Madison man, who has served more than six years in prison, is ordered released
By DEE J. HALL | firstname.lastname@example.org | 608-252-6132 | Posted: Friday, November 13, 2009 3:15 pm
The case already has gone 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, especially in lineups where witnesses may choose the person who most closely matches their memory - whether the perpetrator is among the group or not.
This time around, Shomberg was armed with powerful new evidence not available in 2002: Testing of the victim's pantyhose revealed none of his DNA.
The findings were made possible with newly developed "touch DNA" technology that can recover a DNA profile even if a person merely touches something. Shomberg's trial attorney, Arnold Cohen, and his appellate attorney, Charles Giesen, both testified Friday that said they were unaware of touch DNA when they represented Shomberg.
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."
Lichstein countered that, "There is no reason to think the perpetrator left DNA, it fell off, and somehow other DNA didn't fall off."
Lichstein also presented an expert in eyewitness testimony, Otto MacLin, associate professor of psychology at the University of Northern Iowa. He said there are many factors that can lead witnesses to misidentify a suspect, including helping police develop a sketch.
MacLin said that process can "contaminate" a witness's recollection by causing them to recall the composite they helped to draw up rather than the face they actually saw. He added the research has shown that such drawings, when compared to known perpetrators, are "not very accurate."
MacLin also subjected the Shomberg lineup to a scientific test. He 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 result was that the students overwhelmingly chose Shomberg, meaning the so-called "fillers" in the lineup were not close enough matches to the suspect description to make it a fair lineup, Lichstein argued.
Wisconsin now has model procedures for police to use in developing sketches and conducting lineups aimed at avoiding faulty eyewitness testimony, which is the leading cause of wrongful convictions in the United States.