provide DNA that might lead police to the killer.

"I'm not sure why the evidence was disposed of," says retired Madison Det. Steve Reinstra, who worked on the Justl case in the mid-2000s. "We could have gotten some DNA off of some of that stuff. It's too bad."

Genevieve Justl is one of many mothers, fathers, brothers, sisters and friends of murder victims from the 1960s, 1970s and 1980s who are finding out that the technological advances in DNA analysis that have cracked so many cold cases in recent years can't be applied to the loved ones they've lost.

A Capital Times investigation found that of 10 unsolved murders being investigated by the Dane County Sheriff's Office, the Madison Police Department and University of Wisconsin Police Department dating back to the pre-DNA decades, at least four have been compromised by the mishandling of evidence. While police officials say recent advances such as bar coding and restricting access to evidence storage areas have improved their ability to keep track of items that could potentially tie a suspect to a crime, a lot of evidence over the years has, for various reasons, been destroyed or simply lost.

It's unclear if the purging of evidence in Justl's case was an isolated incident. But it's clear that the mishandling of evidence has been an issue in both the Sheriff's Office and the Madison Police Department.

According to Reinstra and other former Madison detectives, in past decades there was continual pressure from supervisors to clear out evidence.

"There was a big push by our bosses to get everything out of there," Reinstra says. "They would give us these property tags and say, 'You look at this and you get rid of it. We need to clean out the property room.' Unfortunately, some of those things should have been prioritized."

Driving the push was a lack of space. Especially in the mid-1980s, the department's property room at the City-County Building downtown was bursting at the seams.

"Some departments were very protective of that evidence, and they had plenty of room to store it," Reinstra says. "They're (solving) old cases now."

Those other departments didn't include the Sheriff's Office, which also had property rooms in the City-County Building. As the agency was preparing to expand one of the rooms in 1988, physical evidence in two murder cases was inadvertently wiped out, sheriff's officials say, including items that could have potentially contained DNA evidence.

The Capital Times' investigation into the handling of evidence in so-called "cold case" homicides was prompted by a tip from a former Sheriff's Office employee who alleged that evidence room staffers in the 1980s were ordered to destroy evidence in a variety of cases, including such major crimes as sexual assaults, vehicular homicides and murders.

Inquiries by The Capital Times to the Sheriff's Office concerning evidence in the unsolved murder cases of four young women dating from 1976 to 1981 prompted an internal review within the agency. The probe revealed that in the cases of Shirley Stewart, whose body was found in a wooded area in the town of Westport in 1980 a year after she went missing, and Julie Speerschneider, who was missing for two years before her skeletal remains were discovered in the town of Dunn in 1981, nearly all evidence has been destroyed. And sheriff's officials also found that key evidence in another case, the 1968 murder of Christine Rothschild, had simply been lost.

That wasn't news to University of Wisconsin Police Chief Sue Riseling, whose department is in charge of the Rothschild case.

Rothschild, an 18-year-old UW freshman, was found beaten, stabbed and strangled outside Sterling Hall on May 26, 1968. Investigators had long ago exhausted their leads. In 2007 Riseling decided it was time to take another look at Rothschild's murder. She formed a team of investigators and instructed them to gather up the evidence in the case to see if the same technology that has been instrumental in cracking other old homicides in recent years could shed light on the slaying. Because the murder occurred before the UW Police had a facility for storing evidence, the Sheriff's Office was handling it.

"That's when we realized that things were not preserved by the sheriff's department they way we thought they were," Riseling says.

She won't say what the missing evidence was, but in 1968 it was deemed important enough to ship off to the FBI for testing. Some of the evidence collected at the scene, according to news accounts, included bloody clothing, a bloody man's handkerchief found under Rothschild's head, a broken, black umbrella that was stabbed into the ground, and other items found at the scene, items that could contain the DNA of the killer. The FBI processed the evidence shortly after the murder, but there's no record of what was done with it after it was sent back to the Sheriff's Office.

