Police blotter: Computer logs as alibi in wife's death

Court of appeals upholds conviction of man who says he was editing photos as wife searched online for ways to commit suicide.
Written by Declan McCullagh, Contributor
"Police blotter" is a weekly News.com report on the intersection of technology and the law.

What: Douglas Plude, convicted of his wife's murder, says computer logs provide an alibi. Plude, who lived in Wisconsin, claims his expert had insufficient time before trial to review them.

When: Wisconsin Court of Appeals rules on March 6.

Outcome: Conviction upheld and no new trial granted.

What happened, according to court documents:
Douglas Plude says he found his wife Genell slumped over a toilet bowl on October 22, 1999. Genell was not breathing so he attempted CPR while yelling to wake his mother in the other room, Plude says. They were staying at his mother's home.

Genell, 28, was eventually declared dead at 6:50 a.m. thanks to a fatal dose of Fioricet-codeine, a drug used to treat headaches, in her system. Police theorize that Plude killed his wife by poisoning her with the drug and, while she was vomiting, shoving her face into the toilet to drown her. For his part, Plude insists his wife's death was a suicide.

During the trial, there was conflicting evidence about Genell's cause of death. The prosecution's expert thought the fluid in Genell's lungs was more likely than not a mixture of water and vomit from the toilet. The defense expert said that fluid in Genell's lungs was pulmonary edema, caused when the Fioricet slowed her heart and reduced her blood circulation.

What makes this case relevant to "Police blotter" is that the family had two computers, a Compaq and a Packard Bell.

On the night of October 21, shortly before Genell died, both computers were active around 10 p.m. Genell's computer shows the user conducted online searches for information on Fioricet. Plude's computer shows Internet activity and use of a photo editing program between 10 p.m. and 10:30 p.m.

Plude claims that parallel activity indicates that Genell was looking up information about Fioricet, buttressing the conclusion of suicide. He also says that Wisconsin police had seized the hard drives in 1999 but unreasonably dragged their feet in handing over the evidence until 2002, just a few weeks before his trial began. (This isn't the only time that computer evidence has become an alibi; it appeared in a Texas case last year.)

It's clear that the government had seized both computers and copied the hard drives with the EnCase mirroring technology. Made by Guidance Software, EnCase Forensic is billed as the "industry standard in computer forensic investigation technology" and can handle Windows, Linux, Mac OS X and other operating systems.

The trial judge ruled that waiting three years to turn over key evidence was reasonable. A jury convicted Plude of first-degree homicide, and he was sentenced to life imprisonment, with eligibility for parole after 20 years. Plude appealed, asking for a new trial based in part on the prosecution's intentional delay in turning over the images of the hard drives.

A Wisconsin appeals court has denied his request by a 2-1 vote and affirmed his conviction, ruling that "although the state concedes it first made EnCase discs in 1999 and it was not until 2002 that Plude had copies, this is not fatal. Wisconsin Stat. 971.23 requires the state to turn over evidence within a reasonable time before trial, not as soon as it is in the state's possession."

Even if the computer searches had been thoroughly explored, the majority concluded, they wouldn't be entirely exculpatory: "Whoever performed the search on Genell's computer only examined the first page of various results--no page with dosing information was ever displayed on the computer."

The majority also pointed to a bruise on Genell's neck that could not adequately be explained by CPR, evidence that she might have decided to become a lesbian and leave her husband, and a call that Plude made to Genell's employer on the day of her death asking about her paycheck and insurance policy.

What's worth noting, though, is that the prosecution's expert witness turned out to have been lying about his qualifications. Saami Shaibani claimed to have been a clinical professor of physics at Temple University, but the defense found out after the trial that he had no affiliation with Temple at all. (That apparently came to light in another trial in which Shaibani was found to have lied as well.)

Shaibani had testified that his reconstruction showed Genell had to have been murdered because an external force was required to keep her head in the water. But the majority of the appeals court said the revelation was not enough to grant Plude a new trial.

Excerpts from the majority's opinion written by Judge Michael Hoover:
In October 2002, a change was made to the EnCase technology, making the contents of the discs more easily accessible or readable. Discs made with the new technology reached the defense on November 8, 2002. For the first time, Plude claims, the defense could see what each computer was being used for...

Around November 10 or 14, defense counsel reviewed the discs and discovered Genell's computer was used to search for information on Fioricet. On November 21, counsel hired a computer expert and began trying to make an appointment to view the actual hard drives held at the sheriff's department. The state, reluctant to allow examination of the original drives because of how readily changes can be made, eventually agreed. The appointment was for November 29, but Plude's expert was unable to make the trip because of other commitments. Plude hired a technician, Jill Claimore, from a computer store to help counsel examine the drives. Plude claims that he first became aware that the computers displayed parallel activity as a result of Claimore's inspection. At the time Genell's computer was being used to search for Fioricet, his computer was using a photo editing program.

Because it was not until November 29 that Claimore discovered the allegedly exculpatory information, Plude asserts the state's discovery obligation was not timely completed. Rather, he asserts that he did not obtain necessary information until the last business day before trial. This complicated his defense because, he asserts, he was not able to secure an expert witness to explain the computer evidence....

While we agree that turning over potentially exculpatory evidence on the last business day before trial would be unreasonable in this case, we cannot say that a span of three weeks suffers the same presumption... To the extent Plude complains that he could not effectively access that information, the state responds that Plude could have requested the state crime lab to analyze the data for him. Plude does not refute this argument. Additionally, part of Plude's difficulty appears to arise from his failure to timely hire a computer expert. This is not a delay attributable to the state.

Excerpt from dissent by Judge Thomas Cane:
To set the scene and appreciate the importance of the state's expert Dr. Saami Shaibani's false testimony, a brief prelude is necessary. At trial, conflicting expert medical testimony was presented concerning Genell's death... In order to prove its homicide case, the prosecution had to show that Genell could not have inhaled the toilet water herself. This is where Shaibani was called to testify about his variety of experiments and his expertise to conclude Genell had been forcibly drowned. In fact, it appears that this was a primary focus of the trial covering extensive pages of testimony. Unfortunately, Shaibani misrepresented his professional credentials in large part when testifying to the jury...

I emphasize Shaibani's testimony not for whether his conclusions were true or false, but to show the importance of his false testimony. At the beginning of his testimony, Shaibani outlined to the jury his credentials, which appeared impressive...

As was learned after trial and the state concedes, any representation that Shaibani was employed by or affiliated with Temple University was simply untrue. One must keep in mind that when testifying as to his conclusions, the jury believed he was a clinical professor who taught at a university the mechanics of injury to highly professional medical personnel. His impressive credentials were undisputed at that time...

In my opinion there is a reasonable likelihood these material false representations as to his professional qualifications affected the jury's judgment, requiring a new trial... Without this extremely critical testimony for the prosecution, it is unlikely the state could have proven a homicide.

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