STATE. OF WISCONSIN CIRCUIT COURT DANE COUNTY FILED STATE or WISCONSIN, JUN T9 20? DANE COUNTY CIRCUIT COURT Plaintiff, vs; DECISION AND ORDER Case it 1989 CF 0946 RICHARD BERANEK, Defendant DECISION AND ORDER REGARDING 5 MOTION FOR NEW TRIAL BASED ON DNA AND OTHER NEWLY DISCOVERED EVIDENCE This court was the trial judge for the three day jury trial in this matter which took place in February of 1990. The Defendant? 5 initial request for DNA testing was made and granted shortly prior to this court?s retirement in June of 2011. Because of this court?s familiarity with the case this coutt was speci?cally appointed as a reserve judge at that time to continue on the case through the testing process and to hear and decide the Defendant?s motion for a new trial if filed. The parties cooperated with respect to the complicated testing procedures which took much longer than anyone anticipated. Eventually the testing was completed and the Defendant?s motion for a new trial was filed on June 2016. A Scheduling Order was agreed. upon by the parties in July of 2016. The court has re?read the transcript of the trial, reviewed the evidence submitted at trial and read the hundreds of pages-of written argument by the parties. The court has reviewed the testimony and evidence from the three day evidentiary hearing held in February of 201.7. The court has researched the law with respect the standards for a new trial has considered the oral arguments of counsel. HISTORY OF CASE The Defendant was charged with and convicted of nine felonies with increased penalties for habitual criminality. He was sentenced to a total of 243 years in the Wisconsin State Prison System. An accurate summary of the background of this case is contained in the PER CURIAM decision of the Court of Appeal (RELEASED May 20, 1993) affirming the conviction and sentence. That decision reads, in part, as follows: ?On March 1987, the victim was assaulted against her will by a man who fondled her breasts, and who engaged in four different types of sexually-based forcible bodily intrusion, involving three different bodily ori?ces. During the course of the assaults, he threatened the victim with a pair of pointed pliers, and after the assaults, he warned the victim not to tell anyone. The burglaries consisted of entering her home with intent to sexually assault her. Shortly after the assaults, the victim met with a sheriff?s department detective. During this meeting, a composite sketch'of the assailant was developed. Copies of the sketch were widely distributed, and ultimately contributed to the defendant?s arrest two years later. Several days after the assaults, the victim returned to her home to wash her bedding and clothes. She placed a load of wash into a washing machine, but the machine was overloaded, and the load did not wash. When unloading the machine, the victim noticed a pair of men's underwear. She turned the underwear over to-her counselor at a rape crisis center, and the counselor placed it in a 2 bag. The bag was stored in an unused office, with a notation not to touch the bag because it contained evidence. In June of 1987, the underwear was turned over the sheriff?s department, and was then placed in a locked evidence locker. ever the course of the next two years, the victim was shown several photo arrays of suspects. At one point, the victim recognized the defendant in a photo array, and identified him as the assailant. Thereafter, an in-person line-up was arranged, and the victim again identified the defendant. After the defendant was arrested, a sample of his hair and a sample of hair retrieved from the underwear were analyzed by the FBI crime lab in Washington D.C. At trial, defendant?s expert witness testified ?that the hair in the underwear could have some frO?m the defendant or the victim?s ere?husband. The State?s expert witness testi?ed that the hair from the underwear was ?microscopically the same as the known head hairs of the defendant.? the trial court, and again in this court, defendant argues that the photo array from which the victim identi?ed him was ?unnecessarily suggestive,? because he was the only person on the array Idepicted as wide-eyed with raised eyebrows.? The trial court found that the array was ?remarkably unsuggestive.? Having examined the array ourselves, we conclude that the trial court was correct. The array shows several men of similar age, height and weight, with similar coloring. At least one of the photos depicts. a man with raised eyebrows. Nothing in fact or law singles out the defendant?s photo from any other in the array.? Additional facts will be discussed within the context of this decision below. MOTION The defense motion essentially presents two issues: (1) the defense claims that new DNA evidence now shows that the hair in question at the trial is clearly not the hair of'the Defendant and (2) that the FBI expert witness at trial testi?ed, either falsely and intentionally or unintentionally, to facts that were beyond the scope of the hair science at the time in an attempt to connect the hair'to the Defendant. The-defense argues that either or both issues entitle the Defendant to a new trial. THE HAIR AND FBI TESTIMONY AT TRIAL At trial the state presented evidence, which was contested by the defense, that a hair found on a pair men?s underwear discovered days after the attack mixed in with Wet bedding materials removed from the washing machine was consistent with the hair of the Defendant. No one. knows with absolute certainty that the underwear was from the perpetrator of the crimes but it is the rnost, if not only, reasonable inference that canbe drawn from the evidence. There were other hairs, one from an animal, also found on the underwear and it has been established that those other hairs are known not to be from the Defendant. So the focus at trial and at the motion for new trial hearings was on the one hair consistent with that of the Defendant and the testimony surrounding that hair. How significant was the hair evidence