"We've been kind of asking them to look through their property room now for several years hoping that we would find the missing items," Riseling says. "Obviously that didn't happen. And then with this review, since they've really gone through everything thoroughly, it doesn't look like it's going to happen."

While other evidence remains, Riseling says: "Clearly this is a challenge. However, we're going to still keep going with what we have."

The two other homicide cases in which evidence records were requested by The Capital Times were those of Debra Bennett, whose burned body was left in a ditch outside Cross Plains in 1976, and Julie Ann Hall, who was bludgeoned to death and buried near Waunakee in 1978. Sheriff's officials say evidence in the Hall case is still intact. Nearly eight months into the internal review, sheriff's detectives are still trying to determine if any evidence is missing in the Bennett case.

Those murders, along with that of Susan LeMahieu, whose body was found in the UW Arboretum in 1980, were thought by some investigators to be connected, meaning a break in one of the cases might potentially provide new leads in the others. The UW Police Department is investigating the LeMahieu case and has retained the evidence throughout the course of the investigation. UW police have also retained custody of evidence throughout the investigation of another unsolved Dane County murder from the era, that of Donna Mraz, who was stabbed to death near Camp Randall Stadium in 1982. Her murder was thought by investigators to be unconnected to the others.

The Capital Times' initial source, who requested anonymity out of concern that blowing the whistle might compromise that person's current job, says that sometime in the mid- to late 1980s Lt. Larry Lathrop, a supervisor in the evidence room, ordered a major purge to relieve overcrowding in the facility.

In a recent interview, Sheriff Dave Mahoney denied that such a widespread purge occurred. But former evidence technician Lou Molnar, retired since 1990, says it did.

He says that sometime in the late 1980s, Lathrop, after his promotion to lieutenant, was assigned briefly to a supervisory post in the evidence room, and that he ordered a widespread purge to clear a large, overcrowded evidence room in the City-County Building. That's where the Sheriff's Office was located until its move to the Public Safety Building on Doty Street in 1995.

Molnar says there was pressure to purge even evidence in major cases that were still under investigation.

But Lathrop, who retired in 2000, says in an e-mail that he couldn't have authorized the disposal of evidence in felony cases that had not yet been closed, and in which the time for appeal had not passed.

"I can tell you this is not accurate," he says. "I would not have had the authority to authorize the destruction of evidence, nor would your sources have been authorized to destroy said evidence with only my authorization."

He says there was a procedure in place that required that the destruction of evidence occur only if authorized by either the case detective or an assistant district attorney.

"This would only have been done with felony cases that were closed and where the appeal time had passed," he says. "Open cases/homicides would not have been included."

Sheriff's officials say Lathrop didn't take over supervision of the evidence room until 1992, so he was not assigned to it during the time in question.

"He was exonerated by the investigation," Mahoney says.

While the Sheriff's Office in early May denied a records request asking for evidence records in the murder cases, the sheriff, along with Capt. Tim Ritter, who oversees the evidence room, agreed to discuss the matter.

At that time, Mahoney and Ritter refused to discuss specifics of any open cases, saying they didn't want to compromise the investigations.

But Ritter said: "There were items of property related to those cases, not a great deal, just a number of items, that were destroyed about 20 years ago."

The sheriff added, "Of the cases you gave us, every one of those cases has substantial evidence in them."

But the Sheriff's Office's position has changed significantly since then. Last week, a panel of sheriff's officials met with The Capital Times to reveal that skeletal remains in the Speerschneider case were disposed of in 1981, and that a gold hoop earring related to the case was destroyed in October 1988. In 1993, documents obtained by the Sheriff's Office in 1981 related to the Speerschneider case were destroyed.

In the Stewart case, skeletal remains were turned over to a funeral home at an undetermined date, and in 1981 a 12-gauge shotgun shell, thought at the time not to be connected with the case, was destroyed. In October 1988, a bra, a Timex watch and hair found at the base of Stewart's skull were destroyed.

