Time Served: 19 years
With help from the Wisconsin Innocence Project, Judge Daniel Bissett overturned Frey’s conviction on March 22, 2013, but Frey remained in jail while the State decided whether or not to retry him. Prosecutors decided not to retry Frey and asked the judge to dismiss his case; the charges were dismissed, and he was released on July 12, 2013. Frey would have been released on the other sexual assault convictions in 2005, meaning that he served eight years for a crime he didn’t commit.
In the early morning hours of February 9th, 1991, the victim (a UW-Oshkosh student) awoke to find a man standing in the bedroom of her apartment. He displayed a knife and vaginally and orally raped her. He then dressed and left.
When the victim called 911 after the attack, she identified her landlord as the assailant. The police collected several pieces of evidence, including pillowcases and semen-stained sheets from the bed on which the assault occurred. Ms. Lindow told police that her assailant had a mustache, a raspy voice, and was approximately 6’1”.
There were multiple identification procedures conducted in this case, none of which included the landlord. The first, a photo array, was conducted two days after the attack. The victim did not identify anyone; however, she did find someone in a subsequent live lineup who she thought resembled her assailant. Despite this tentative identification, police included Frey, and not the man who reminded her of her assailant, in the third procedure, another photo array. She found similarities between Frey and her assailant, but again, declined to make a positive identification. Then, two months after the attack, in a fourth identification procedure, she viewed Frey and four other men who she had not viewed in previous arrays or lineups. Although the victim stated that she was undecided between Frey and another person, she ultimately chose Frey, but also stated that she could “not positively identify” the person who attacked her.
Frey became a suspect because he was implicated in two similar sexual assaults in Green Bay. He pled guilty to these crimes but maintained his innocence in the Oshkosh crime. (He was ultimately convicted of these crimes prior to his trial for the UW-Oshkosh student rape, although one conviction was eventually reversed.)
Police collected evidence from the crime scene, but with the exception of the semen-stained bed sheets, it was all improperly destroyed in 1992, before the December 1993 trial. The evidence was labeled “hold for investigation or evidence,” and the detective who destroyed the evidence did not recall receiving an order to do so. Police reports, inventory reports, chain of custody reports, etc. were also destroyed, so there is no record of what evidence was originally collected. However, RFLP testing on the semen-stained bed sheets excluded Frey as the source of the semen in 1991, before his December 1993 trial. The victim’s boyfriend was also excluded as a contributor.
The state explained the absence of any biological evidence from Frey by arguing that the semen must have been left behind by another man, possibly the roommate’s boyfriend. The roommate claimed to have had sex with her boyfriend on the victim’s bed. The State also presented testimony from a jailhouse snitch who stated that Frey had admitted to raping two women in Green Bay and one in Oshkosh. Frey was convicted by a jury in Winnebago County on February 2, 1994.
Conviction: first degree sexual assault (four counts), burglary armed with a dangerous weapon (one count), false imprisonment (one count)
Sentence: 102 years
Incident Date: 02/09/91
Conviction Date: 02/02/94
Exoneration Date: 07/12/13
Served: 19 years
Race of Defendant: Caucasian
Race of Victim: Caucasian
Status: Exonerated by DNA
Contributing Causes of Conviction: Eyewitness Misidentification, Informants
Innocence Project Involved: No
Death Penalty Case: no
Accused Plead Guilty: No
Type of Crime: Sex Crimes
Compensation: State Statute
The Alternative Perpetrator Identified: Yes
Real Perpetrator Convicted of Subsequent Crime: Yes