Roundtable Discussion

Listen to this article

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.

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.

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

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.

WISCONSIN LAW JOURNAL: We’ve already talked about electronic re-cording of interrogations when a suspect is in custody. We’ve mentioned that the Supreme Court in State v. Jerrell determined that should be done in cases involving juveniles. How does that practice change the approach that should be taken by prosecutors and by defense attorneys?

RAYMOND M. DALL’OSTO: It was our hope and I think the law will progress so that electronic recording should apply to, at the very least, all felonies, whether adult or juvenile. As it’s being enacted — it hasn’t been yet — you’ve got sort of a gray area. You have the Supreme Court decision imposing the rule for juveniles.

Departments are reacting. There will be a duty on defense lawyers to determine, if there was recording capability and means available, was it used, was it not.
We’re going to be in a transition period for about a year. Once the techniques and the procedures become common, I think many departments — at least that’s my hope — are going to say, “What the heck; if we’re going to do it for juveniles in felonies, let’s just do it for everybody.” Even though the legislation may say down the road it gives you a little bit of leeway and time to implement that, it would be my hope (that they would do) it right rather than piece-mealing it.

WLJ: Is electronic recording going to change the way that prosecutors approach the cases that they’re taking a look at?

SCOTT L. HORNE: Yes. Obviously, it’s a piece of evidence that’s going to be important in evaluating the case and determining the strength of the case. I think, as Ray indicated, there will be a period of a year or so. … I think it’s going to become second nature with law enforcement, frankly. I’ll be surprised if it isn’t used in virtually every case.

The concern that I’ve heard among prosecutors, to the extent there is a concern expressed, is the impact that it’s going to have on preparation time. It takes far longer to listen to or view a 45-minute or an hour-long interview than it does to review a short synopsis of that interview. So there’s a question — is this going to have a big impact on preparation time and staffing requirements for DAs’ offices?

I’m not convinced that it is going to have a huge impact. There’s a realistic likelihood that, to the extent there’s more time required in preparation, the certainty of the evidence will result in fewer trials than we have currently and save on resources in that way.

MARK D. GUNDRUM: Let me just add something I wanted to add before, if I could. Scott touched upon this a little bit before. … The willingness of law enforcement to come along with these things has been absolutely crucial. … I knew from the get-go that if we had the chiefs of police, if we had the prosecutors opposed to this, it wasn’t going to be flying in the Legislature.

So their willingness to be open and to look at possible new ways of doing things better and treading into new ground really was extremely important to this legislation happening and, ultimately, to the improvements that we’ll see.

DALL’OSTO: This has got to be an issue that all of us in our criminal justice system are making sure the innocent are not convicted. … Mark was right to direct his attention to bringing law enforcement on board.

In response to what Scott said — another aspect of the defense impact of some of these reforms is in drunken driving cases where many police departments have implemented videotaping in the squad cars of when they do a stop, they do an arrest, they do the field sobriety tests. From the criminal defense perspective, they’re quite often killer. That will resolve the case right there when you show that to your client.

BYRON C. LICHSTEIN: I think one practical issue that we haven’t touched on is the remedy for the failure to record interrogations with adult suspects. That remedy is a jury instruction. If law enforcement fails to record when recordin
g is feasible, the judge will instruct the jury that electronic recording is statewide policy and that the jury can consider the failure to record when evaluating the evidence. That remedy represents a shrewd compromise on the part of all the members of the task force.

That was an issue that was debated about — whether the remedy should be suppression of evidence, whether there should be no remedy, whether it should be a jury instruction. The jury instruction route is a middle ground, a place where all the members of the task force were able to find compromise. The hope is that that jury instruction will be enough to change practices and to encourage law enforcement to use recording. Once they start to use it, they’ll see how much they like it and it will become common practice.

HORNE: From our perspective, I’m not sure that even the jury instruction is necessary. But I do believe that’s going to be more than enough if the goal is to promote the very widespread use of recording among law enforcement. As a prosecutor, I do not want to go to closing argument in which the defense attorney is able to cite a jury instruction from the court indicating, in essence, that law enforcement has not met the public policy requirements of the State of Wisconsin. And advising the jury that that’s a significant enough departure from public policy that they can consider that in evaluating the credibility of law enforcement in reaching a verdict.

WLJ: Post-conviction DNA testing arose as a significant issue in the Avery case. Earlier Byron mentioned that 162 people have been exonerated as a result of post-conviction DNA testing. How is this legislation changing that?

