OSHKOSH — Joseph Frey’s conviction for a rape more than 20 years ago was overturned Wednesday by a Winnebago County Circuit Court judge based on DNA testing and other evidence that showed Frey, who was serving a 102-year sentence, was likely the wrong man.
In a subdued hearing, Judge Daniel Bissett agreed that Frey’s conviction must be vacated “in the interest of justice.”
However, the journey to freedom for Frey has not ended. He will remain in the Winnebago County Jail until prosecutors decide whether to retry him. Bissett ordered him held in lieu of $100,000 cash bail.
Frey, now 53, was charged with breaking into a UW-Oshkosh student’s apartment in 1991 and sexually assaulting her at knifepoint. He was convicted on Feb. 2, 1994, by a Winnebago County jury despite his claims of innocence, the victim’s dubious identification of him as the attacker, the lack of a DNA match and destruction by an Oshkosh Police detective of important evidence before the trial.
DNA found at the crime scene as a result of new testing requested by the Wisconsin Innocence Project matched a man who, after the 1991 attack, went on to sexually assault two sisters, ages 12 and 13, in Fond du Lac. He has since died.
Assistant District Attorney Adam Levin said the new evidence, including the DNA test and witness interviews, isn’t significantly different from the old evidence, saying it was similar to what was used to convict Frey in 1994. That old evidence included a jailhouse informant, the victim’s identification of Frey in a “live in-person lineup,” prior sexual assault charges and DNA results from the victim’s bedsheet that excluded Frey as the source.
“The jury knew that the DNA on the sheet did not match the defendant,” Levin said.
But Levin said the new testing, which shows that DNA from convicted sex offender James E. Crawford was commingled with the victim’s DNA on her bedsheet, is a “significant new fact that the jury did not know.”
UW-Madison law student Micheal Hahn with the Innocence Project told Bissett there is no “innocent explanation” for the discovery of Crawford’s DNA at the crime scene. He also pointed to a Winnebago County Sheriff’s investigation requested by Levin last month that revealed Crawford may have been trying to confess to the attack in this case prior to his death in 2008.
Whether Frey is retried for the 1991 rape will hinge on the results of DNA testing of condoms collected from Frey as part of a Brown County case, Levin said.
“The state will follow the evidence where it leads,” he said. And unless new evidence emerges implicating Frey, Levin said, “likely this case will be dismissed, and this defendant will go free.”
DNA key to review
Frey’s overturned conviction was the result of a federally funded effort by the Innocence Project to seek out state inmates whose claims of innocence could hinge on DNA testing. He was represented in court Wednesday by Hahn and Innocence Project attorney Tricia Bushnell.
Bushnell said Frey was not ready to make a public statement but wanted to express his sympathy that the woman was being “revictimized” by the proceedings and that the failure to prosecute the likely perpetrator may have led to the sexual assault of two young girls.
Frey’s chance at exoneration came after a Winnebago County court clerk discovered a scrap of bedsheet left over from the “improper” destruction of the physical evidence by a now-retired Oshkosh Police detective before Frey’s 1994 trial, according to the Innocence Project’s October motion seeking DNA testing.
After the attack, investigators began to hone in on Frey, who had been implicated in two previous sexual assaults in Brown County. But DNA test results from samples taken from the victim and her bed excluded Frey as the source.
After those results were received — and before trial — all of the physical evidence in the case reportedly was destroyed, according to trial testimony of then-Oshkosh Detective Phil Charley, who acknowledged disposing of the items but “could not recall anyone ordering him to destroy the evidence,” the Innocence Project said.
And there were other problems. The Innocence Project said the victim identified at least two other men before saying that Frey “looked similar” to her attacker.
In its brief, the Innocence Project said police used a series of now-questionable methods that likely tainted the witness’ memory of who raped her, including simultaneous lineups that can prompt a victim to choose the person who looks the most like — but who is not — the perpetrator. Repeated lineups involving the same suspect, as happened in this case, also can prompt a witness to feel that one person is more familiar than the other suspects, even if it’s the wrong person.
The state Department of Justice now recommends sequential lineups in which a witness is shown a single person or photograph at a time, allowing him or her to evaluate each person’s appearance separately.
And there were still more problems with the case.
“In addition to the improper destruction of evidence,” the motion for DNA testing said, “all of the police documents, including police reports, inventory reports, submission and transmittal forms, testing requests and results and chains of custody, were destroyed by the (Oshkosh Police Department).”
“As a result, it is unclear what evidence was originally collected, identified for testing, or remained after destruction.”
May solve assault case
In addition to possibly clearing Frey’s name, the latest DNA tests and follow-up investigation may end up solving the decades-old sexual assault, possibly implicating Crawford.
According to the sheriff’s investigation, Crawford, of Fond du Lac, was believed to have lived in Oshkosh at the time of the 1991 sexual assault of the UW-Oshkosh student. He also roughly matched the description, height and weight of the assailant.
Not long after that attack, Crawford repeatedly sexually assaulted two sisters in 1991 and 1992, according to a Fond du Lac County criminal complaint, crimes for which he received a 30-year sentence.
Investigators uncovered even more evidence possibly implicating Crawford: Before he died, Crawford tried to confess to what his mother believes may be the attack on the UW-Oshkosh student.
Winnebago County Sheriff’s Detective Dean Artus recounted his April 30 interview with Crawford’s mother, Connie Guell, in a report: “James would tell Connie that he had raped a girl and he wanted to confess to this. … He was trying to type a letter to a judge to explain this and try to confess; however, his computer at the nursing home did not have Internet or printing capability so he never sent this to the judge.
“She stated this really seemed to be on his conscience and he would continually state that he wanted to confess to raping a girl and would oftentimes begin to cry.”
Guell said Crawford died in 2008 after suffering from multiple sclerosis and heart problems, according to the report from Artus.