It's hard to simply characterize what happened to Forest Shomberg. Obviously, a lot of things went terribly wrong for the Madison native to spend six years in prison for a crime he didn't commit. But, in the end, a few things went remarkably right.
Shomberg, 45, was freed last month after serving half of a 12-year sentence over a March 2002 incident in which a UW-Madison sophomore was attacked and indecently groped in the wee morning hours in a downtown alleyway. Dane County Judge Patrick Fiedler, who'd found Shomberg guilty in a bench trial later that year, dismissed all charges against him and ordered his immediate release; the state isn't going to retry, since the case against Shomberg is so weak.
Fiedler's dramatic reversal was spurred by a Wisconsin Innocence Project motion. It raised several arguments: that new testing excluded Shomberg as the source of DNA on the victim's pantyhose; that the sketch and lineup that led to Shomberg's being fingered were demonstrably unreliable; and that Shomberg's trial attorney was ineffective, in part for not flagging the prosecutor's misstatements.
Four years ago ("Supreme Shift," 12/8/05), the state Supreme Court heard an appeal arguing that Fiedler was wrong to bar an expert witness on the reliability of eyewitness identifications. The state agreed that the testimony should have been allowed, had its relevance been established, but blamed Shomberg's defense attorney for this omission, an issue beyond the scope of his appeal ("A Case of Mistaken Argumentation?" 10/7/05). The Supremes rejected the appeal, 5-2.
You've heard of guilty people getting off on a technicality? Here an innocent person was kept in prison over one.
But it was more insidious than that. Shomberg's appeal was heard just as the court was under intense fire for a series of rulings that affirmed the rights of criminal defendants. During oral arguments, the justices' lack of concern about Shomberg's probable innocence was glaringly apparent.
The Supremes, sadly, are not alone: Blindness to justice by those charged with upholding it is a common theme in Forest Shomberg's ordeal.
Forest "Woody" Shomberg is, by all accounts, no angel. In 2002 he was a heroin addict with multiple convictions for traffic offenses and theft, including writing bad checks, for which he'd served a year in prison.
But he had no prior record of sexual assault, and he never before insisted on his innocence when charged with a crime. Moreover, the case against him for groping the student should have raised more red flags than a blowout sale at a used car lot.
Shomberg, who in important respects did not match the description given by the student victim or a security guard who came to her aid, was identified as a suspect based on his resemblance to a police sketch. The victim picked him out of a lineup as "the best of the six," even though, as she said at his trial, "he very well could have not been the guy."
The security guard, meanwhile, initially said he saw the assailant only briefly from 25 feet away. But at trial, he testified that the assailant slipped, giving him a much closer look in better light that made him 100% sure it was Shomberg, who didn't match any of his various and conflicting initial descriptions.
Add in that Shomberg passed a lie detector test and had three witnesses attest to his being in an apartment 30 blocks away at the time of the crime, and this case serves as a stunning rebuke to anyone foolish enough to believe the justice system is fundamentally concerned about justice.
Consider the role of prosecutor Robert Kaiser, who put Shomberg behind bars and argued unsuccessfully that he should stay there despite the new evidence. Part of the Innocence Project's case dealt with Kaiser's multiple misstatements in his closing argument.
Specifically, Kaiser told the court that one alibi witness stated for the first time at trial that Shomberg and others watched movies on the night of the assault. But this was something the witness had mentioned twice in his statement to police.
And Kaiser, who elsewhere has shown an encyclopedic knowledge of case facts, also claimed that a second alibi witness had said nothing until trial about her being up with Shomberg until 3 a.m., when the assault occurred. But again, this was fully consistent with what she'd told police.
In a brief submitted in September, the Innocence Project's attorneys note that Kaiser, in his own filings, "makes no attempt to defend the accuracy of the statements made during closing," instead contending that they were not important to the result. (Judge Fiedler agreed, rejecting this part of the motion, even though he had cited the alibi witnesses' lack of consistency in rendering his verdict.)
Kaiser similarly rebuffed Isthmus' inquiries regarding these misstatements. A prosecutor who said untrue things in open court to help put an innocent man in prison now feels no need to explain his actions to the public that pays his salary.
But it's the public's right and duty to hold him accountable.
Asked if the people who secured his conviction may have acted in good faith, reaching the wrong result despite good intentions, Forest Shomberg shakes his head firmly and exclaims, "No, no, no!"
He says Madison police lied in their reports and in their testimony against him. Certainly, they focused on him with laser intensity, overlooking or massaging evidence that cast doubt on his guilt. (One detective even claimed Shomberg's eyes appeared blue, which fit the victim's description, when they are clearly hazel-brown.)
Shomberg is also bitter about the drug addict who implicated him, the security guard who ID'd him, and the trial and appellate court attorneys who let him down.
But then there were the things that went right. The victim, for instance, never changed her story or claimed certainty in her identification. His girlfriend, April Anello, has stood by him to this day. A former neighbor, Cynthia Temple, championed his cause. The Innocence Project agreed to take his case and turned up new evidence.
And then there's Judge Fiedler. "I despised the man for years," admits Shomberg, recalling his time in a 9-by-9-foot cell, wondering: "How can anybody convict on this evidence?"
But it was Fiedler who had the uncommon courage to reverse himself, admitting that the new evidence would have produced a different result. Reflects Shomberg, "I have a lot more respect for him now."
Byron Lichstein, Shomberg's main Innocence Project attorney, notes that if Fiedler had not acted as he did, "it would have been a very difficult appeal," in part because Fiedler is so well-respected. "His opinion about how much this new evidence mattered carried a whole lot of weight."
Shomberg, who's not sure what he'll do now (he needs a job and would like to go back to school), calls Fiedler a "hero." So should we all.
Bill Lueders (blueders@isthmus.com) is news editor of Isthmus.