DALL’OSTO: I was quite involved in the original drafting of the post-conviction DNA statutes when I chaired the Criminal Law Section. I worked at that time with Reps. (Sheldon) Wasserman and Scott Walker, now Milwaukee County Executive. What propelled that bill were certain cases and the efforts of Assistant District Attorney Norm Gahn in Milwaukee County who was the preeminent DNA specialist among all state prosecutors.

And this legislation that was enacted both extended the statute of limitations for sexual assault prosecutions and, as Rep. Gundrum talked about, the current Avery Task Force proposal would add crimes which sort of orbit that sexual assault, whether it’s an entry, or a burglary, or an attempted homicide to also be included in the DNA testing.

It’s important that the post-conviction testing for DNA law be strengthened. This legislation … will provide this bumping-up or prioritizing of post-conviction requests for DNA testing at the State Crime Lab and also help to provide some funding.

LICHSTEIN: The provision on giving priority to DNA testing that may prove innocence is going to come into play in a very small number of cases. The reason for that is that the priority only attaches once a court has already ordered post-conviction DNA testing, meaning that the person wanting the testing has already met a standard that’s shown that if the testing is successful, it will make a difference in the case.

So in those cases where the person wanting testing makes that showing, it’s important that that testing is given priority. But I think it’s important to emphasize that it isn’t going to open the floodgates and put all instances of DNA testing to the top of the chart.

HORNE: There was an amendment that really reflected a concern that priority given in the legislation would require the crime laboratory to give priority to old cases over current cases in which there are speedy trial demands, the result being that a defendant who’s guilty of a serious crime could be ordered released from custody because of the failure to meet deadlines. And I think Rep. Gundrum obviously recognized that that’s not something that we want to see happen.

So the balance that was achieved in that amendment is a very positive one. It ensures that people like Avery aren’t going to be going two, two and a half years while awaiting testing. On the other hand, it ensures that victims and defendants in current cases will get their day in court promptly as well.

WLJ: It’s been noted that the number-one contributing factor to wrongful conviction is misidentification by an eyewitness. How is the new legislation addressing the issue and what will that mean for prosecutors and defense attorneys?

GUNDRUM: It’s addressing it by requiring that you have a written policy in place. Now, that alone wouldn’t do a whole heck of a lot except the supplemental that we did at the task force by putting a policy together and kind of jump-starting the Department of Justice to put their policy together and start training around the state.

Once this is in place, every department will have probably DOJ’s eyewitness identification procedures as their policy, as what they are trained on and the way to do it, which is proven to be a better, more sound, solid way to get proper identifications and not spoil witnesses unintentionally. So that’s extremely significant.

HORNE: That’s certainly true. It’s a human system. As long as we have a human system, it’s not going to be perfect. But it is going to be more reliable than what we had before. That’s a very positive thing. The eyewitness identification obviously will have an impact on the procedure that’s used by law enforcement. I don’t see the new procedure as being particularly cumbersome or anything like that.

There are issues that smaller departments will have to address when it comes to the double-blind procedure in which someone who’s not familiar with the investigation of a suspect is administering the lineup. Smaller departments who don’t have large numbers of officers or other people working during certain hours are going to have to make sure there’s some accommodation for that requirement. I think it is a requirement that will be used, but there’s going to have to be some accommodations made to ensure the availability of an independent person to administer the lineup.

I would see the changes as reducing the number of occasions in which there’s an expert challenged because the procedure that’s being used by law enforcement is going to conform with the best that current research has to offer.

WLJ:
If police fail to follow the best practices when an eyewitness identifies a suspect, what does that do to the case?

GUNDRUM: It’s up to what they have in their policy. Actually, it’s kind of hard to know at this point because we really didn’t touch on it. Early on there was some advocacy that, if the policies weren’t followed, the identification had to be thrown out.

We didn’t want to go that route and that far. So we didn’t really touch upon that. But understand that law enforcement can always put an out in its own individual policies. We put together model practices, but they get to write their policies.

HORNE: I think the larger impact on law enforcement procedure is going to be felt through the (State v.) Dubose decision. I think there’s a lot of confusion right now among law enforcement over when, if at all, they can utilize show-up (identification). Gary Wells (an expert cited in Dubose) recognized the need for show-ups and the desirability of show-ups in particular circumstances and sought to address it by proposing standards which reduce suggestibility but still allow law enforcement to utilize them in certain cases.

