Claims Board wary of setting precedent in Shomberg case (UPDATE)

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Members of the Wisconsin Claims Board expressed concern Wednesday that paying the estate of a deceased Madison man who was incarcerated for a crime for which he was acquitted may set precedent for other families to make similar claims.

Board member Gregory Murray said a case involving a $102,500 claim made by Forest Shomberg’s estate is “very uncharted territory for us,” as the board has never before paid an estate.

“If another parent of a child who is in prison comes before us and says ‘Our child is innocent and they passed away’ … how do we distinguish that from this?” Murray said.

Shomberg was imprisoned from 2003 to 2009 on a conviction for attempted sexual assault, but DNA evidence later ruled him out as the culprit. He was found dead in a car in August, purportedly of a suicide.

His estate is asking for $25,000 for the six years he was imprisoned and $77,500 for legal fees connected to his appeals.

Shomberg went before the Claims Board in 2012 only to be told that he had not met a standard prohibiting him from being compensated unless he furnished “clear and convincing evidence” of his innocence. He appealed the decision and Eau Claire County Circuit Judge Michael Schumacher eventually ordered the board to award him an equitable amount.

The case came before the Claims Board again Wednesday. Following the hearing, the board went into closed session to discuss Shomberg’s case, as well as others, and is expected to issue a written decision in the next few weeks.

Nobody from the Dane County District Attorney’s Office – which prosecuted Shomberg – showed up to argue against paying his estate.

Nathan Otis, an attorney with Nicholson & Gansner SC in Madison who is representing the estate, said during the hearing that while the case is “quite unusual,” he does not think Shomberg’s case will set a precedent and cause the problems Murray said may happen.

“I am mindful of that, but I do think this is a very different issue,” Otis said.

Likening the case to a race where Shomberg “ran the race and crossed the finish line,” Otis noted that Shomberg already was told he should receive the compensation while he was alive. Other cases may come up involving family trying to collect claims after a person is acquitted after dying, but this case is different, he said.

Otis also told the board that Shomberg’s mother, Annette Bruner, fronted her son the $77,500 to pay for an attorney, in anticipation that he would pay it back once he was released from prison and started working. He said Bruner and her now-deceased husband took out a line of credit on a piece of land they owned, and they recently lost that land because the line was not paid back.

During the hearing, board member Pat Strachota, R-West Bend, said the board should be careful in making its decision, since the Claims Board process is “under review” right now. She specifically mentioned laws in other states that restrict a claimant’s ability to collect money if he or she commits a crime after they are acquitted for another, as well as situations where a claimant took his or her own life.

Shomberg, before he died, was arrested for misdemeanor theft, though prosecutors dropped the charge in 2009.

Otis, in response, said that he doesn’t think “those specific prohibitions” are at play in Shomberg’s case, again pointing out that, before Shomberg died, Schumacher said he was to be awarded the money.

Last session, two Wisconsin bills were introduced that would have overhauled the way the Claims Board works.

One bill, sponsored by Strachota, would have prevented judges from being able to overturn the Claims Board’s decisions, and would have increased the maximum amount of compensation a person can receive for a wrongful incarceration. State law currently allows for a maximum of $5,000 for each year a wrongfully convicted person spends behind bars, with a cap of $25,000. The bill sought to increase those numbers to $15,000 a year, for a maximum of $200,000.

Another bill would have increased the compensation amount to $50,000 a year and removed the cap on total awards. It also would have taken away the Claims Board’s responsibilities regarding compensation to the wrongfully incarcerated and instead left those decisions to administrative law judges.

Both bills died in committee. Follow @eheisigWLJ