RACINE — Lawyers on Friday said the state’s top prosecutors plan to appeal a Racine County judge’s ruling that overturned a man’s conviction in a 1995 attempted rape, which ultimately led to his being freed after 20 years behind bars.
Daniel G. Scheidell, 66, of Racine, has been free for about a month after Racine County Circuit Court Judge John Jude overturned his two-decades-old conviction in June and ordered a new trial.
The state Attorney General’s Office this month filed a notice that it intends to appeal, but the formal appeal hasn’t yet been filed, one of Scheidell’s defense attorneys, Steven Wright, said after a hearing on Friday.
“The Court of Appeals now will decide whether (Jude) erred in granting a new trial,” said Wright, supervising attorney with the Wisconsin Innocence Project, which is working to clear Scheidell.
“We respectfully disagree with the circuit court’s decision granting Mr. Scheidell’s motion for a new trial. We’re exercising the state’s right to have the Wisconsin Court of Appeals review the correctness of that lower court’s decision,” Wisconsin Department of Justice spokeswoman Anne E. Schwartz stated in an email Friday afternoon.
‘Not giving up’
State prosecutors have a maximum of 80 business days in which to file the appeal, Wright said, though “inevitably somebody needs an extension.” Either side then could appeal to the Wisconsin Supreme Court.
“I’m certainly not giving up,” Scheidell said after the hearing.
State court records show that judges in the Court of Appeals’ second district — which includes Racine County — take an average of 341 to 357 days to issue an opinion after a notice of appeal is filed.
It was the Court of Appeals that overturned Scheidell’s conviction in 1999.
“That kind of gives me hope,” Scheidell said.
His conviction then was upheld by the state Supreme Court, keeping him imprisoned.
Scheidell, who is gay, was serving a 25-year prison sentence in the May 20, 1995, attack on a former female co-worker. The woman identified him, although her assailant wore a mask and never spoke during the attempted rape. A jury convicted Scheidell, but for two decades, he and his sister have maintained his innocence.
If the Court of Appeals agrees with Jude, “he goes to trial,” Assistant District Attorney Randy Schneider said during Friday’s hearing. But if the appellate judges disagree — reversing Jude’s decision — “he goes back to prison.”
Scheidell has been on house arrest since his July 17 release from the Racine County Jail. On Friday, Jude said Scheidell may leave his brother’s house between 8 a.m. and 7 p.m. for certain activities. Jude ordered Scheidell to maintain a log of his trips outside the house.
Schneider disagreed with the curfew, saying “I think house arrest is an appropriate bond here.”
The other man
Scheidell’s defense attorneys have worked to show that another man — then-Racine resident Joseph M. Stephen, now 45 — tried to rape the Racine woman whom Scheidell was convicted of attacking. They have argued that Stephen was a serial rapist who might have attacked this woman at knifepoint, as well as a second woman about five weeks later.
Jude ruled in June that Scheidell was entitled to a new trial based largely on newly-discovered DNA evidence that Stephen — who currently is in prison for an unrelated December 1998 Racine sexual assault — committed the “eerily similar” crime on June 27, 1995, in Racine.
It wasn’t until members of the Wisconsin Innocence Project began investigating Scheidell’s case that the rape kit collected in that second attack was submitted to the State Crime Lab for DNA testing, court records show. A DNA match came back to Stephen on July 23, 2013, according to his criminal complaint, and Racine County prosecutors then charged Stephen last summer in that June 1995 attempted rape.
Jude had to dismiss Stephen’s case in September because the statute of limitations had expired. Stephen can never be prosecuted for that alleged attack.