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Thread: Why Not to Plead Down a Case

  1. #1
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    http://www.madison.com/wsj/home/local/283760

    Can a person who pleaded no contest to a crime have her conviction overturned now that DNA and other forensic tests have exonerated her? That's the question former Milwaukee Police Officer Lawrencia Bembenek wants the U.S. Supreme Court to answer.

    In a petition filed last week, Bembenek, 49, argues she was wrongfully convicted of the 1981 murder of Christine J. Schultz, the ex-wife of her then-husband, Elfred Schultz. Bembenek was released from prison in 1992 after pleading no contest following a secret John Doe hearing. The record of that hearing revealed significant discrepancies in the evidence used to convict her.

    Over the past 16 years, Bembenek has made several attempts to prove her innocence. Since 1992, she has fought for and won the right to new ballistics and DNA testing. But Wisconsin judges all have refused to reverse the conviction, saying Bembenek cannot withdraw her no contest plea. Her most recent court defeat occurred in January, when the Wisconsin Supreme Court refused to take up her case.

    Milwaukee County jurors disregarded eyewitness testimony from the two sons of Christine Schultz that a heavyset man killed their mother. But Bembenek's lawyer, Mary Woehrer, said they heard none of the evidence that's been uncovered in recent years, including:

    • Ballistics testing that shows the murder bullet matches a gun carried by her then-husband, a Milwaukee Police Department detective, and not the off-duty service weapon the prosecution alleged Bembenek used.

    • The presence of male DNA on the victim.

    • Evidence that Schultz was sexually assaulted.

    "Now, more than two decades later, Laurie Bembenek, an innocent woman, cleared by DNA and ballistics evidence and exculpatory evidence previously withheld by the state, still stands convicted of a crime she didn't commit," Woehrer argued in the petition. "She remains an innocent victim of a no contest plea obtained in 1992 while she was in solitary confinement ... (which) allowed her to maintain her innocence and to be immediately released from prison."

    Woehrer argued the nation's high court needs to clarify whether defendants who plead guilty or no contest can obtain and benefit from post-conviction testing that might not have been available at the time of their pleas. She argues Bembenek's plea wasn't made knowingly since key evidence — including the lack of a ballistics match and evidence of a sexual assault — was withheld from the defense.

    Woehrer also urged the justices to take "the opportunity to conclusively establish the burden of proof required for claims of 'actual innocence.'"

    Milwaukee County District Attorney John Chisholm said he wasn't sure what position his office would take on Bembenek's petition without conferring with the assistant district attorney who has handled the case and the state Department of Justice. DOJ has represented Milwaukee County in the appellate proceedings.

    DOJ spokesman Kevin St. John said the department "has received the papers and is evaluating it at this time."

  2. #2
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    Her only remedy at this point is a pardon or a habeas writ. The courts expect the innocent to maintain their innocence througout, despite the fact that the system does nothing but pressure people to accept "deals" under threat of even greater punishment.

    This case may differ, in that potentially exculpatory evidence may have been withheld from the defense. I don't know whether that might have violated discovery- I'm sure the lawyers willbe glad to nit-pick it for another couple of years while she rots.

    -ljp

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    Bembenek was convicted of murdering her husband's ex-wife, Christine Schultz, in Milwaukee, Wisconsin, on May 28, 1981. After escaping prison and being recaptured in Canada she won a new trial. She plead no contest and was sentenced to time served. Since then, she has sought to have the sentenced vacated.

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