That, the officials say, eliminated all the evidence in the Stewart case. In the Speerschneider case, all that's left are videotaped interviews.

The destruction happened despite that fact that, according to Ritter and Mahoney, the Sheriff's Office continually reviews unsolved homicides.

"Every one of these unsolved homicide cases is assigned to detectives, and as time allows they go through reports and go through evidence and re-evaluate whether there's possibly some new technology that will benefit the investigation," Ritter says.

But the fact that physical evidence in two cases had been cleaned out escaped the notice of sheriff's officials until this year's internal review.

Lt. Tim Schuetz of the professional standards office conducted the investigation into the Speerschneider and Stewart cases. In the course of the investigation, he spoke with those who authorized the destruction of the physical evidence: Lt. Steve Gilmore, who signed off on the destruction of items in 1988, and Shawn Haney, then a lab technician, who authorized the destruction of documents in the Speerschneider case in 1993. Both have since left the Sheriff's Office. Schuetz says neither man realized the items they authorized for destruction were connected to murder cases.

Attempts by The Capital Times to reach Gilmore were unsuccessful, but Schuetz says Gilmore authorized the destruction of the items as the Sheriff's Office was preparing for an expansion of the evidence room in the City-County Building.

In a phone interview, Haney says he doesn't remember the specific documents that were destroyed, but he says the destruction happened as the Sheriff's Office was gearing up for the move from the City-County Building to the Public Safety Building between late 1992 and mid-1994.

Haney says he worked with a prosecutor from the District Attorney's Office to determine what could and couldn't be thrown out. He thinks that the papers were likely stored in what staffers referred to as the "document drawer," rather than with the rest of the evidence in the case, which would have been the normal practice. At any rate, the rest of the evidence, aside from the videotaped interviews, no longer existed.

"There's a possibility that it got looked at and (someone) said, 'Well this doesn't have any real relevance to the case,' and it got destroyed," he says. "That's the best we can think of, because we wouldn't knowingly destroy evidence in an active homicide case."

Schuetz says that while procedures at the time of the incidents were not as stringent as those today, there were safeguards in place to prevent such mishaps.

"The reasonable explanation is that they didn't execute those safeguards prior to authorizing their destruction," he says.

Haney, who made an unsuccessful bid to unseat Mahoney in this year's election, says in his written responses to Schuetz's questions, which he provided to The Capital Times, that the evidence room was "a mess" when the purge commenced.

"We just started with each shelf, made a list and started checking to see if cases were active or closed," he writes. "If the cases were closed we disposed of the property in accordance with what we were told by the detective, DA's office, etc."

After questions about the Sheriff's Office's handling of evidence surfaced, The Capital Times inquired about evidence handling in cold cases by the Madison Police Department. That request revealed the destroyed evidence in the Justl murder.

Documents supplied by Madison police show that the state Crime Lab could also be quick to dispose of evidence. In 1971 the Crime Lab requested authorization from the Madison Police Department to dispose of items the lab was holding in the case of Charles Mumford, who was found shot to death on South Butler Street in 1969. But in a letter, former Police Chief Wilbur Emery instructed the lab to "maintain custody of all materials submitted as a result of this investigation."

Madison police are still processing a request for the status of evidence in a third case: the murder of Thomas Speer, an Indiana physician who was gunned down outside a south-side motel in 1972.

Sheriff Mahoney concedes that some of the items in his department that were destroyed were potential sources of DNA, which has revolutionized the way the criminal justice system carries out investigations since it was first introduced into the courtroom in 1985. And it has led to a boom in solving cases that were previously considered cold.

DNA profiles, which once required substantial samples of blood, saliva or other bodily secretions to construct, now can be gleaned from such sources as skin cells from fingernail scrapings, sweat or skin on the handle of a blunt instrument, saliva on a cigarette butt or a tiny fragment of hair.

"When I retired in 2002 we needed blood almost the size of a quarter to get a good DNA sample," says Rick Luell, who worked on cold cases for the Department of Justice before he retired and is now employed part time with the department's Cold Case Unit. "Today you can get good DNA results from someone just drinking off a soda can, maybe just off a fingerprint."

