Wisconsin exonerated Forest Shomberg, then abandoned him
Freed to fail
Judith Davidoff on Wednesday 11/23/2011
It's hard to get a conviction overturned when the original trial judge is presiding. It's even harder when the prosecution is opposed.
So attorney Byron Lichstein was not optimistic when he appeared before Dane County Judge Patrick Fiedler on Nov. 12, 2009, seeking the dismissal of Forest Shomberg's conviction for the sexual assault of a UW-Madison student in 2002.
"I was thinking our best shot was going to be in the Wisconsin Court of Appeals," says Lichstein of the Wisconsin Innocence Project at UW Law School. Plus, he adds, "I always try to manage expectations because I don't want a client to have false hope."
But at about 4 p.m. on a Friday afternoon, after a two-day hearing, Fiedler issued his ruling. Based in part on new DNA evidence, all charges against Shomberg were dropped and he was free to go.
"There was no transition," says Michael Lieberman, Shomberg's current attorney. "There was nobody there to help give him any structure."
And there's a sad twist. Had Shomberg's 2002 conviction stood, the state would have provided him upon release with, among other services, counseling and job assistance.
"Ironically, he would have been entitled to more benefits upon release if he had actually been a rapist and served out his entire sentence," Lieberman wrote in a sentencing memo to the court.
Keith Findley, founder and co-director of the Wisconsin Innocence Project, says this is a common plight facing all those exonerated by the state.
"If you're guilty of a crime, you get more support from the state when you're released than if you're innocent."
Lichstein does not fault the Department of Corrections for this lapse.
"They have no authority over people whose conviction is overturned," he says. "There is nothing crafted to deal with this kind of situation."
But the state fails to make reparations to exonerated people in other ways too. "Lawsuits are almost impossible to bring because most of the actors have various types of immunity from lawsuits," says Findley.
And the Wisconsin Claims Board — authorized to compensate individuals injured in a variety of ways by the state — is now "horribly out of date," says Findley.
"It's the least adequate compensation package of any in the nation."
Shomberg is still waiting for resolution on the wrongful imprisonment claim he submitted to the board. Even if he prevails, the most Shomberg could receive is $5,000 per year of incarceration, with total compensation capped at $25,000.
"The compensation amounts are so horribly outdated and grossly inadequate they're really a slap in the face of the people who have been wrongly convicted," says Findley.
With advances in DNA technology, and an increasing number of wrongful conviction rulings over the last 10 to 15 years, this is an area that needs addressing, says Lichstein.
Findley is working with state Rep. Mark Pocan (D-Madison) on draft legislation that would update the state's monetary compensation for victims of wrongful conviction and provide them with other types of support once released from prison.
The bill "taps into existing social services" and makes the system responsible for ensuring that exonerated people know about resources and how to access them, says Findley.
People released after a wrongful conviction react in a variety of ways, he says. "Some go out and rise above it and enjoy inspiring success. Others really struggle, but everyone who goes through this is damaged in one way or another. [Wrongful conviction] is a very damaging thing to do to a human being."
A victim of repeated child sexual assault, Shomberg struggled with panic attacks, post-traumatic stress disorder and attention hyperactivity disorder even before his six years in prison.
He remains sensitive to loud noises from the time spent at the Wisconsin Secure Facility Program, and his vision is permanently damaged from, as his attorney puts it, "staring at walls just six feet away for 23 hours a day."
After being released, Shomberg battled depression and had trouble finding work. He sought help for his drinking problem but, without anyone monitoring his progress, did not follow through.
Because Shomberg is now back in the system, he will have access to services. "Treatment is finally available to him," says Lieberman.
After finishing out his one-year incarceration sentence — he has about six months more to go — Shomberg will be on supervision for two years and assigned to a federal probation officer, says Lieberman. Shomberg will spend his first year outside prison in a halfway house, where he will have structure and receive alcohol treatment.
Says Lieberman: "He will transition back from being an inmate to being a free person again."