| On June 11, 2002, a 23-year-old woman reported to police in Kaukauna, Wisconsin that 25-year-old Maxwell Verkuilen raped her after she drove him home from a tavern.
The woman said she met Verkuilen that night in the bar and after 2 a.m., she gave him a ride to his home. She told police that she went inside and while watching television, they began kissing and he fondled her breasts. She said she told Verkuilen to stop and he did. Later they went upstairs to Verkuilen’s bedroom. There, she said, Verkuilen engaged in oral, anal and vaginal sex without her consent. She said that they both eventually got dressed and after he walked her to the front door, she ran to her car and drove home.
After filing a police report, the woman was taken for medical treatment where she was examined by Jean Coopman, a registered nurse and also a certified sexual assault nurse examiner (SANE). Coopman documented approximately twenty-two injuries in six vaginal and anal areas.
Three days later, on June 14, 2002, Verkuilen was arrested and charged with two counts of third-degree sexual assault.
Verkuilen went to trial in Outagamie County Circuit Court in August 2003. In addition to the woman’s testimony that she was raped, Coopman testified that the woman’s injuries were consistent with nonconsensual sexual assault and that she could think of no other explanation that would account for the injuries.
Verkuilen testified on his own behalf and told the jury that the sexual encounter was consensual.
On August 27, 2003, Verkuilen was convicted of two counts of third-degree sexual assault. He was sentenced to four years in prison.
In January 2005, Verkuilen filed a post-conviction motion for a new trial claiming that his trial lawyer had provided a constitutionally inadequate defense by failing to call a medical expert to rebut Coopman’s testimony.
At a hearing on the motion, Verkuilen’s attorney presented the testimony of Maureen Van Dinter, a nurse practitioner who taught the proper method for performing sexual assault examinations at the University of Wisconsin School of Medicine. Van Dinter, after reviewing police reports, Coopman’s notes, and a transcript of Coopman’s testimony, identified several inconsistencies. She noted that a “wet prep” test revealed no bacteria, semen, parasites, or blood on a vaginal swab—contrary to Coopman’s testimony about evidence of bleeding.
Van Dinter testified that although the woman testified that she had significant vaginal bleeding, she had not reported that symptom on her pre-exam form and Coopman had not documented any bleeding.
Van Dinter also testified there was no way to say, to any degree of scientific certainty, that the woman’s injuries were the result of nonconsensual sex. Van Dinter testified that the injuries could be consistent with consensual intercourse, although she could not completely rule out nonconsensual sex.
Van Dinter said Coopman’s anatomical diagrams were inaccurate. One of the documented lacerations appeared, on the diagram, to be 1.5 centimeters deep. Van Dinter testified that a wound that deep would indicate serious trauma and would likely have required sutures, but Schubert received no stitches.
Van Dinter also criticized Coopman’s reliance on a journal article, which Coopman used as a basis for concluding the sheer number of injuries indicated assault. Van Dinter testified that the article had been based on the anecdotal evidence of two cases and therefore “would not be accepted at all under current medical standards as something that could be relied upon in fact.”
Verkuilen’s lawyer at the trial testified at the post-conviction hearing that he did not seek an expert witness, but did consult prior to the trial with a nurse with whom he had worked on previous cases. The nurse told him that it was possible the injuries could have come from a prior sexual encounter or could have been the result of consensual sex with someone with a larger than average penis, but she could not exclude non-consensual sex as a source of the injuries.
The defense lawyer said he feared calling the nurse as a witness would result in testimony that bolstered the prosecution case. He said he did not seek an expert witness because he didn’t want to appear to be witness shopping.
Following the hearing, Verkuilen’s motion for a new trial was denied. But in January 2007, the Wisconsin Court of Appeals vacated Verkuilen’s convictions and ordered a new trial. The court held that the failure to obtain an expert witness resulted in Verkuilen receiving a constitutionally unfair trial.
The appeals court noted that Verkuilen’s attorney “knew Coopman would say the encounter was nonconsensual and produced nothing contradictory other than Verkuilen’s own protestation of innocence despite knowing the alternate theories were considered plausible.”
The appeals court said that “the failure to call an expert to rebut Coopman effectively stripped Verkuilen of any defense. Coopman essentially rendered impossible Verkuilen’s claim the sex was consensual. An expert witness such as Van Dinter, who could testify there might be another explanation for the injuries even if she also conceded the State’s expert could be correct, would have at least offered the jury an alternate scientific or medical basis for acquittal.”
The court added that the failure of Verkuilen’s trial lawyer to find such an expert “essentially conceded the case before Verkuilen ever took the stand.”
The appeals court rejected the trial lawyer’s fear of being perceived as witness shopping, saying that the lawyer “knew, from speaking with his own nurse, that there was some plausibility to his alternate theories. Thus, he could have sought an expert who would have made a better witness.”
On February 5, 2007, Verkuilen was released on bond pending a new trial.
Verkuilen's defense lawyers then filed a motion asking the judge to order the prosecution to disclose the complainant's medical records, which included an examination conducted after the SANE nurse examination. The second examination failed to find nearly all of the injuries that the SANE nurse claimed to have found. The motion also requested counseling records for the woman, which included discussions of the allegations in the Verkuilen case as well as a prior rape claim the woman made against someone else. When these records were not disclosed, the trial judge entered an order prohibiting the testimony of the complainant unless they were provided to the defense.
On August 20, 2007, the prosecution dismissed the charges.
In December 2014, the Wisconsin Claims Board awarded Verkuilen $25,000 in compensation--$15,416 for the three years and nine months he was incarcerated and $9,600 for post-conviction legal fees. Verkuilen also obtained a $456,000 malpractice judgment against his trial attorney, Joseph Norby, who then declared bankruptcy so that Verkuilen would not be paid.
– Maurice Possley
|