In 1990 the FBI created the Combined DNA Index System, which stores these DNA profiles from federal, state and local crime laboratories in a data bank, allowing investigators to search for matches.

In recent years the technological advances have sparked a push to re-open old cases. Sometimes, DNA has been used to acquit suspects of crimes they didn't commit. More often, police use it to track down suspects who would have otherwise escaped notice.

Just recently, DNA factored into the conviction of serial killer Edward Edwards in the 1980 killings of Kelly Drew and Timothy Hack of Fort Atkinson; tied accused suspect Walter Ellis to the strangling deaths of seven Milwaukee women between 1986 and 2007; helped convict Thomas Niesen of the 1976 killing of Kathleen Leichtman in Fond du Lac; and identified Curtis Forbes as a prime suspect in the 1980 murder of Marilyn McIntyre of Columbus.

The state Department of Justice's Cold Case Unit, funded through federal grants, helped local law enforcement agencies make arrests in 18 cases, netting 13 convictions, between 2006 and 2009, according to the Justice website.

Among the successes he's been involved in, Luell counts the Edwards case and the 1980 murder of Thomasina Dunivant in Grant County, cracked with the help of a sample of DNA on a whiskey glass. He calls DNA "our biggest tool."

Money to go after cold cases is trickling down to the local level. The Madison Police Department and the Dane County Sheriff's Office are two recent recipients of money from the Department of Justice to pursue cold cases. The cases they are most likely to revisit are the ones they are most likely to solve.

"The important thing is, what is the evidence, and are the people who are tied to the case still around," says Madison police Capt. Jay Lengfeld, who is heading up the cold case initiative for the department.

Cases like the Justl, Speerschneider and Stewart murders, where the evidence is nonexistent, are unlikely candidates for review under the new initiatives.

"It's difficult to use the advances of forensic science if you have nothing to apply it to," Lengfeld says.

Years ago, Genevieve Justl had a visit from a friend of her dead son. The man told her he believes that his adopted father, who was then an official in the justice system and is now deceased, ordered the murder. According to police records, the same man called police in 2004 to say that before Justl's murder his father sexually assaulted his wife, and Justl threatened to turn him in.

Detectives in the case didn't buy it. The man had mental health issues and kept changing his story. And the killing didn't appear to be premeditated. While the media reported that Justl was strangled, Reinstra says he was beaten and stomped to death.

"If you're going to kill someone, you'd think you'd take a weapon with you," says Reinstra. "A firearm or something lethal rather than stomping someone to death."

Reinstra believes the killer was likely in the midst of a burglary when Justl came home and surprised him. Parts of the funeral home were ransacked, and several things were taken, including several bottles of liquor. Among them was a brand of champagne that was not widely available in Madison. Reinstra believes that a man who left town shortly after the murder, and who had given a bottle of the same champagne to a girl before he left, likely committed the crime. Before leaving town, Reinstra says, the man made a comment to his girlfriend about how he had hurt someone badly and was going to leave town and check himself into a mental hospital. In 2004, Reinstra interviewed the suspect.

"Of course, the man I talked to wasn't very cooperative," he says.

Without any evidence, there's nothing to tie him or anyone else to the crime.

"Either you'd have to have someone come forward and give a detailed statement of what happened that's consistent with what we've found, or you'd have to have a confession," Reinstra says. "One of those two things would have to happen."

Genevieve Justl has learned to live with her son's murder, and she says she's even gained strength from the tragedy. But she doesn't trust the police, not after she found out that they destroyed the evidence in her son's murder.

She thinks the man who knocked on her door years ago, Mark's friend, was telling her the truth. And she thinks police were protecting his father.

Who could blame her? Nobody ever offered her a better explanation.

"It was a cover-up, the more I think about it," she says.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
International Association for Property and Evidence
"Law Enforcement Serving the Needs of Law Enforcement"
www.IAPE.org