Inmate seeks new trial, claims perjury in 1989 homicide case

An Oshkosh man convicted of a 1989 murder is appealing his conviction on the claim that disgraced former Winnebago County District Attorney Joseph Paulus knowingly used false testimony to gain the conviction.

Attorney Byron Lichstein with the Wisconsin Innocence Project at the University of Wisconsin Law School, has filed a motion for post-conviction relief in Winnebago County Circuit Court on behalf of Mark Price, 55, who was convicted for the 1989 shooting of Michael Fitzgibbon, whose body was shoved under the ice on Lake Butte des Morts.

In a motion filed in Winnebago County Circuit Court, Lichstein said Paulus knowingly elicited perjured testimony from three key witnesses in order to bolster the state's case: then coroner Michael Stelter about the examination of the body, Oshkosh Police Detective Gerald Forseth about the cooperation of witness Todd Crawford, and Damon Hinkle about a conversation he had with Price's co-defendant Richard Pease, who was also convicted in Fitzgibbon's murder.

Price acknowledged he was at the murder scene, but has denied he killed Fitzgibbon.

"Mark Price does not come to this court claiming to be an angel. He made serious misjudgments, including some that led to his involvement in this case," Lichstein wrote in the motion. "Mr. Price has paid dearly for those misjudgments. He has spent nearly 25 years in prison for this conviction."

A hearing will be held before Winnebago County Circuit Court Judge Daniel Bissett on Sept. 25.

The motion claims Paulus "devised and executed" a plan to present perjured testimony, bribed potential state's witnesses and hid the bribery from Price and his attorney. The motion also claims Paulus withheld or destroyed evidence that would have been helpful to the defense.

Lichstein could not be reached for comment last week.

According to court documents, Stelter authorized the cremation of Fitzgibbon's body without ordering an autopsy. In court, Stelter testified he viewed the body at the funeral home, left for a while, and then returned, at which point he noticed a contusion behind Fitzgibbon's left ear. However, an analysis of documents completed after the trial indicate Stelter never viewed the body a second time, and Paulus knew that, according to the motion filed by Lichstein.

Forseth testified that Crawford was cooperative during initial contact with police and suggested in court that Crawford would be convicted and spend five years in prison for his role in the murder. However, the motion claims Crawford was actually uncooperative during the initial stages, and had to be threatened in order to win his cooperation. Crawford was never charged in connection to the murder.

The testimony from Hinkle was statement about a conversation with Price's co-defendant, richard Pease. While Hinkle testified at trial that Pease told him Price did not shoot Fitzgibbon, his story changed during a post-conviction hearing, when he testified that Price had forced him to write a false statement and threatened to hurt Hinkle and his family if Hinkle did not comply.

In a response brief, Winnebago County Deputy District Attorney Scott Ceman said the jury's verdict was not impacted by the inconsistencies in Stelter's testimony. Ceman also argued that the motions being raised rely on evidence that is more than 10 years old and questioned why those issues were not raised previously.

Paulus, who was district attorney from 1988 to 2002, was convicted in 2004 of taking bribes and sentence to 58 months in federal prison.

Price's first appeal of his conviction of the murder came the same year.

Separately, a judge in 2007 vacated Price's 1995 conviction on a charge that while in prison he attempted to use proceeds from a drug deal to arrange to have Paulus killed. Defense attorneys convinced the judge that prosecutors withheld audio-taped evidence suggesting Price's innocence in that case.

Lichstein was also involved in Price's defense in that case.

Bissett is the fourth judge in Winnebago County to be assigned the case. Circuit Court Judge Scott Woldt, Judge Thomas Gritton and Judge John Jorgensen have all recused themselves from the case due to connections with individuals involved in the case. Gritton and Jorgensen were both prosecutors during Paulus' tenure and Woldt heard part of the first motion appealing Price's conviction in 2004.

In letters filed with the court, Lichstein has asked that the post-conviction motion be heard by a court outside of Winnebago County.

Pease has no attorney and his homicide case remains closed.

Jennifer K. Woldt: (920) 426-6676 or jwoldt@thenorthwestern.com; on Twitter, @ONW_Woldt.