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Penny Brummer

The Wisconsin Innocence Project says DNA could prove Penny Brummer, seen here testifying in court in 1994, didn’t kill Sarah Gonstead. Brummer is serving life in prison and won’t be eligible for parole until 2044.

MADISON — Dane County District Attorney Ismael Ozanne has approved a new round of DNA testing in a 1994 murder case the Wisconsin Innocence Project says could prove a Spring Green woman’s innocence.

The project seeks to test victim Sarah Gonstead’s clothes, swabs from her body, fingernail scrapings, a tissue found near the body and a Taco Bell cup. Ozanne said his office will make the evidence available for testing at the expense of Penny Brummer, who was convicted of killing Gonstead.

Gonstead, 21, of Madison was found April 9, 1994, near Mineral Point Road west of Pine Bluff three weeks after she disappeared. She was last seen the night of March 14, 1994, when she went bar-hopping with Brummer, then 25. Brummer testified she dropped Gonstead off around 11 p.m. behind a bar on East Washington Avenue and last saw her standing near a group of people in a nearby Taco Bell parking lot.

According to the motion filed in Dane County Circuit Court, the clothes and underwear worn by Gonstead contain never-before-tested blood stains that do not appear to have come from the .22-caliber bullet wound to the head that killed her.

The case against Brummer was circumstantial. Prosecutors argued that after a night of drinking, Brummer, of Spring Green, killed Gonstead because of jealousy or because Gonstead had been advising Brummer’s ex-girlfriend to start dating men again.

Suspicion grew when a .22-caliber revolver that belonged to Brummer’s father couldn’t be found during a search of the family home, and after Brummer and Gonstead were identified as having been at a bar that night near where the young woman’s body was found. Brummer earlier denied the two had been at the bar but later conceded to police she may have “blacked out” from a night of heavy drinking.

The defense maintains Gonstead met her killer after Brummer dropped her off. At trial, Brummer’s side produced a witness who said he saw a man two nights after Gonstead disappeared with a bright pink object on the side of Mineral Point Road close to where Gonstead’s body — clad in a purple and pink jacket — was later found.

“The state produced no physical evidence, confession or eyewitnesses to the murder,” Innocence Project attorney John Pray argued in the motion. “Evidence that a person’s DNA is on multiple pieces of evidence and this DNA not belonging to Brummer would strongly suggest that someone other than Brummer was the perpetrator of this crime.”

Ozanne said state law requires him to turn over evidence for DNA testing at the defendant’s expense in cases in which the results could be relevant to a claim of innocence.

“We are charged with protecting the rights of all citizens, which also include the rights of defendants,” Ozanne said. “We can only do this if we at every point look to uphold the integrity of the criminal justice system. ... So if there are legitimate questions or concerns, it is important for all of us to try to address them.”

The motion states that most of the items have never been subjected to DNA testing, including the Taco Bell cup — found about 100 yards from the scene but possibly blown by the wind — the fingernail scrapings, swabs from Gonstead’s leg and pubic area and her jacket and T-shirt.

The testing is aimed at determining whether there is biological evidence from someone else that could raise doubt about Brummer being the perpetrator.

The motion states that multiple stains on the inside and under Gonstead’s clothes are “isolated” from the gunshot wound “and may have come from the killer.”

Brummer’s trial attorney, Jack Priester, said he would welcome testing.

“That case has always bothered me,” said Priester, of Madison. “I’ve never come to accept that verdict. There’s something more there, I’m sure of it.”

Nancy Brummer said she’s optimistic the results could set her daughter free after 18 years.

“It’s time for it (evidence) to come out in the open and finally clear her, because she’s innocent,” Brummer said. “She and I both really think this is it — it’s something that’s going to prove her innocence.”

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