at trial? Wayne Cakes, a supervisory special agent with the FBI, testified on behalf of the prosecution about the hair. Oakes was a qualified witness both by training and experience. He was an experienced witness having testi?ed in mud 130-140 times. A review of the transcript reveals that Oakes was not a novice as a witness. He was believable to a jury. He explained what he did very well and did so in terms a jury would understand. The defense contends that Oakes intentionally testified falsely to mislead the jury. The prosecution argues otherwise. Let?s look at what Oakes actually said. He said rarely, extremely rarely do we see known hairs from two different people from the same person that we can?t tell apart (sic). So, when I associate a known hair from a. standard in my opinion, it carries a high degree of probability it originated from that person, although I can?t say it?s a positive means of 2/6/90, p. 181). Later, Oakes said that in eight and one~half years and approximately 3,000 cases there was only one. occasion where he could not ?tell known hairs from two different people apart and in that case the people were Negroid 2/6/90, p. 181). He went on to say he had not been able to differentiate two Caucasian hairs.? 2/6/90, p. 182) Oakes testified that hair was microscopically the same as the hair from the Defendant and that it was consistent with originating from the Defendant (T 2/7/90, p. 60-61). He stated that the hair was indistinguishable from the known hair. 2/7/90, p. 63). Cakes claimed to have worked on ?billions? of hairs (T 2/7/90, p. 63). Oakes testified that his conclusions were veri?ed by another agent who had worked in excess of 10,000 cases and testi?ed 400-500 times. Cakes did acknowledge on cross-examination that hair comparisons do not constitute a basis from (for) absolute personal identification (Tr. 69). He later said (H)air examinations and comparisons in my opinion constitute a basis for strong association, but not a positive association.? (Tr. 2/7/90, p. 70). He further stated that he could not say with absolute certainty but that it was likely or highly likely that there was a match. Oakes comes across as an experienced hair examiner and an experienced witness. He clearly enhanced, perhaps exaggerated, his experienceand knowledge. He was careful to new and then indicate that he could not Say the hair and the Defendant?s known were a match with absolute certainty but then would couch his testimony in terms that could easily be interpreted as being a match. While there are some chains of custody issues, as there? usually are, a reasonable jury could certainly conclude from Oakes? testimony that the hair and the hair of the Defendant were a match. 5 The prosecution used the hair evidence in closing arguments. The prosecutor argued that the hair in question was "absolutely identical? to that of the Defendant which is an ?incredible phenomenon.? (Tr. 2/8/90, p. 65). The prosecutor later referred to the hair evidence as an incredible coincidence (Tr. 2/8/90, p. 71). The prosecutor later corrected himself and told the jury that he did not mean, if he said it, that the hairs absolutely matched (Tr. 2/8/90, p. 96). The hair evidence was an important part of the State?s case. There isn'o way to be sure as to how much. weight the? jury gave to the hair evidence. But based upon the totality of the evidence one cannot conclude that the hair evidence was insigni?cant. NEW EVIDENCE In its motion for a new trial the defense has presented evidence and argues that (1) it is now clear that the hair in question at trial did not originate from the Defendant and (2) that FBI Agent Oakes testimony was false, misleading and exceeded the limits of'science at the time. While chain of custody issues have been raised, and probably will be "raised again if there is a new trial, the defense, for the purposes of the motion for new trial, has met its burden in showing that the hair from the trial which was allegedly consistent with the Defendant?s hair is the same hair tested which we now know is not the Defendant?s hair. Further, the FBI, in a letter dated May 5, 2015, sent to Dane County District Attorney, ishmael Ozanne, states that Oakes gave testimony at trial which exceeded the limits of science when he attempted to assign a positive association the hair in question and the known hair of the Defendant. While this court cannot find from the record that Oakes intentionally lied under oath thereis little doubt he couched his testimony in a manner which could reasonably lead a jury to conclude that there was valid statistical weight which supported the possibility of a match of the hairs. Talking about billions of hairs, thousands of cases for him and his fellow agent and only once not being able to distinguish a match all could reasonably lead to conclusion that we now know exceeds the limits of science at the time. EYE WITNESS IDENTIFICATION AT TRIAL The defense spends a considerable amount of time in its brie?ng and arguments with respect to witness identi?cation issues. That information is not really relevant to the motion for a new trial now before the court. It was a contested issue at the original trial and will most likely be an issue at a new trial. But. since the subject has been raised let the court comment on the witness testimony at trial in this matter. A review of the transcript, which is consistent with this court?s memory, indicates that the victim in this case was an extraordinary witness and that her identi?cation of the Defendant in the law enforcement sketch, scores of photo arrays, an Err-person lineup and at trial was very believable. This is important only with respect to the motion for a new trial because the court needs to look at the new evidence in the context of the other evidence presented at trial. ALIBI DEFENSE AT TRIAL The defense frequently refers to its alibi defense in this case as ?strong? and ?powerful,? perhaps hoping that if repeated enough it wiil be so. 