In the mid-1990s, Steve Armstrong confessed to the 1980 murder of a UW-Madison student for which his brother Ralph Armstrong was convicted, according to a new filing with a state appeals court. Police, it says, failed to investigate and the prosecutor took steps to destroy evidence that could have proved Ralph Armstrong's innocence.
"[T]he state deliberately suppressed and withheld, for approximately the last thirteen years, information that a known third party confessed to the rape and murder of the victim in this case," states the brief, filed on April 17 by Armstrong's defense attorneys, Jerome Buting of Brookfield and Barry Scheck of New York. The brief to Wisconsin's Dist. 4 Court of Appeals calls this confession "exculpatory evidence supporting the claim of Ralph Armstrong that he is innocent of this crime."
It goes on to say that former Dane County assistant district attorney John Norsetter, Armstrong's original prosecutor, was personally contacted by one of the individuals to whom Steve Armstrong confessed. But Norsetter, who retired from the office last year, allegedly not only failed to investigate or notify Armstrong's defense attorneys of this confession, he subsequently ordered a test that destroyed evidence that could have established Steve Armstrong's guilt.
"To even attempt such a test without telling the court or the defense about the third party's confession was at best reckless, at worst, a deliberate attempt to manipulate the truth and frame an innocent man," the filing states.
Ralph Armstrong, now 55, was convicted in 1981 of killing UW-Madison freshman Charise Kamps, 19, in a downtown Madison apartment; he has always maintained his innocence. In 2005, the Wisconsin Supreme Court overturned his conviction, after tests excluded him as the source of crime-scene DNA. The Dane County District Attorney's Office is preparing to retry the case.
The filing from Buting and Scheck, the latter a nationally known criminal defense attorney and co-director of the Innocence Project at Cardoza Law School, is accompanied by two affidavits, from Texas residents Fawn Elaine Cave and Debbie Holsomback. Both give nearly identical accounts of an encounter with Steve Armstrong that took place in the summer of either 1994 or 1995. (Holsomback recalls that it was 1995; Cave says it was either 1994 or 1995.)
According to both women, they met Steve Armstrong during a visit to Cave's mother in Roswell, Texas. Steve Armstrong, they say, at one point commented that he knew his brother Ralph was not guilty and was worried what Ralph might do to him when he got out of prison. He said, by way of explanation: "Ralph didn't do it. I did it."
Steve Armstong, states the affidavit from Holsomback, proceeded to relate graphic details of the murder, "including that he used a broom on the victim with a sharp object attached." The filing from Buting and Scheck says these details are "consistent with both the publicly known and unknown facts of the Kamps homicide."
The affidavit says Steve Armstrong was in Madison at the time, visiting his brother. Both men were initially detained by police. Ralph was subsequently charged with the crime. Steve was released and returned to Texas. He died in Tennessee in July 2005.
Both Cave and Holsomback made efforts to report to authorities what Steve Armstrong had said, despite his having sent them off with a warning that he knew where they lived and forming his hand into a "gun" position. Cave says she contacted the FBI and possibly the police in Roswell. Holsomback says she called the Dane County District Attorney's Office and spoke with a man named "John" who identified himself as Ralph Armstrong's prosecutor. The filing identifies this individual as John Norsetter.
Both women say their reports were not taken seriously. Norsetter purportedly told Holsomback that he had no doubt he had convicted the right man.
According to Buting and Scheck, neither Norsetter nor anyone else from the Dane County's District Attorney's Office ever called their attention to the fact that it received information about Steve Armstrong's remarks. They say that while there is some doubt about the state's obligation to provide this information post-conviction, it had a clear duty to do so since 2005, when Ralph Armstrong's conviction was overturned and a new prosecution pending, under a case known as Brady.
But the filing states that Norsetter did more than simply not tell Ralph Armstrong's defenders about this disclosure. It says that in 2006, he violated a court order in ordering a DNA test on a remaining sample of crime scene DNA that effectively destroyed the sample. Moreover, the type of test ordered, a Y-STR test, looked at only a part of the DNA profile that for paternally related individuals would have been the same.
"Mr. Norsetter's decision to conduct DNA tests that he knew would not be able to distinguish brothers from each other, when he knew that Armstrong's brother had confessed to the crime, without telling the court or the defense about the confession, was nothing less than reckless and outrageous conduct," the brief states. "In the process of using this deceptive ploy, he destroyed [the] semen stain which contained the more discriminating nuclear DNA that could have distinguished Ralph from his brother…"
Buting and Scheck ask the appeals court to order further proceedings on these new disclosures. "In addition," they say, "because of the legally and ethically serious nature of this evidence, the Court should take immediate custody of the DA's trial and post-conviction file in this case, copy it and seal it for safekeeping until further independent review can determine the true extent of this or any other Brady, due process or ethical violations. It also asks for all documents regarding Steve Armstrong to be "promptly disclosed to the defense."
A call left at the Madison home of John Norsetter was not immediately returned. Dane County DA Brian Blanchard says he cannot comment, as he has not yet spoken with Norsetter about the matter and has no information beyond what was provided in the filing with the appeals court.
On April 24, the state responded, opposing the motion by Armstrong's attorneys to allow in this new evidence. The response brief (PDF) from Assistant Attorney General Sally Wellman says the affidavits from Cave and Holsomback do not establish that Norsetter deliberately withheld evidence or even that Norsetter was contacted by Holsomback. It called the affidavits "mere allegations of facts, allegations which are unconfirmed and unproven."
Wellman's brief goes on to assert that the allegations in Armstrong's motion "have absolutely no relevance" to his pending case. It says it would be "wholly improper" for the appeals court to allow the record to be supplemented with this new information, but concedes that it is within the court's power to send the case back to circuit court for an evidentiary hearing.
Armstrong, the state argues, cannot be granted any additional relief beyond a new trial, which the Supreme Court has already ordered. Finally, it opposes the request to secure the case file, saying no due process or ethical violations have been established.
Update: Shortly after 1 p.m., John Norsetter returned Isthmus' call and declined to comment, saying the matter is now pending before an appellate court.