A Junction City, Wisconsin, man has been free on bail since a Dane County judge overturned his conviction 11 months ago. Richard Beranek, now 59, was convicted in 1990 on charges of rape, battery and burglary, even though six witnesses testified that he was in North Dakota when the crime took place. He was sentenced to 243 years in prison and served 29 years.
Beranek was largely convicted on the basis of a microscopic hair comparison analysis performed by the FBI. The FBI has now acknowledged that such analyses are unscientific. Two other defendants in Wisconsin who were wrongfully convicted in part by the use of hair comparison testimony have already been exonerated, even before the FBI acknowledged such testimony was unscientific. One resulted in a settlement of $1.75 million after he filed a civil rights suit.
Journalists have identified at least 13 cases in Wisconsin where the FBI admitted it used flawed hair comparison testimony, but there may be many times that number where Wisconsin Crime Lab analysts trained by the FBI presented the flawed evidence.
Unlike some other states, the Wisconsin Department of Justice has refused to conduct an investigation into convictions that included hair comparison testimony, even after the FBI sent letters to the governors of all states imploring them to prod prosecutors to notify defendants of flawed microscopic hair analyses.
Now, another Dane County judge has approved a prosecution motion to dismiss all charges against Beranek. The prosecution stated that it still has a "strong belief" that Beranek is guilty, but said that the victim does not wish to testify in a new trial.
However, the dismissal of charges comes just days after DNA testing of crime scene evidence excluded Beranek. Not only was Beranek excluded from crime scene evidence, but an unidentified DNA profile was found on the underwear which the victim says was left at the scene by her assailant.
"I think that this DNA testing and the timing of the dismissal speaks volumes -- that Richard Beranek could not be the assailant here," said an attorney with the Innocence Project.
The DNA profile from the assailant's underwear has apparently been compared against a local DNA database, but without success. Beranek's attorneys from the Wisconsin Innocence Project said they do not know whether the prosecution is comparing the DNA to other suspects who had been considered during the original investigation.
The prosecution told reporters that the state has performed "exhaustive" testing of all the physical evidence but would not comment on whether the assailant's underwear DNA was being submitted for additional comparisons. That seems unlikely, since the prosecution is going out of its way to continue to proclaim the guilt of Beranek.
"Although we certainly welcome the decision to dismiss the case, we are dismayed that the district attorney appears unable or unwilling to admit a serious mistake was made here," said one of Beranek's attorneys. "When we send the wrong man to prison, the guilty party remains free to commit other crimes."
Unfortunately, the failure of prosecutors to admit they convicted the wrong man is a widespread problem in this country. Time and again many prosecutors fight against freeing the imprisoned innocent even when DNA results exonerate them. Some notorious prosecutors have been dubbed "innocence deniers" for their active efforts to hinder justice.
Two years after the crime, the victim did identify Beranek, but the defense has argued that the techniques used in the photo lineup were "suggestive and unreliable and have since been disavowed" in state guidelines. Six alibi witnesses placed Beranek 600 miles away at the time of the offense, but the flawed hair analysis testimony was presented by the prosecution at trial as strong, objective evidence of guilt.
Besides Beranek, at least 70 people have been exonerated after FBI hair analyses were shown to be unscientific, according to the National Association of Criminal Defense Lawyers, which has been participating in a nationwide review of thousands of such cases.