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A Dane County reserve judge on Friday threw out the 30-year-old rape convictions of a former Wisconsin Rapids man, finding that hair evidence used to convict the man exceeded the limits of science at the time.

In a 10-page decision issued Friday, Reserve Judge Daniel Moeser ordered a new trial for Richard Beranek, 58, who was convicted in 1990 for the March 2, 1987, rape of a rural Stoughton woman. Moeser found that an FBI agent who testified as an expert witness at Beranek’s trial “couched his testimony” on hair evidence in a way that would lead the jury to conclude that Beranek’s hair was a statistically closer match to a hair from the crime scene than was possible.

“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 (a) conclusion that we now know exceeds the limits of science at the time,” Moeser wrote in his decision.

Additionally, he said there was new evidence that showed that the hair in question did not come from Beranek.

Moeser, who also heard the case in 1990, wrote Friday that he couldn’t “conclude that the new evidence would not materially impact the outcome of the new trial. Therefore, there is a reasonable probability of a different result.”

Beranek was convicted of multiple counts of first-degree sexual assault, along with burglary, and sentenced to 243 years in prison.

Moeser emphasized later that his decision doesn’t mean that Beranek is likely either innocent or guilty, only that he is deserving of a new trial.

Beranek is represented in the case by the New York-based Innocence Project and the Wisconsin Innocence Project.

Innocence Project lawyer Bryce Benjet said a member of the legal team spoke with Beranek Friday and said he was “very emotional” at the news of Moeser’s decision.

“I can’t even imagine what emotions he’s feeling,” Benjet said.

While Moeser didn’t directly find fault with the victim’s identification of her attacker and wasn’t persuaded by Beranek’s alibi evidence, Benjet said that the faulty hair evidence supporting those elements left Moeser with no other conclusion but to order a new trial. Benjet said he hopes prosecutors decide against re-trying the case.

Moeser ordered that Beranek remain in custody until a bail hearing can be scheduled in Dane County Circuit Court. The district court administrator and the judicial district’s chief judge will determine which judge would hear a re-trial of the case.

District Attorney Ismael Ozanne said his office is considering whether to re-try the case. He said the state Department of Justice would decide whether the decision is to be appealed.

Johnny Koremenos, DOJ spokesman, said the department was reviewing the decision. Assistant Attorney General Robert Kaiser is the prosecutor on the case, and originally tried the case as an assistant district attorney in Dane County.

In his decision, Moeser wrote that while the hair evidence exceeded the limits of science, he couldn’t conclude from the record that Agent Wayne Oakes intentionally lied under oath when he testified about the hair match.

In 2015, Ozanne received a letter from the FBI stating that according to an internal review of Oakes’ testimony, on seven occasions Oakes “provided a likelihood that the questioned hair originated from a particular source, or an opinion as to the likelihood or rareness of the positive association that could lead the jury to believe that a valid statistical weight can be assigned to a microscopic hair association.”

The FBI wrote in the letter that such testimony “exceeds the limits of science.”

Moeser said that the letter alone would probably make the decision for a new trial a difficult one. But in addition to that, he wrote, is evidence that the hair that was alleged at trial to be Beranek’s is now known not to have come from Beranek.

The hair evidence, he said, was “significant and important” to the prosecution’s case. While it wasn’t as important as eyewitness identification by the victim, “it still was powerful corroboration.”

At the trial, Moeser wrote, Oakes presented himself as an experienced witness and explained what he did well and in terms the jury would understand.

While he testified that he couldn’t call hair comparison a positive means of identification, he later said that in 8½ years and 3,000 cases there was only one occasion where he could not distinguish known hairs from two different people, and never failed to differentiate between two samples of Caucasian hair. He also said he had looked at “billions” of hairs.

“He clearly enhanced, perhaps exaggerated, his experience and knowledge,” Moeser wrote. “He was careful to now and then indicate that he could not say the hair and the defendant’s known (hair) were a match with absolute certainty but then would couch his testimony in terms that could easily be interpreted as being a match.”

Moeser wrote that a reasonable jury “could certainly conclude from Oakes’ testimony that the hair and the hair of the defendant were a match.”

When Moeser originally sentenced Beranek to 243 years in prison, he said he couldn’t “think of a reason not to impose the maximum penalty in this case.”

At the time, he said the jury “made the correct decision.”

In his decision Friday, Moeser wrote that while the criminal justice system isn’t perfect, it strives to be. Motions for a new trial need to be weighted against the goal of finality, he wrote.

“But if one respects the rule of law, as this court does,” Moeser wrote, “the goal of finality 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.”


Ed Treleven is the courts reporter for the Wisconsin State Journal.