"SHAIBANI SAID THAT, BASED ON HIS TESTS INVOLVING VOLUNTEERS HE POSITIONED AT A TOILET, PLUDE HAD TO BE LYING ABOUT THE POSITIONS HE CLAIMED TO HAVE FOUND HIS WIFE IN. GENELL PLUDE ALSO COULD NOT HAVE INHALED TOILET WATER ON HER OWN AND SOMEONE MUST HAVE FORCED HER HEAD INTO THE WATER, HE TESTIFIED.
DEFENSE LAWYERS FROM ACROSS THE COUNTRY HAVE DERIDED THE TESTS AND CALL THEM AN EXAMPLE OF UNFAIR EXPERT TESTIMONY. ONE OF THEM, NORTH CAROLINA LAWYER DAVID RUDOLF, WHO CLASHED WITH SHAIBANI IN ANOTHER CASE, LAUGHED ABOUT THE TESTS IN AN INTERVIEW LAST YEAR.
"HE HAD WOMEN STICKING THEIR HEADS IN TOILETS!" HE SAID. "THAT'S JUST NOT SCIENCE. HOW DO YOU PEER REVIEW THAT? HOW DO YOU TEST HIS CONCLUSIONS?""
RYAN J. FOLEY; ASSOCIATED PRESS;
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Three cheers to the Associated Press for exposing the efforts of Wisconsin prosecutors to introduce evidence on a par with Michael West and Steven Haynes's bite marks, Louise Robbin's "Cinderella" footprints, Cornelis van der Lugt's earprints and Dr. Charles Smith's incriminating observations during autopsies that no-one else could see.
As defence lawyer David Rudolf put it: "He had women sticking their heads in toilets...That's just not science. How do you peer review that? How do you test his conclusions?
Fortunately the Wisconsin Supreme Court threw out Douglas Plude's 2002 homicide conviction - and he is out of custody on bail pending a new trial - but as the Associated Press story indicates, the prosecutors are soldiering on.
The A.P. story, by reporter Ryan Foley under the date-line Madison, Wis. ran yesterday under the heading "Toilet test contentious issue in Wis. slaying case."
"If you are a female about 5 feet 8 inches tall, 140 pounds and willing to stick your head in a toilet, a northern Wisconsin prosecutor wants your help in proving a high-profile homicide case," the story begins;
"The Vilas County district attorney plans to recruit volunteers for a second round of controversial tests designed to prove that a woman was drowned by her husband in a toilet — and didn't commit suicide as he claims," the story continues;
"The experiments involve positioning women the size of the late Genell Plude of Land O' Lakes at a toilet to determine whether the version of events told by her husband, Douglas Plude, is plausible.
Defense lawyers say it's junk science.
Plude, 42, was convicted of first-degree intentional homicide in 2002. But the Wisconsin Supreme Court threw out the conviction last year after learning that an expert witness who conducted the first round of toilet tests exaggerated his credentials. Plude has been released from prison pending the second trial, which is expected to begin in October.
Prosecutors contend Plude murdered his 28-year-old wife because she was about to leave him. They say he poisoned her with a migraine drug and pushed her face into the toilet to drown her while she vomited.
Plude says his wife was depressed, committed suicide by taking the pills on her own and then drowned. He claims he found his wife slumped over the vomit-filled toilet and tried to perform CPR to keep her alive.
Prosecutors called on expert witness Saami Shaibani to shoot down Plude's story at the first trial.
Shaibani said that, based on his tests involving volunteers he positioned at a toilet, Plude had to be lying about the positions he claimed to have found his wife in. Genell Plude also could not have inhaled toilet water on her own and someone must have forced her head into the water, he testified.
Defense lawyers from across the country have derided the tests and call them an example of unfair expert testimony. One of them, North Carolina lawyer David Rudolf, who clashed with Shaibani in another case, laughed about the tests in an interview last year.
"He had women sticking their heads in toilets!" he said. "That's just not science. How do you peer review that? How do you test his conclusions?"
The state high court ordered a new trial for Plude after discovering Shaibani lied about being a clinical associate professor at Temple University who taught physicians and surgeons there about injuries. He had no relationship with Temple; years earlier he had a "loose courtesy affiliation" that gave him parking privileges but little else.
The Wisconsin Department of Justice is considering whether to charge Shaibani with perjury.
Unfazed by the controversy, Vilas County District Attorney Al Moustakis has hired Christopher Damm of the Milwaukee School of Engineering to do a second round of tests. Judge Neal Nielsen III last month granted his request to allow the testing of the toilet and a floor display of the bathroom in the court's custody.
"The testing is likely to be the same type of testing that Shaibani did," Moustakis said.
Prosecutors routinely re-create crime scenes to prove their theories of crimes and hire accident reconstruction experts to analyze what might have caused someone's death, said Gerald Mowris, former president of the Wisconsin Association of Criminal Defense Lawyers.
"It's really a question of, is the testing done properly, is it done according to scientifically accepted standards and is it by someone who is a qualified expert?" he said. "There are people who hold themselves out as experts who aren't experts. That's a major issue."
He added: "The type of test you're describing — whether someone could drown in a toilet or would need help — I'm not sure the type of expert who would be able to testify about that. I don't know what the purported qualifications of the new expert is. The old one was essentially a charlatan."
Damm, an associate professor of mechanical engineering, said he is a consultant in accident reconstruction and has testified in civil cases but this would be his first criminal case.
He said he was still reviewing testimony from the first trial and hadn't yet designed the tests, which are expected to take place in June, but agreed they would be similar to Shaibani's.
As for claims that it's junk science, he said: "I don't think you can make blanket statements like that. It would take an understanding of why the tests are being done and the methods that were used."
Moustakis noted Shaibani's conclusions were in line with some of the other evidence, including bruising Genell Plude had on her neck.
Other medical testimony was inconclusive on the cause of death.
Harold Levy...hlevy15@gmail.com;
