Wisconsin State Journal

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

By DEE J. HALL | dhall@madison.com | 608-252-6132 | Posted: Friday, November 13, 2009 3:15 pm

Forest Shomberg
Forest Shomberg thanks Wis. Innocence Project attorney Byron Lichstein and law student Peter Middleton as he leaves jail.
Forest Shomberg, a Madison man who has served more than six years in prison for a sexual assault he said he didn't commit, was ordered released from prison 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 overturning his own judgment of conviction in the 2002 case.

"I think the judge followed the law and found significant new information that came up since the trial," said Byron Lichstein, an attorney for the Wisconsin Innocence Project, which represented Shomberg in the matter.

Shomberg's longtime girlfriend, April Anello, began to cry 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 of the March 9, 2002, attack on a UW-Madison freshman. The woman was grabbed from behind and forced into a dark alleyway 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 suspect, 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 attacker. 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.

Shomberg, who is serving a 12-year prison term, has denied having anything to do with the assault. Three acquaintances 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 the alibi.

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.

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