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Friday, October 24, 2014 |  Madison, WI: 49.0° F  Fog/Mist
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An open letter to the Dane County district attorney's office
Why be so defensive instead of admitting you're sometimes wrong?
on (2) Comments

Dear Brian Blanchard and Judy Schwaemle:
I'm grateful for our long and mostly positive association. Thus I'm troubled by our recent to-do over Forest Shomberg, the Madison man who was freed after serving half of a 12-year prison sentence (see "Justice for Forest Shomberg, 12/11/09, and Letters, 12/25/09). I'd like to outline my take on this and other cases. You're welcome to an equal amount of space to reply.

Brian, as Dane County's elected district attorney (and now an appellate court candidate), and Judy, as a deputy district attorney, you felt my column was grossly unfair, especially to prosecutor Bob Kaiser.

The column was mainly about the weaknesses of the case against Shomberg, whose 2002 conviction for attacking a woman was undone by the Wisconsin Innocence Project. But you took umbrage at only one part - about how the Innocence Project flagged multiple misstatements made by Kaiser at trial regarding Shomberg's alibi witnesses. I thought Kaiser's comments merited further review.

We've already duked it out over my assertion that Kaiser "rebuffed" my efforts to get his perspective, which you felt was inaccurate. I thought it an apt characterization, especially in an opinion column, given his rude and unprofessional failure to acknowledge or respond to my email and voice mail contacts. Let's agree to disagree.

More significant is your contention, advanced in emails from Judy to Isthmus editor Dean Robbins and Innocence Project attorney Byron Lichstein, that Kaiser made no misrepresentations. Having given your claims fair consideration, I respectfully - but firmly - disagree. (So does Lichstein, who politely declined your request that he "acknowledge the error" in his pleadings.)

At one point, Judy, you said that a given witness "did not support the defendant's testimony that everyone stayed up and watched movies until 3 a.m.," when the assault occurred, some distance away, and that only Shomberg "testified to these facts, which constituted his alibi." This is roughly what Kaiser claimed in his closing argument.

In fact, the witnesses substantially affirmed this version of events, in their statements to police and at trial. The witness you cited testified, "I know I didn't get to sleep until after 3 at least." When I pointed this out, you admitted having "overlooked" this specific statement proving what you said was wrong but argued that you were still right, for other reasons.

It's pretty clear from this exchange that your office is more intent on defending Kaiser than honestly assessing the accuracy of his remarks. I think that's unfortunate.

Brian, you've consistently shown thoughtfulness and integrity. Judy, your 2006 support of restitution for Anthony Hicks, who spent nearly five years in prison before DNA evidence freed him from a sentence you secured, was profoundly heroic.

"This is hard stuff for prosecutors," you said back then. "But we have to realize that even with the best of intentions, the system is not perfect."

Lately, though, I'm not seeing this sort of humility. In 2008, Audrey Edmunds was freed after serving 11 years in prison, because the expert testimony used to convict her was exposed as unreliable. But your office has, so far as I know, not conceded even the possibility of her innocence.

Last July, a judge threw out the charges against Ralph Armstrong for a 1980 Madison murder, because a prosecutor in your office failed to tell the defense about another man's confession and violated a court order by authorizing testing that caused the destruction of critical evidence. You promptly declared that everyone acted "in good faith" and that any errors "were the product of innocent mistake or oversight."

Um, shouldn't your focus be less on justifying what happened and more on making sure it doesn't happen again?

And then there's Forest Shomberg. Brian, you decided not to retry "because we believe we could not prove the case beyond a reasonable doubt with the evidence now available." But isn't this the same evidence Kaiser had when he fought - aggressively - to keep Shomberg behind bars?

I get that you value an employee like Kaiser, whose exploits in the chambers of justice are legendary. But shouldn't you be bothered by the overwhelming likelihood that he convicted an innocent man?

In the spring of 2000, I reported on a mentally ill man jailed for eight months because he couldn't pay child support. His prosecutor, Bob Kaiser, advanced the ridiculous and offensive argument that if the man couldn't work because he was mentally disabled, he had to plead that he was insane. And when the man's lawyer tried to get him released so he could obtain disability payments that would support his kids, Kaiser erupted.

"My job is to punish people for crimes," he said in court. "This is not about collecting money for children."

When my story came out, the DA at that time, Diane Nicks, publicly dissented from Kaiser's remarks and pulled the plug on his cruel prosecution, securing the man's release.

I wonder what would happen if Kaiser behaved this way today. Would you rein him in, as Nicks did, or would you have his back?

Bill Lueders (blueders@isthmus.com) is new editor of Isthmus.

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