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Richard Beranek

Other DNA Exonerations with Mistaken Witness Identification
On March 2, 1987, a 28-year-old woman returned to her home in Dane County, Wisconsin and was attacked by a man who was waiting in her bedroom closet. The man threatened her with pliers, and then slapped and beat her while raping her anally, vaginally, and orally on her bed.

The woman, identified as K.D., was so traumatized she did not initially tell police the extent of the attack. As a result, no rape kit was taken.

The woman eventually told the police that a man had been stalking her for several months and that she had received numerous obscene phone calls from a male propositioning her for sex. On one occasion, a man had passed a note to her daughter in a grocery store parking lot saying he wanted to have sex with her mother. She had gotten two calls at 1 p.m. and 3 p.m. on the day of the attack. After the second call, she dropped her children off at her sister-in-law’s home. She told police that she returned home and was changing clothes to get ready to go out on a date when the man emerged from the closet.

The day after the attack, K.D. described her assailant as a clean-shaven white man wearing dark pants and a light blue shirt. She said he was about 5 feet 8 inches to 5 feet 10 inches tall. Ten days later, she met with a police sketch artist, who created a composite that she said was 90 percent accurate. The image showed a clean-shaven man with a cleft chin and shoulder-length hair. In the lower corner, the man was described as having blue eyes and being in his mid-30s.

Soon after the assault, K.D. stopped living in her home. She told police she never slept in the bed again. A few weeks after she left, she returned to begin preparing to move to a new apartment. She took all the bedding, including the mattress pad, and stuffed it in her washing machine. When the machine stopped because it was overloaded, she pulled out the wet and unwashed bedding to discover a pair of men’s underwear. K.D. took the underwear to her rape counselor who turned it over to police.

Nearly a year after the attack, K.D. moved back into the home. She said that she continued to get obscene telephone calls. She said she received one call in the middle of the night in February 1989. A man claiming to be a Dane County sheriff’s deputy said a suspect had been arrested and attempted to set up a meeting at her home. She refused and the sheriff’s department determined the call was a hoax.

Investigators tried unsuccessfully to trace the calls. At one point, she said the caller said, “I know the cops are there, but that won’t stop me.” The following day, she spotted a red car following her. It took off only when she pulled into a parking lot next to a state police car. She told police the car had a CB radio antenna and no rear license plate.

From the time of the attack until April 1989, police visited K.D. 14 times to show her photographic lineups, but she did not identify her attacker.

In March 1989, 30-year-old Richard Beranek was sentenced to 10 years in prison after pleading no contest to sexually assaulting a 16-year-old girl near his home in Bloomer, Wisconsin—more than 200 miles from K.D.’s home. He had been in held in the Chippewa County Jail since a few days after that attack on July 26, 1988.

Although he was in jail and therefore could not have made the threatening and obscene calls that K.D. reported in 1989, Beranek became a suspect because Chippewa County sheriff’s officers believed he resembled the composite sketch. An eight-photo lineup was sent to Dane County sheriff’s investigators, who showed it to K.D. She identified Beranek as her attacker, saying she was “almost positive,” even though Beranek had dark hair, dark eyes, and a thick mustache at the time of the crime.

On June 14, 1989, Beranek was transported to Dane County and placed in a live lineup. K.D. again identified him. In September 1989, Beranek was charged with five counts of sexual assault, two counts of burglary, and one count each of endangerment and victim intimidation.

In February 1990, Beranek went to trial in Dane County Circuit Court. K.D. identified him as her attacker. The only physical evidence linking Beranek to the crime was a hair that was found on the underwear that K.D. had pulled from her washing machine.

FBI hair analyst Wayne Oakes testified that it was a head hair, and that it was “microscopically the same” as a head hair from Beranek. Oakes testified that he had performed 3,000 hair examinations involving “billions” of hairs during his more than eight years as an FBI hair analyst.

He said that he was unable to make an identification in only one case, and that involved African American hair—an event he said was “extremely rare.” He added, “I have never not been able to differentiate between two Caucasian head hairs.” Oakes said that after he completed his comparison, his supervisor, FBI Agent Michael Malone, also examined the two hairs. “He concurred with me that the two hairs match,” Oakes said.

