Note: This article originally appeared in Isthmus on October 7, 2005.
The notion of a probably guilty criminal suspect getting off on a technicality is practically a cliché. But a case now before the Wisconsin Supreme Court raises a different prospect -- that of a possibly innocent person being kept behind bars on one.
Last Friday, the court heard oral arguments in State of Wisconsin v. Forest Shomberg. Shomberg, 41, is serving a 12-year prison term for a sexual assault in Madison, a crime for which he has always professed innocence. At the heart of his appeal is the argument that the trial judge erred in disallowing testimony from an expert witness knowledgeable in the area of eyewitness identifications.
The assault occurred in the early morning hours of March 9, 2002, near the Francis Street ramp. The victim, a UW-Madison sophomore, was able to pry her attacker's hand from her mouth and scream; the man fled. She described him to police as being between 20 and 30 years old with blue eyes.
Shomberg, a heroin addict with a long trail of mostly property crimes, was identified as a suspect based on his resemblance to a police sketch, although his eyes are brown and he was 38 at the time of the assault. And several of his friends said he was with them, 30 blocks away, at the time. But the victim and another witness picked Shomberg from among a lineup of six persons, presented all at once.
At trial, defense lawyer Arnold Cohen of the state Public Defender's Office had wanted to call a former Chicago police detective to testify about the fallibility of such identifications. But Dane County Circuit Court Judge Patrick Fiedler would not allow it.
Defense attorney Charles Giesen, who took the case on appeal, says this was a critical mistake. The expert, he told the court, would have testified that simultaneous lineups are problematic, because they invite witnesses to make relative judgments. And, in Shomberg's case, the victim agreed at trial with statements that she picked Shomberg because he was "the best of the six," even though "he very well could have not been the guy."
The unreliability of simultaneous lineups has been recognized by the state Attorney General's Office and the Avery Task Force established to probe wrongful convictions. Both have recommended that lineup subjects be presented one at a time, not all at once. This is even in a bill based on the task force's work that unanimously passed the state Assembly last week.
Giesen believes the relevance of the expert witness' excluded testimony is confirmed by Judge Fiedler's own remarks: "The record, which is what I must rely on, has not established to me that a sequential lineup is better than a lineup all at once." Fiedler also said he was unfamiliar with the concept of relative judgment in identifications.
During oral arguments, Assistant Attorney General Christopher Wren agreed that the Chicago detective's testimony should have been allowed, had its relevance been established. But his core argument was that this did not amount to judicial error, but ineffective assistance of counsel, because Cohen failed to adequately explain why the expert's testimony was relevant.
"I kept waiting for him to make the statement that would clear up the confusion," said Wren, describing his thoughts as he read through the trial transcript. He added that Cohen apparently did not know enough about the issue for this task. "Had the expert been there, I have no doubt Judge Fiedler's [questions] would have been answered by the expert."
Wren's argument, not advanced in any earlier pleadings, came as a surprise to Giesen. He calls it "a red herring" meant to divert the court's attention from the main issues. Cohen agrees: "I assume he was saying that because he didn't have anything else to say."
Giesen told the court there is nothing in the record to indicate that Fiedler rejected the expert based on the attorney's lack of clarity. But the argument has now been made that the appeal should be rejected because it was predicated on the wrong grounds.
For Shomberg, the irony must be especially painful. He blames Cohen for multiple errors, including failing to subpoena a witness who could have testified that Shomberg acquired a sweater similar to that worn by the assailant -- the only other evidence against him -- after the assault. Cohen defends how he handled the case, and Shomberg too: "I have absolutely no doubt that he is not guilty of this crime."
The court's decision could come anytime before the end of the term in June.
Recently, one of Shomberg's defenders wrote a letter to Dane County District Attorney Brian Blanchard noting that a Madison man was arrested in August for a sexual assault nearly identical to the one for which Shomberg is now in prison. Mug shot photos show that this man bears a striking resemblance to Shomberg.
Blanchard wrote a reply stating that a review of this material did nothing to "undermine confidence in the guilt of Mr. Shomberg." Blanchard tells Isthmus that this man is represented by counsel and as such was not even questioned about his possible involvement in this earlier assault.