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Roundtable Discussion

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Byron C. Lichstein

Byron C. Lichstein is a clinical instructor at the University of Wisconsin Law School’s Frank Remington Center. He also provides research and staff assistance to the Innocence Project, which investigates and litigates inmates’ claims of innocence.

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Raymond M. Dall’Osto

Raymond M. Dall’Osto is a partner at the Milwaukee firm Gimbel, Reilly, Guerin & Brown. He specializes in civil, criminal and constitutional litigation in state and federal courts. Dall’Osto served on the Avery Task Force.

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Scott L. Horne

Scott L. Horne is the La Crosse County District Attorney. Horne served on the Avery Task Force. Horne, a 1979 graduate of the University of Wisconsin Law School, is president of the Wisconsin District Attorneys Association

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Rep. Mark D. Gundrum

Rep. Mark D. Gundrum (R-New Berlin), who was originally elected to the Assembly in 1998, established the Avery Task Force following the exoneration of Steven Avery. He is an attorney with the Mukwonago firm Hippenmeyer, Reilly, Moodie & Blum SC.

The state Legislature is moving forward with a bill designed to reduce wrongful convictions. Assembly Bill 648, which the Assembly passed 96-0 on Sept. 27, was created using the recommendations of the Avery Task Force. Rep. Mark Gundrum (R-New Berlin) established the group following the exoneration of Steven Avery, who spent 18 years in prison for a sexual assault he did not commit. Post-conviction review of DNA evidence showed the crime was committed by someone else. The Task Force included legislators, judges, prosecutors, law enforcement officers, representatives of law schools, public defenders and a victim advocate. The state Senate is reviewing the bill, which it is expected to approve. Last month, the Wisconsin Law Journal brought together a group of people familiar with the legislation to discuss how it will affect criminal cases. What follows is Part I of their roundtable discussion.

WISCONSIN LAW JOURNAL: I want to start out by simply asking everyone to comment on what you see as some of the most significant aspects of the legislation.

RAYMOND M. DALL’OSTO: Regarding the Avery legislation, the primary impetus for us was the disclosure of a case that came out of Manitowoc County where an individual had been charged, tried, convicted and sentenced to a term in prison for sexual assault. As it turned out, based on DNA evidence, he did not commit it. By the time all of that came out, he had done some 18 years in prison. This began an outcry of, “How could this happen? We don’t want to have this happen again.”

I had been chairman of the State Bar’s Criminal Law Section, and we had been working with the Wisconsin Innocence Project. Our section had been working with the Wisconsin Innocence Project to try to formulate a more permanent Innocence Project, or some kind of structure in place to make sure that certain reforms of the system would happen. We wanted to avoid having innocent people sent to prison or do our best to make sure that didn’t happen and, when evidence of their innocence comes up, that the things move quickly to make sure that they are released and exonerated.

Representative Mark Gundrum … made a pronouncement that he wanted to convene a special task force to undertake that similar type of goal. I contacted Mark and we had some very eye-opening and fruitful discussions.

What began as the most impressive component in addition to the actual legislation that has come out, is, under Mark’s tutelage, a task force was put together that combined all components of our criminal justice system. … You had a bipartisan across-the-board collection of individuals who best knew what would go on and what needed to be done.

From the outset, Mark indicated that he wanted everyone to talk bottom line. Don’t talk about protecting turf. Don’t talk about what’s the prosecutor’s fault, or the cops’ fault, or the defense lawyer’s fault. … We want to make sure we can fix the problem and do our best.

A series of hearings was undertaken, with top experts from around the country. … We were able to identify the problem, identify potential solutions, and then go around the commission and agree on what would be the best legislation.

Having dealt with the State Bar and the Legislature for almost 30 years now, this was probably one of the best examples of how legislation to address a problem should be done.

MARK D. GUNDRUM: One wonderful by-product of putting together the Avery Task Force … was the fact that so many other aspects of the criminal justice system kind of picked up the ball and started following along.

At the defense attorneys’ conferences, this was the focus. And the reforms we were talking about — prosecutors were talking about them. We went down and presented to [the Chiefs of Police Association]. A whole legislative counsel judicial symposium was put on last fall that was attended by a lot of judges in the state, including the Supreme Court members, court of appeals members, et cetera.

Avery’s release was used as a catalyst to begin looking at … new things. &#
133; There are new things we could be doing to improve the justice system. Those things almost always work to the advantage of both the prosecution side and the defense side.

You can definitively have somebody found to be guilty based on DNA. And you can definitively say that’s not the person based on DNA. … So when those opportunities come up, they need to be capitalized on to improve our system as much as possible. I think we did that.

