Man's rape conviction overturned after DNA testing

OSHKOSH Joseph Freys 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 Freys 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 students 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 victims 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, isnt 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 victims identification of Frey in a live in-person lineup, prior sexual assault charges and DNA results from the victims 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 victims 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 Crawfords DNA at the crime scene. He also pointed to a Winnebago County Sheriffs 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.

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Man's rape conviction overturned after DNA testing