MADISON - A Dane County judge on Friday overturned the conviction of a man who served more than six years in prison for a sexual assault that new DNA evidence indicates he did not commit.
Judge Patrick Fiedler ordered the release of 45-year-old Forest S. Shomberg, citing new DNA evidence and fresh research on faulty eyewitness identification.
Shomberg's girlfriend, April Anello, cried 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 2002 attack. "This has been going on so long - 6½ years."
Shomberg had been convicted of second-degree sexual assault and sentenced to 12 years. He always maintained his innocence.
The victim was a University of Wisconsin-Madison freshman who was grabbed from behind about 3 a.m. and forced into a dark alleyway, where the attacker groped her through her pantyhose.
Security guard Alan Ferguson arrived after hearing the victim scream. He and the woman told police it was dark and they caught only a fleeting glance of the man's face. But Ferguson later testified he got a second look at the suspect, even though he never mentioned that in his report to police or in his detailed handwritten account compiled right after the incident.
Shomberg denied attacking the woman, and three acquaintances testified they were with Shomberg 30 blocks away at the time. But the judge discounted the alibi.
In an unsuccessful appeal, Shomberg argued that Fiedler should have let him present expert testimony explaining how eyewitness identification is sometimes unreliable.
The Wisconsin Innocence Project took up Shomberg's case, armed with powerful new evidence not available in 2002: DNA found on the victim's pantyhose did not match Shomberg.
The finding was made possible with new "touch DNA" technology that can recover a DNA profile even if a person merely touches something.
Male DNA was found in four spots on the pantyhose but none was Shomberg's, Innocence Project attorney Byron Lichstein said.
"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 said it's possible Shomberg left a DNA sample that was so fragile that it fell off. But Lichstein said it was unreasonable to think Shomberg's DNA fell off while the other samples remained.
Lichstein also presented an expert in eyewitness testimony. Otto MacLin, a psychology professor at the University of Northern Iowa, said many factors can lead witnesses to misidentify a suspect.
The process of helping police develop a sketch can "contaminate" witness' memories by causing them to recall the sketch rather than the face they actually saw, he said.
He also ran an experiment using the six faces in the Shomberg lineup. He took 54 students with no knowledge of the case and gave them the physical description provided by the two witnesses. Then he asked them to choose one of the six men based on that description.
They overwhelmingly chose Shomberg. That means the so-called "fillers" in the lineup didn't match the suspect description enough to make the lineup fair, MacLin said.
Faulty eyewitness testimony is the leading cause of wrongful convictions in the U.S.