The components of the task force are all very important. Electronic recording is going to be a wonderful thing. Five years from now, law enforcement is going to be very appreciative of it. … With electronic recording, it’s pretty obvious. You get the opportunity to listen to people’s voice inflection. If it’s videotaped as well as audiotaped, you get to see whether they look away with their eyes when a certain question is asked. You get to see what they look like two hours after they were in custody for a sexual assault versus the only picture the jury sees is all gussied up, hair slicked back, in a nice suit eight months later at the trial. You get a much fuller picture of exactly what that person said.

It can work to the prosecution advantage. It can work to the defense advantage, but it absolutely works to the advantage of truth and justice.

The eyewitness identification procedures are very important because mistaken eyewitness identification is a number-one contributor to wrongful convictions around the country. Once a misidentification has been made and then law enforcement gets the right person two weeks later and the witness or victim has already misidentified somebody, that witness or victim is spoiled. So it’s very, very important to have good procedures in place right from the get-go.

What ended up happening is exactly what I had hoped would happen and knew would happen. The Department of Justice got a hold of our policy after we completed it in January. They put together their own policy, and two months later they came out with that. Now they’re starting to train law enforcement around the state and try to have everyone on the same page.

And the DNA components, those are very important as well. One was really to just take the opportunity and try and help alleviate some of the storage concerns for law enforcement on [the 2001 statute]. It was written maybe a little too broadly and being interpreted that more needs to be kept than is really necessary for determining guilt or innocence.

In addition to that, we did a piece which really was important to me. This stemmed from the Avery case, and it’s going to be extremely rare that this comes into play.

But when it does, it’s important. Once a court orders that new post-conviction testing be done, that goes to the head of the line at the crime lab.

Now, we put in a little amendment to make sure that there’s no conflict with speedy trials. … But it gives a directive that [the testing doesn’t] just go to the end of the line in the normal queuing process. Because if somebody’s innocent and they’re spending a year and a half extra in prison, like Avery was, just because of the backlog, that’s a problem.

The last component really kind of was prompted as I was thinking of the Avery case and Gregory Allen, the real perpetrator of that sexual assault. Here it was 18 years afterwards that you finally found out who the real assailant was. We changed our statutes in 2001 to allow prosecuting of individuals for sexual assaults where you have a DNA match beyond the statute of limitations’ time period, but we didn’t allow the prosecutions for all the related crimes at the same time.

Take the Avery case, for example. There was a false imprisonment charge that he was convicted of. There was an attempted homicide charge he was convicted of. Well, those wouldn’t have been able to be prosecuted against Gregory Allen, the real perpetrator, after the fact without this change in the law. … I thought it appropriate to be able to prosecute those as well at the same time as the sexual assault beyond the statute of limitations’ time period.

Those are all the components. I think they are all very important, and they all go to the heart of truth and justice for our system.

BYRON C. LICHSTEIN: What’s noteworthy to us about the legislation is that it makes a good start at addressing some of the primary causes of wrongful conviction. We have had, since the advent of DNA, 162 … DNA exonerations. When you add on non-DNA exonerations, that number at least doubles. Of course, that number is just a small portion of the actual number of wrongful convictions. So this is a substantial problem.

I think this legislation takes a good shot at some of the primary causes. The two I’d like to talk about here are eyewitness identification and false confessions.

The legislation encourages law enforcement authorities to adopt procedures that will reduce the likelihood of misidentification. That, as we all know, is the primary reason Steven Avery was wrongfully convicted. It does that in a few ways. One way is by recommending a double-blind procedure for eyewitness identification procedures. Essentially all that means is that the person administering the procedure should not be in a position to unintentionally influence the witness. I’m not talking about intentional suggestion by the lineup administrator, just unintentional cues to an eyewitness. It’s been shown by social science research … that a double-blind administration reduces the chance of misidentification.

The second primary way it does this is it encourages law enforcement authorities to conduct sequential identification procedures rather than simultaneous. All I mean is when a police department is conducting a lineup or photo array, the old way of doing things was to present all of the lineup members simultaneously, at once.

The new way … is to present the lineup members serially, one at a time. This discourages misidentification because it prohibits or discourages the relative judgment process, which is a process where witnesses who are looking at an array with all six members at once tend to pick the person who looks the most like the perpetrator even if the perpetrator is not present.

The second most significant provision in terms of preventing wrongful conviction is the electronic recording of interrogations. I th
ink this tends to reduce the likelihood of wrongful conviction in a couple of ways. One is that it deters misconduct on the part of the police.

