Legislature holds hearing on Avery Task Force reforms

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Twenty years ago, Penny Beerntsen was sexually assaulted by Gregory Allen, but identified Steven Avery as her attacker. Yet even though she knows that Avery was not the one, she still sees his image when she recalls the attack, so suggestive were the identification procedures then in place, and still in place throughout the state.

A new bill would change that, and reduce misidentifications, as well as require electronic recording of all interrogation, and make other reforms.

The Assembly and Senate Judiciary Committees held a hearing on the reforms recommended by the Avery Task force on Wednesday, Sept. 7.

Many witnesses, including Avery and Beerntsen, spoke in favor of the bill. Avery served 18 years in prison for the assault before DNA testing proved the crime to have been committed by Allen. No witness testified against the bill.

The bill was introduced by State Representative Mark D. Gundrum.

Interrogations

The bill would codify the Wisconsin Supreme Court’s July 7 decision in State v. Jerrell that requires recording of all custodial interrogations of juveniles. The bill would provide that an unrecorded custodial statement by a juvenile is inadmissible in evidence unless one of several exceptions apply.

The exceptions are: that the juvenile refused to cooperate if the interrogation was recorded; the statement was made in response to a question asked as part of the routine processing; the interrogator in good faith failed to make a recording due to equipment malfunction; the statement was made spontaneously and not in response to questioning; or exigent public safety circumstances prevented recording.

For adults, the bill provides that it is the policy of the state to record any custodial interrogation of an adult suspected of a felony, unless one of the above exceptions apply.

However, the bill would not require suppression as the remedy for an unrecorded adult statement. Instead, the jury would be instructed that it is the state’s policy to record interrogations and that the jury may consider the absence of a recording in weighing the evidence.

To fund the equipment necessary for the changes, the bill creates a grant program administered by the Office of Justice Assistance, to be funded by increasing the penalty surcharge amount from 25 to 26 percent of the amount of fines or forfeitures assessed by a court.

Identifications

The bill would also require law enforcement agencies to adopt written policies governing identifications. The bill does not require any specific policies, but requires that agencies consider, among others, double-blind identifications (the person administering the identification does not know which person is the suspect and which are fillers), and sequential, rather than simultaneous, showings.

The bill also amends the statute of limitations if a positive DNA match is not made until after expiration of the limitations period. In 2001, the statutes were amended to allow extension for sexual assault crimes. The new bill allows other crimes, such as burglary or battery, that occur during the course of a sexual assault, to also be initiated after a DNA match is made.

In addition, the bill would provide that, when a court orders post-conviction DNA testing, those tests get immediate priority at the state crime lab. Avery’s tests were not performed until a year-and-a-half after the judge ordered they be performed.

Testimony

Avery testified that, while in prison, he lost his children and his wife divorced him (even though his wife was with him at the time of the offense and knew he was innocent). Stating that the bill was on the right track, Avery said, “I had to go through that. I don’t want what happened to me to happen to anyone else.”

Beernsten testified that it was two years to the day since she discovered that she had mistakenly identified Avery as her assaulter. “Not a day goes by t
hat I don’t think about that. We can’t turn back the clock to right these wrongs. We can only lessen their likelihood in the future.”

After giving the details of her assault, Beernsten described the procedures by which the mistaken identification occurred — the making of a composite drawing based on her description, and picking Avery out of both a photo array and a lineup.

In addition, although the city of Manitowoc had a different suspect than Avery, whom the sheriff’s department suspected — Gregory Allen — and had been surveilling him daily, except for the day of the attack, Beernsten stated she never knew of his existence until after the DNA tests.

Discussing the merits of sequential, rather than simultaneous identifications, Beernsten stated “simultaneous viewing allows the victim to make a relative judgment, like a multiple choice quiz. Sequential becomes more like true/false.”

Beernsten also testified in favor of double-blind procedures, to avoid unconscious verbal and nonverbal cues on the administrator’s part. She also stated that victims should be instructed that the person may or may not be present in the array to avoid pressure to pick someone.

In addition, she urged that the eyewitness’ confidence should be immediately assessed. She stated that she received positive feedback that the person she picked was the guilty person, and was told he made incriminating statements. Stating that her confidence level kept going up, by the time she got to trial, she was absolutely certain that Avery was guilty.

