Milwaukee judge blocks DNA evidence in Washington Park homicide, assails deputy for 'monstrously false' statement

A Milwaukee County circuit judge will not allow DNA evidence at trial that prosecutors argue links a 16-year-old to the fatal beating of a woman in Washington Park, saying a sheriff's detective made "monstrously false" statements to get the teen to surrender a sample.

Kevin T. Spencer Jr., 16, was charged as an adult in Milwaukee County Circuit Court in the death of Ee Lee, a 36-year-old woman who was found severely beaten, partially nude and unconscious at the edge of the pond in Washington Park on Sept. 16, 2020.

Lee died from her injuries Sept. 19, 2020, which included multiple brain and head injuries and injuries associated with rape, according to court records.

Spencer is one of two teenagers charged with first-degree intentional homicide and first-degree sexual assault in Lee's homicide and rape. If convicted, he could face life in prison.

The evidence against Spencer includes DNA analysis. Spencer’s DNA was found in samples taken from Lee’s body during a sexual assault examination and on clothes of hers collected from the scene of the attack, according to court records.

Attorneys for Spencer argued that evidence should not be allowed at trial because Spencer's DNA was collected without a warrant and that when Spencer agreed to give his DNA, his consent was not "voluntarily and intelligently" given.

More: Two teens, 15 and 17, charged with homicide in beating, assault of woman in Washington Park

Spencer was in custody in January 2021 when detectives with the Milwaukee County Sheriff's Office tried to question him about the assault in Washington Park. By the time a detective asked to take a swab of Spencer's mouth for DNA, Spencer had already invoked his right to an attorney, defense attorney Jeffrey Jensen said. On top of that, the detective "misled" Spencer — who was 15 years old at the time — by telling him the swab had "nothing to do" with his constitutional rights, Jensen said.

Circuit Judge David Borowski agreed and ruled in favor of the defense's motion to suppress the DNA evidence during a hearing Friday, in which he also sent a pointed message to law enforcement.

"There is no way in good conscience I, as a judge, could tolerate this," Borowski said during the hearing. "The detective needs to know better, law enforcement needs to know better."

Borowski pointed to an audio recording of the detective telling Spencer, "I want to ask you if we can take a swab of your mouth. ... It has nothing to do with testimony or your constitutional rights."

Borowski called the statement either an "utter lie" or "total ignorance" on the detective's part before saying he would grant the defense's motion.

Borowski said it would not have been difficult for law enforcement to seek a search warrant, and that court commissioners sign scores of them every year.

"I am, again, frustrated," he said.

County prosecutors argued law enforcement was allowed to ask for Spencer's consent and that Spencer did, in fact, consent to giving a DNA sample, court records indicate. According to court records filed by the defense, Spencer also signed a consent form.

County prosecutors have said they would seek a search warrant to obtain a new mouth swab from Spencer and re-do the DNA analysis, if Borowski invalidated the first one.

Borowski told prosecutors to submit the request for a search warrant to him by March 1. The defense, he said, would have an opportunity to object to that request.

Jensen has argued if law enforcement is allowed to get a warrant now, after violating his client's rights, it would do nothing to deter law enforcement from making illegal searches in the future.

DNA evidence is often "the most important evidence in a criminal case," especially sexual assault cases, Jensen said in a court filing. He characterized DNA evidence as "on the verge of being scientifically unassailable."

At the same time, the DNA evidence is not the only evidence against Spencer, according to court records. A few people who were present during the attack told investigators they witnessed Spencer and his co-defendant Kamare R. Lewis punch, kick and beat the victim with sticks, according to the complaint.

More: One teenager charged in Ee Lee homicide in Washington Park pleads not guilty

One witness alleged Spencer and Lewis pulled off her clothes and dragged her to the edge of the pond, where the assault continued.

Another said he witnessed part of the sexual assault. During questioning by law enforcement, Lewis downplayed his alleged involvement in the attack, but implicated Spencer in most of the attack and rape, according to the complaint.

Spencer is scheduled to have a final pretrial hearing on March 21. Trial is scheduled to begin May 9.

The headline of this story has been updated to clarify that it was a sheriff's deputy who made the statement.

Sarah Volpenhein is a Report for America corps reporter who focuses on news of value to underserved communities for the Milwaukee Journal Sentinel. Email her at svolpenhei@gannett.com. Please consider supporting journalism that informs our democracy with a tax-deductible gift to this reporting effort at JSOnline.com/RFA.

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This article originally appeared on Milwaukee Journal Sentinel: Milwaukee judge blocks DNA evidence in Washington Park fatal beating