Now, I think that kind of misconduct is very rare. But for that rare law enforcement official who might be inclined to do something that he wouldn’t want to have seen on tape, the videotape does act as a deterrent. Second, and probably more significantly, electronic recording allows a jury or a fact finder to look at the exact interaction that took place between a suspect and an interviewer and determine what exactly that means.

It may have been interpreted by police and prosecutorial authorities as an admission of guilt, but a jury might see it differently. Electronic recording gives juries the opportunity to avoid convicting innocent people who make incriminating statements that really aren’t actual confessions.

Representative Gundrum noted that this legislation is sort of a piece with other efforts that have been going on around the state. I wanted to emphasize a point that the Wisconsin Supreme Court has also recently weighed in on a lot of important issues too. This legislation works hand in hand with the recent decision of the Supreme Court in the Jerrell case, which mandated electronic recording of interrogations in juvenile cases, and also another case called State v. Dubose that deals with show-up identifications. It changes the standard of admissibility in cases where the police conduct a show-up.

I just want to emphasize that the response from Wisconsin government has been impressive both in the Legislature, the Supreme Court, and also the Attorney General, who recently implemented a new model policy on eyewitness identification which goes even further than the recommendations in the Avery Task Force legislation.

SCOTT L. HORNE: First, I just want to make clear that I believe that this is the best legal system on earth. I think it does a good job of determining the truth better than any other system man has created. But it also is a human system and subject to error. When we have an opportunity to identify sources of error and make corrections which will allow us to do a better job of finding the truth and achieving justice, we need to do that.

This committee is an example of the way government ought to operate in the sense that all interested parties were brought to the table and asked to sit down, identify concerns, and then really reach a consensus as to how best to improve the system.

I think Ray had made the observation that it’s better than a common legislative reaction, which is to look at a case, make a correction without involving everyone at the table. I also think it’s better than judicial rule making. When judges make rules in the context of individual cases, they have the parties to the case at the table and making arguments. But they don’t have all interested parties that will be affected by the rules that are promulgated of the parties.

They don’t have law enforcement. They don’t necessarily have prosecutors or at least a cross-section representation of prosecutors. They don’t have victim/witness people. They have an attorney representing the client, but they don’t have full representation across the spectrum of the defense bar. I think what happened in this procedure is that we had everyone at the table. Everyone had an opportunity to air their concerns. And I think the result — true consensus — is a much better product than could be obtained through any other process.

With respect to eyewitness identification, research has shown that there are better ways of doing eyewitness identifications. If we’re serious about trying to do justice, then we ought to take advantage of current research and adjust our practices if we can do it better.

The Attorney General promulgated recommendations to law enforcement that were consistent with the task force recommendations at a number of statewide trainings.

A large number of law enforcement agencies, even before the first vote was taken in the Legislature, had incorporated those recommendations into their daily practice.

So I think it really speaks well of the commitment on the part of natural adversaries to really lay down those adversarial roles when it comes to looking at the system, looking at the procedures that we’re employing, and trying to come up with better ways of doing business.

With respect to the taped custodial interviewing, I think that probably was the area in which there was the most discussion … probably the area in which one would expect the most resistance from law enforcement. But as the discussion progressed, I think what we saw was not so much in opposition to the concept of doing recordings, but really the circumstances under which recordings were going to be required and what sort of sanctions would be applied in the event an interview was not recorded.

I think the product of this process was really a balanced product that took note of circumstances in which legitimately it would be very difficult to conduct a recording but established a principle that recorded interviews are the best practice and ought to be the policy in the state of Wisconsin.

I believe law enforcement does a good job in conducting interviews. These tapes will demonstrate that. As Mark indicated, it will be very clear to a jury how a defendant is reacting. They’ll be able to assess not only a summary of what was said, they’ll be able to assess the words themselves, and perhaps more importantly, the nonverbal cues that are given off by a suspect. … It will be very clear to a jury what exactly was asked and what exactly the answer was.

There were some technical modifications that I think will really advance the usefulness of DNA testimony. Certainly we’re very supportive of it.

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Roundtable – Part II

I think the third very significant piece of this, other than the process that was used, the product that came about is the fact that through the Criminal Justice Study Commission that’s been created, there exists an ongoing process or way of looking at the way we do business and looking for improvements in the process.

That’s hopefully a commission that the Legislature will look to in the future as we debate changes in the criminal justice system, recognizing that that also will be a group that consists of a cross-section of the criminal justice community. If that group is able to reach consensus on issues, then certainly that should be given great weight in considering changes that might be recommended.

It’s been a real privilege to be a part of this commission. Because while we may fight like cats and dogs as adversaries in the courtroom and individual cases, I think we have a broader responsibility as professionals to the system. If we can find better ways of allowing us to do a better job of arriving at the truth, we have a mutual obligation to do that.

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