'HoweVer, a reading of the trial transcript, again consistent with this court?s memory, is that the alibi witnesses were not strong witnesses. Several family members with strong motives to lie and two non?family witnesses with somewhat "vague and inconsistent testimony, could have reasonably been interpreted by t?hejur-y to be weak, or even suspect, when they testified about where the Defendant was several years prior to their testimony. If the jury questioned the veracity of the alibi coupled with other evidence in the case such as the curious name change for a driver?s license for the Defendant the jury could have quite possibly rejected the alibi. Perhaps a questionable view of the alibi evidence tainted the credibility of other defense evidence. THE LAW Based upon a Collective reading of Wisconsin Statutes 974.06., 9-74.07 (19), and 805.15 (31, and the. cases cited by counsel with respect to those statutes, the. court concludes that the correct legal thought process for resolving the motion for new trial is as stated below. While the court understands the defense?s ?kitchen-sink? approach to litigating this matter, perhaps from fear to leave something out, a careful reading of the law combined with the facts of this case leads to the conclusion that legally this matter is not so complicated. The facts of this case do not'rise to the level necessary to reach the defense ?interests of justice? and/or ?inherent authority? claims as grounds for a new trial. Nor do the facts support- the defense ?due process? and ?innocent person? arguments. The motion for a new trial is not an opportunity to re~litigate the witness and alibi aspects of the defense by referring to police reports and materials not contained in the facts of the original trial. A new trial may very well include challenges to identi?cation, alibi, credibility and chain of custody issues but are not appropriate and timely with respect to a motion for a new trial except for the ?new evidence? issues raised. A new trial will most likely include evidence not presented at the first trial, different arguments, different facts and perhaps different evidentiary rulings (the court notes that allowing Oakes to "bolster his testimony by reference to a colleague may not be appropriate but the record does not provide insight into what was argued on that. issue at the original trial). It is the defense burden to prove by clear and convincing evidence on a motion based on a claim of newly discovered evidence that (1) the new I evidence was discovered after the conviction, (2) the Defendant was not negligent in seeking the new evidence, (3) the new evidence is material to an issue in the case and (4) the new evidence is not merely cumulative. The defense has met its burden with respect to all four requirements. The court must then determine whether a reasonable prObability exists that a different result would be reached at a new trial by looking at the evidence presented at the original trial and the new evidence. If we just had the FBI letter commenting on the testimony of Cakes at trial this would be a very dif?cult decision. However, we also have-the evidence that the hair which was allegedly that of the Defendant?s at trial is now known not to be that of ?the Defendant. It is clear from the transcript that the hair evidence at trial was significant and important to the State's case. It was not as important as the witness identification but it still was powerful corroboration. This court cannot conclude that the new evidence would not materially impact the outcome at a new trial. Therefore, there is a reasonable probability of a different result. The criminal justice system is not perfect but strives to be perfect. The law provides for a series of checks and balances to assist with that effort. A motion for a new trial based upon newly discovered evidence is one of those protections and needs to be weighed against another important goat offinali-ty. Re-tria?is are difficult bec-aose?the passage of time can adversely impact evidence and memories for both sides. But if one respects the rule of law, as this court does, the goal of ?nality must give way to the goal of making as sure as reasonably possible that a conviction and its consequences are correct and appropriate under the facts of this case. WHAT THE DECISION DOES NOT MEAN In an effort to clarify this decision the court makes the following comments: 0 The court is not saying the jury made a mistake. The verdict in this. case was consistent with the evidence presented at trial and the law as explained to the jury. The court is not saying the Defendant is innocent and is not saying the Defendant is guilty. in The court is not saying that it is likely at a new trial that the Defendant will be found not guilty nor is the court saying that at a new trial it is likely that the Defendant will be found guilty. 0 This decision does not in any way address the appropriateness of the sentence previously entered which has been af?rmed or: appeal. a This decision does not indiCate what evidence will be presented at a new trial nor does this decision intend to comment on what weight the trier of fact should give the evidence at a new trial. ORDER Based upon the above the court enters the following order: 1-. The-convictions in this matter are vacated. 2. The Defendant?s bail remains revoked until such time as the Defendant is returned to the custody of the Dane County Sheriff and a Bail Hearing can be scheduled. 3. The State should prepare whatever documents are necessary to have the Defendant returned to Dane County as soon as reasonably possible. 4. The 52? District Chief Judge and the District Court Administrator should determine who should be appointed as the trial court in this matter under the Dane County Court Rules. This court will remain assigned until a new judge is designated. 5. A Scheduling Conference should be set as soon as reasonably possible following the assignment of the trial court. @?jgm dated: 7 Daniel R. Moeser, Reserve Judge Dane County Circuit Court 10