Strange Toilet Test at Issue in Wisconsin Murder Trial

[WSJ_law_blog]

An AP story from Sunday opens with this odd line: “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.”

We’re of half a mind to end the post there, but here’s the explanation: The district attorney way up in Vilas County plans to recruit volunteers for a second round of tests designed to prove that a woman was drowned by her husband in a toilet -- and didn’t commit suicide as he claims. (For this task, we hope that by “volunteer,” the district attorney really means “someone to whom we will pay a significant sum of money.”)

Prosecutors contend Douglas 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 and 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 that he tried to perform CPR to keep her alive.

Plude was convicted of murder back 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. The expert had testified that Plude’s wife could not have inhaled toilet water on her own.

Defense lawyers from across the country have derided the tests and call them an example of unfair expert testimony.

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.

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. 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.”