Madison man, who has served more than six years in prison, is ordered released

This is from late last year but I missed it at the time. Very poor eyewitness ID; Good alibis ignored; rigged ID parade; DNA finally settles it

A Madison man who served more than six years in prison for a sexual assault he said he didn't commit was ordered released Friday after a Dane County Circuit judge overturned his conviction.

Judge Patrick Fiedler cited new DNA evidence and newly developed scientific research on faulty eyewitness identification in throwing out his own judgment of conviction in the 2002 case against Forest Shomberg.

Shomberg's attorney, Byron Lichstein of the Wisconsin Innocence Project, praised the decision. "I think the judge followed the law and found significant new information that came up since the trial," he said.

Shomberg's longtime girlfriend, April Anello, cried as Fiedler announced his decision. "I honestly didn't think they'd be able to pull it off," said Anello, who was with Shomberg the night of the attack. "This has been going on so long - six and a half years."

Shomberg, 45, was convicted in Dane County Circuit Court for the March 9, 2002, attack on a UW-Madison freshman. The woman was grabbed from behind and forced into a dark alley near State and Frances streets. The attacker groped her through her pantyhose.

The perpetrator fled when security guard Alan Ferguson arrived after hearing the victim's screams. Both told police that it was dark and they got just a single fleeting glimpse of the man's face. But Ferguson later testified that he got a second look at the attacker, something he failed to report to the police or in his detailed handwritten account compiled right after the incident.

Based on descriptions by Ferguson and the victim, Madison Police developed a sketch of the man. After the composite was published, two people who knew Shomberg reported that he resembled the sketch. Shomberg then was picked out of a six-man lineup by both Ferguson and the victim, who reported that Shomberg "definitely was the closest" because the other five in the lineup were either too big or too old.

Shomberg sought to counter the prosecution by providing three people - including Anello - who testified they were with Shomberg 30 blocks away at the time of the attack, which occurred about 3 a.m. But Fiedler, who heard the case without a jury at Shomberg's request, discounted that alibi.

Suspect's DNA not found

Friday's decision was the culmination of a series of failed appeals that stretched up to the Wisconsin Supreme Court. After his conviction, Shomberg argued, unsuccessfully, that Fiedler should have allowed him to present expert testimony about the unreliability of eyewitness identification.

This time around, Shomberg was armed with powerful new evidence not available in 2002: Post-conviction testing that revealed none of his DNA on the victim's panythose. The testing was the result of "touch DNA" technology that can detect DNA left behind by a person's touch. The victim reported the attacker had violently groped her for about two minutes.

While unknown male DNA was found on four locations on the pantyhose, Shomberg's was not. "If Shomberg was the perpetrator, one would have expected to discover his DNA there, and thus the absence of his DNA is significant evidence that he was not the perpetrator," Lichstein argued.

Dane County Assistant District Attorney Robert Kaiser countered that "the evidence that the defendant claims has to have been there is fragile and could've fallen off."

But Lichstein said there was "no reason to think the perpetrator left DNA, it fell off, and somehow other DNA didn't fall off."

Eyewitness testimony disputed

During the two-day hearing, Lichstein presented an expert in eyewitness testimony, Otto MacLin, associate professor of psychology at the University of Northern Iowa. MacLin testified that many factors can lead witnesses to misidentify a perpetrator.

One of those is working with police to develop a sketch. MacLin said that process can "contaminate" witnesses' recollections by causing them to recall the composite they helped to draw up rather than the face they actually saw. He added research has shown that such drawings, when compared to known perpetrators, are "not very accurate."

MacLin described problems with simultaneous lineups, such as the one used in the Shomberg case, where witnesses may choose the person who most closely matches their memory - whether the perpetrator is among the group or not.

To gauge the validity of the lineup, MacLin asked 54 students with no knowledge of the case and armed only with the description offered by the two witnesses to choose one of the six men based on that description. The students overwhelmingly chose Shomberg, meaning the so-called "fillers" in the lineup weren't close enough matches to the suspect description to make it a fair lineup, Lichstein argued.

Lineups, sketches discouraged

Since the Shomberg case, Wisconsin has developed model procedures for police sketches and conducting lineups. The state Department of Justice now recommends that sketches be used "cautiously, if at all," and that police use sequential, rather than simultaneous, lineups and photo arrays. The procedures are aimed at avoiding faulty eyewitness testimony, the leading cause of wrongful convictions in the United States.

Fiedler said he was unaware of the problems with sketches and said he'd never heard of touch DNA until the Innocence Project filed its motion for a new trial in July. "That new evidence would probably change the result" of the trial, he said.

Shomberg was serving a 12-year prison term at Columbia Correctional Institution for second-degree sexual assault, false imprisonment and bail jumping. His sentence was increased because he was convicted as a habitual criminal, with previous convictions for theft, burglary, criminal damage to property, car theft, hit and run and illegal possession of a firearm.

Kaiser said the district attorney's office would decide next week whether to retry Shomberg or drop the charges. [They later dropped it]

Original report here



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