At one point he conceded that hair comparison could not produce a “positive” identification. But when asked by the prosecutor if he concluded the hairs were a match, Oakes said, “I did.”

Several family members testified that Beranek was visiting his sister and her husband in North Dakota—more than 600 miles from K.D.’s home—at the time of the attack. The said that he did not return to Wisconsin until March 6, 1987, four days after the attack. Witnesses said Beranek and his brother-in-law painted two rooms of their home during the visit. The defense also presented records showing that Beranek’s sister put his name down on a food stamps application as living with her during that time. In addition, phone records were presented showing calls Beranek’s mother made to North Dakota to support her testimony that she bought him a bus ticket and then called to confirm he had arrived.

The defense also presented testimony from Art Varriale, a hair analyst from the Wisconsin State Crime Lab. Varriale testified that “given the state of the art of hair comparisons, it’s not possible at this time to identify a questioned hair back to a given individual.” However, he conceded that the hairs were similar and that the hair from the underwear was “highly consistent” with Beranek’s hair.

During closing argument, the prosecutor told the jury that the hair from the underwear and from Beranek’s head were “absolutely identical,” which was an “incredible phenomenon.” Later in his argument, the prosecutor said that if he had told the jury the hairs absolutely matched, he didn’t mean it.

On February 8, 1990, the jury convicted Beranek of all nine counts. He was sentenced to 243 years in prison. The Wisconsin Court of Appeals upheld the convictions.

In November 2011, the Innocence Project in New York as well as the Wisconsin Innocence Project filed a motion seeking DNA testing of the victim’s blouse and underwear, the men’s underwear she pulled from the washing machine, and the hair found in that underwear. Beranek was excluded as the source of the hair and his DNA was not found on any of the clothing.

In February 2015, the FBI informed Dane County authorities that as part of a joint review conducted by the Innocence Project and the National Association of Criminal Defense Lawyers, the FBI had determined that Oakes had given testimony that was unreliable and erroneous.

In addition, Oakes testified to “a statistical weight or probability” that the hair came from Beranek that could have led the jury “to believe that valid statistical weight can be assigned to a microscopic hair association,” the FBI said. “This type of testimony exceeds the limits of science.”

In June 2016, Beranek filed a motion seeking a new trial. Daniel Moeser, who was the judge at Beranek’s trial and had retired in 2011, was appointed to oversee a three-day hearing in February 2017. On June 9, 2017, Judge Moeser vacated Beranek’s convictions and ordered a new trial.

“The hair evidence was an important part of the state’s case,” Moeser ruled. “There is no 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 insignificant.”

Beranek was released from prison pending a retrial. In May 2018, the Dane County State’s Attorney filed a motion to dismiss the charges. The motion noted that “many mixtures of DNA” were found during the testing process. Mixtures of DNA from at least four males were found on K.D.’s shirt. Those mixtures could not be compared to any DNA profiles “due to the complexity of the mixtures.” A partial DNA profile was detected in the underwear removed from the washing machine. Beranek was excluded from that profile. “The crime lab analyst believes that the numerous low-level profiles and mixtures are most likely a result of degradation of 30-year-old evidence, along with contamination,” the motion said.

The motion explained that in preparation for a retrial, the prosecution consulted with John Wixted, a psychology professor at the University of California, San Diego in La Jolla, California. Wixted said that K.D.’s identification was made with “high confidence,” and therefore the two-year time gap between the crime and K.D.’s identification was “not a critical variable.” Nevertheless, the motion said, K.D. did not want to go through another trial, even though she still believed that Beranek is her attacker.

On May 17, 2018, Judge Richard McNamara granted the motion to dismiss the charges. Beranek remains a registered sex offender due to his prior conviction.

– Maurice Possley

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Posting Date: 5/23/2018
Most Serious Crime:Sexual Assault
Additional Convictions:Other Violent Felony, Burglary/Unlawful Entry
Reported Crime Date:1987
Sentence:243 years
Age at the date of reported crime:28
Contributing Factors:Mistaken Witness ID, False or Misleading Forensic Evidence, Official Misconduct
Did DNA evidence contribute to the exoneration?:Yes