It’s not clear that the Supreme Court (justices) endorse that approach, and they seem to be ordering requirements where law enforcement basically does not use show-ups in favor of photo lineups. That is going to result in individuals being detained for longer periods of time while law enforcement puts together a photo lineup.

I think that’s going to have a far greater impact on law enforcement procedure than the requirements of the Avery Commission regarding eyewitness identification.

LICHSTEIN: I think what the Dubose case makes very clear is that these guidelines are now relevant to the question of whether identification procedures are unnecessarily suggestive and, therefore, whether certain identifications are admissible. Dubose only dealt with show-ups. But I think it’s probably fair to say that the writing is on the wall for other kinds of identification procedures and that a case probably is coming soon before the Wisconsin Supreme Court where (it will) be asked to change the standard of admissibility for lineup and photo array evidence too.

And in that case I’d suspect that the same argument will be made that we have a set of best practices that are based on social science, and the standard of admissibility should reflect that social science. So I think guidelines like the ones that are in this legislation, like the Attorney General’s guidelines that are rooted in the social science, they’re very important to the development of the law in the area of eyewitness identification.

DALL’OSTO: I agree with Byron that we have this educative approach that what has come out of the product of the Avery Task Force both in the testimony before it and the final legislation, and this is going to be the subject of training throughout. If it can increase the sensitivity of law enforcement … I think having them understand that there are better ways that can simply be conducted to ensure that there is less chance of skewing or directing someone towards a particular individual as being the suspect, so you have a fair view by the witness or the victim, that’s going to go a long way to improving the system.

I also caution defense lawyers. On occasion you will get called into the lineup. You have to be very careful and scrutinize, particularly in small station lineups. If they don’t have those to draw from the local jail or other civilians, make sure that of the five who are in the lineup, four of them don’t have your black rubber-soled police shoes on when your client has tennis shoes or sandals.

WLJ: I want to go around the table and give everybody a chance to share any final thoughts.

HORNE: I’d just say it was very much a privilege to be a part of this (task force). As I indicated earlier, I think it’s really the way government should operate in which everybody is at the table with a common goal, devising a system that allows us to do a better job finding the truth. I think that was the approach. I think that was the product.

LICHSTEIN: I’d just like to note briefly … the good work of the Avery Task Force is going to be carried on by a new commission which is known as the Wisconsin Criminal Justice Study Commission. That’s a partnership of four entities, the University of Wisconsin Law School, Marquette University Law School, the State Bar of Wisconsin, and the Wisconsin Attorney General’s office. Essentially, that commission is going to consider other issues that impact on the reliability and accuracy of the criminal justice system. They’ve already had one meeting, and another meeting is coming up in November. We hope that this effort to consider some of these issues and make recommendations and reforms that are workable for everyone involved, we hope this effort will continue.

GUNDRUM: I want to make it noted how much I appreciate everybody who participated in the task force, both as coming to testify and also coming to participate regularly as a member of the task force. … I didn’t want to have a lot of very professional people whose time is worth a lot of money just coming for another set of meetings to talk and pontificate upon what they’d like to see done, but not actually make a difference.

I appreciate all the time that was given to this and the willingness of folks to be flexible and to bend a little bit and to come to the right place for the good of the justice system in the future….

It’s a great process that I’ve been through. I’m very proud of the work everyone has done, from the State Bar to the defense association to the prosecutors, the chiefs, the judges. They really have just picked up the ball and begun to carry this and saw this as something important. It’s too bad somebody spent 18 years in prison, but (it was good) to use that as a catalyst to make the whole system better for everyone. I think we’ve accomplished that.

	Related Links Roundtable – Part I

DALL’OSTO: I agree with the three prior comments. And I would say, again, the professionalism of all those of us working in the criminal justice system and in our legal system as a whole was called to task on the Avery case. We learned something and it may sometimes take a tragedy to reassess systems, to reassess what we can do and to do it better. Avery’s testimony before the task force was heart rending, along with the victim who forgave him and forgave herself because she was feeling bad about it.

People have to remember that both sides of the criminal case involve individuals. Do not jump to conclusions, whether you are a defense lawyer doing it or a police investigator or a prosecutor, particularly in these important cases where they have significant exposure. Do it well, do it methodically, don’t jump to conclusions too quickly and then make your decision.

This legislation provides tools that will allow those decisions to be made with a much better factual basis. I think we’re going to have a better system all around. This is evolving, and there will be more said on this and litigated in the future.