An advocate for convicted murderer John Maloney has asked the Wisconsin Supreme Court to investigate allegations that a former state Department of Justice employee committed "forensic fraud" in prosecuting Maloney.
Milwaukee investigative consultant Ira Robins said in a request for a John Doe investigation that retired special agent Greg Eggum of the DOJ's Division of Criminal Investigation falsely testified to conducting burn tests to support his contention that Maloney, a former Green Bay arson detective, set fire to his estranged wife's home in 1998.
Robins, who has also fought to prove the innocence of Laurie Bembenek, filed his request with the Supreme Court on Aug. 29. The filing is based in part on independent testing done by an arson expert whose results contradict those Eggum claimed to get.
Court spokeswoman Amanda Todd said the request is "under advisement," and the court "will likely act on it this fall."
DOJ spokesman Mike Bauer didn't return three phone messages and three e-mails sent to his office over the past week. A message left at Eggum's home in Germantown was not returned. Eggum retired from the DCI after nearly 30 years with the DOJ's investigative arm, and as of 2005 was working as a private fire investigator.
Maloney, who's serving a life sentence for arson and murder, has steadfastly maintained his innocence. Maloney was prosecuted by former Winnebago County District Attorney Joseph Paulus, now serving a nearly five-year prison term in a Florida federal prison for taking money to fix more than two dozen cases. Paulus awaits sentencing on two state charges related to the bribery scheme, including one count of lying to judges in the fixed cases.
Robins contends the results Eggum said he obtained in two tests are "scientifically impossible," and he questioned why DCI has offered no documentation of the tests. Eggum's ruling of arson reversed an earlier opinion by the Brown County Arson Task Force, which found that the fire was accidentally set by a heavily intoxicated Sandra Maloney through the careless use of smoking materials.
Former Brown County Medical Examiner Gregory Schmunk told the State Journal in 2004 that he no longer stands by his ruling of homicide because he was unaware of the initial finding that the fire was accidental. He said he based his homicide ruling in part on the fact that Eggum deemed the fire an arson.
Schmunk said Monday that if Eggum conducted tests without documenting them, that would be "against any scientific principle out there.
"Science is always about documentation, especially if the results are ... to be used in a court of law," said Schmunk, now the medical examiner for Polk County, Iowa, which includes Des Moines. "I am sure that any criminalist would tell you the same thing."
In a review of the cause of death, however, Madison attorney Stephen Meyer concluded, "Sandy Maloney was manually strangled. There is no question in my mind," he said.
Meyer's review -- conducted at the request of the Justice Department because of mounting questions about Maloney's innocence -- included interviews with the Milwaukee County medical examiner who autopsied Sandra Maloney's body and autopsy photos.
But Meyer did not review the arson ruling. If Sandra Maloney were murdered, Meyer said, the cause of the fire is irrelevant.
\ Vodka as accelerant?
At trial, Eggum testified that he believed Maloney set fire to Sandra Maloney's living room by pouring vodka on the floor. He cited deep burn patterns on the floor near the couch as evidence that an accelerant was used to set the fire, and he theorized that 80-proof vodka from bottles at the scene was the source.
Eggum said in his official arson ruling that the burns didn't come from the couch cushions because he had test-burned a similar cushion and the material did not "run" when ignited. At trial, Eggum testified that he set fire to vodka and it burned "very, very clean and very hot," which he said would explain why investigators found no trace of an accelerant at the scene.
In an e-mail interview with the Wisconsin State Journal last year that is cited in Robins' petition, Eggum declined to discuss the tests and did not respond to direct questions about whether he had conducted them. In his petition, Robins said the sofa test is undocumented.
"There was no separate report, no still photographs, no video and no corroborating witness(es)," he said.
Robins noted that tests done by Alabama arson expert James Munger contradict Eggum's results. A video of Munger's tests showed that melted polyurethane couch cushions poured onto the floor when ignited. (See a short version of Munger's test at www.madison.com/wsj.) Munger was asked to examine the case by Sheila Martin Berry of the Virginia-based group Truth in Justice.
"What we saw was that polyurethane foam, when it is ignited, will melt and drip and run. It turns into liquid fire," Munger, a former Alabama deputy state fire marshal, said in an interview with the State Journal.
In a separate test, Munger showed that the vodka Eggum theorized was the accelerant quickly put itself out without scorching the carpet because, said Munger, "it's 60 percent water."
A video of Munger's test shows a blue flame spreading across a carpet for several seconds, then extinguishing without burning the gray carpet below. Munger said he repeated the test several times and the result was the same.
"Even after that (alcohol) is burned, once the water goes away, there's no evidence that fire was there (on the carpet) -- not one," Munger said.
Robins' petition was filed under a section of state law that allows a person to petition a judge if he or she believes a crime has been committed. The law says the judge shall "examine the complainant under oath and any witnesses produced by him or her" to "ascertain whether a crime has been committed and by whom." Such proceedings are most often used by district attorneys, who have the option of asking a judge to keep the investigation secret.
Berry also filed a complaint with the Justice Department against Eggum in July that raised issues similar to Robins' petition. In letters to Berry, Assistant Attorney General Roy Korte said the DOJ wouldn't investigate the complaint because the deadline to file it passed in 2004 and the department had a conflict of interest because Eggum is a former employee.
\ Watch a narrated portion of James Munger's burn test at www.madison.com/wsj.
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