Chester Schimberg was convicted of criminal sexual conduct (rape). A woman was raped by a single attacker in her home, while her husband was at work. Schimberg was not identified by the victim, who said it was too dark to tell who the man was. She did say the man had a southern accent. Schimberg grew up in the north, and has no southern accent. The lawyer never brought out to the jury that she told police the man had a southern accent.
Schimberg was convicted because there had been a breakin at the house and some items stolen. His fingerprints were found in several places in the house, and on some stolen items found abandoned outside the house. The prosecutor and jury theorized that the rape and breakin occurred at the same time, and that since Schimberg was apparently guilty of a breakin at sometime, he must be guilty of the rape at the time in question.
The scientific evidence, however, says something different. The rapist left behind semen with blood group A. Schimberg, who has Type O, cannot leave blood group A. Yet, chemist Marie Bard-Curtis testified at trial that:
"Q [by prosecutor] All right. And what about Chester Schimberg?
A Chester Schimberg, being a Type O secreter, it is possible for him to be involved in this stain. However, he cannot be the sole donor of that seminal stain.
Q Would it be fair to say that your findings in relation to Chester Schimberg, while they don't single him out, they don't eliminate him as a possibility, either?
A That's correct."
However, at an evidentiary hearing held after trial, the chemist admitted that her trial testimony that Schimberg was not eliminated was based on there being more than one semen donor. That is, it was possible that Schimberg could be one of the rapists, if there had been 2 or more, but it was impossible for him to be the sole rapist. She gave the testimony that Schimberg was not eliminated because she was never told that there was only one rapist. Indeed, in response to questioning on this topic, the witness testified at the evidentiary hearing (where no jury was present):
"Q So if there was only one rapist, it could not be Schimberg; is that right?
A That's correct."
The jury was also not told that the victim's husband, like Schimberg himself, and like the victim, cannot secrete Type A semen.
A tracking dog followed the trail of the rapist, but instead of going to where Schimberg lived, the dog went to the home of Douglas Kelshaw. The chemist tested both Schimberg and Kelshaw against the semen stain, and reached the following conclusions in her written report:
Assuming one semen donor contributed the stain detected on the victim's pajama top, the suspect Douglas Kelshaw is included in the population of possible donors."
The prosecutor argued at the motion hearing that a person could fake a southern accent, so the failure of the attorney to bring out the fact of Schimberg's accent and heritage was harmless. But would a person be so careful about ingeniously devising a plan to use a southern accent, maintaining the accent throughout the attack and never slip up even once, and then carelessly leave his fingerprints in several places in the house and on abandoned stolen property outside the house? If a jury heard all the evidence, could a jury not conclude that the bungling burglar is not the same person as the clever rapist? Could they not conclude that the chemist's opinion that if there was only one rapist, it could not be Schimberg, was an important fact they would want to know before issuing a verdict?
Judge Michael Harrison of Lansing, Michigan, heard the testimony that there was only one rapist, and heard all the evidence at the evidentiary hearing. The defense was not seeking a complete dismissal, but only a new trial at which the jury could hear all the evidence. Judge Harrison, a politician and the son of former head of the Michigan Department of Corrections Gus Harrison, made the following comments when confronted with this evidence:
"Like it or not, Mr. Schimberg has stated to this Court that everybody in this courtroom knows of his innocence. Well, I hate to suggest to him that this is certainly beyond my ability to discern...And so as far as this, quote, unquote, knowledge of innocence, it belies me."
The motion for a new trial was denied.
By the way, Chester Schimberg received a sentence of life in prison for this rape.