Beernsten testified, “The losses of Avery and his family are immeasurable. The proposed legislation will reduce the likelihood of future wrongful convictions. Every wrongful conviction is also a wrongful acquittal, and we’ll never know how many people [Allen] attacked in 10 years. I am not here to place blame. I am acutely aware of the role I played in this miscarriage of justice. I am here to celebrate that so many took actions to do something. In the name of Gregory Allen’s other victims, and in the name of Steven Avery and all others convicted of crimes they did not commit, I urge you to consider this legislation.”

Both Avery and Beernsten received standing ovations from the committee members and others in attendance.

LaCrosse County District Attorney Scott Horne, President of the Wisconsin District Attorneys Association, and a member of the Task Force, also spoke in favor of the legislation. Addressing identification procedures, Horne stated, “We support the recommendations of the task force. Research shows we can do better. The legislation requires law enforcement to look at state of the art procedures. In LaCrosse, we have already met with police chiefs, and expect the recommendations to be fully implemented by the end of the year.”

The only caveat that Horne expressed was with priority being given to post conviction DNA testing. Horne stated, “We agree that two years is too long to wait for testing, but in the real world, there are defendants with speedy trial demands. We ask that, when the bill says to give priority to post-conviction testing, to include ‘consistent with the rights of defendants to a speedy trial.’ We don’t want people released from custody in current cases.”

Turning to the recording of interrogations, Horne defended the jury instruction as a sanction, instead of the exclusionary rule. Horne testified, “What the bill does is create a sanction that says, ‘This is the state’s policy and it has been violated.’ No law enforcement officer wants to be cross-examined why he didn’t record the interrogation, and no D.A. wants that instruction.”

On questioning from Representative Teri McCormick about procedural due process issues, Horne stated that he doesn’t view it as a constitutional issue, but only as a statutory issue, and the bill would not create a due process right to recording.

Horne added, “Personally, I regard it as something that will be helpful. It eliminates disagreement about what was actually asked and actually answered. It will probably benefit the state in most cases.”

Defending the jury instruction sanction, Gundrum stated, “The goal is to have the equipment and have interrogations be recorded, not to allow the guilty to go free. I think the instruction will be rare; interrogations will be routinely done.”

Gundrum added that, although Minnesota and Alaska require recording and impose suppression as the remedy for failure, Massachusetts recently went the jury instruction route, and he urged the legislature to do the same. “I think it will get the job done, and be more politically palatable.”

LaCrosse Police Chief Ed Kondracki, Chairman of the Wisconsin Chiefs of Police Association, and also a member of the Task Force, spoke in favor of the bill, as well.

Kondracki stated, “I’m here to say we do indeed support this. There is an expectation that law enforcement ought to be recording interviews.” Turning to identification, Kondracki stated, “The old identification means — showups, lineups, photo arrays —were efforts to be as objective as possible. The opposite can be the reality.”

Keith Findley, director of the Wisconsin Innocence Project, which represented Avery, and another member of the task force, also spoke in favor of the bill, on behalf of the State Bar Criminal Law Section.

Findley noted that, nationwide, there have been 162 convictions overturned because of DNA evidence, although there is no way to know how many innocent people are in prison.

Noting that 25 percent of sexual assault suspects today are excluded by DNA evidence, Findley stated that, in cases without DNA, 25 percent of suspects are likely innocent as well.

Findley stated that, in known cases of wrongful conviction, studies vary from 64 percent to 85 percent, but all find eyewitness error to be the number one cause of wrongful conviction. In rape cases, Findley stated, the number is 90 percent. False confessions constitute the number two cause, from between 15 percent and 24 percent of cases.

Discussing the Avery case, Findley stated that eyewitness testimony is so com
pelling that, even though Avery had 16 alibi witnesses, it could not overcome the identification.

To demonstrate that people do not accurately perceive what they see, Findley played a videotape of two groups of basketball players — one dressed in white and one in black — and asked those present to count the number of times that the white team passed the ball.

Findley then asked if anyone noticed anything odd about the video, and no one did. Findley the replayed the tape, and told the panel to just watch and not count passes. This time, everyone noticed that a man dressed in a black gorilla outfit walked right through the middle of the basketball players.

Findley also observed that the proposed legislation responds to the recent Wisconsin Supreme Court decision in State v. Dubose, which limited the use of showup identifications to instances in which it is necessary.

Defending the electronic recording requirement, Findley stated it would deter police misconduct, protect police from false claims of coercion, produce powerful evidence of guilt, and reduce the number of suppression motions and trials. Findley stated, “These are really win-win propositions for everyone in the criminal justice system.”