By TODD RICHMOND
MADISON, Wis. (AP) – A man convicted of robbing two Milwaukee grocery stores nearly 20 years ago deserves a new trial because new digital enhancements have raised doubts that he’s really the robber shown on surveillance video, a state appeals court ruled Tuesday.
Brian K. Avery was 19 years old in 1994 when detectives accused him of being part of a gang who robbed the stores over two days. A jury convicted him of armed robbery and he was sentenced to 30 years in prison.
He has argued for years that new digital enhancements that weren’t available at the time of his trial show that a man on the tape whom police detectives identified as him was much too short. The 1st District Court of Appeals ruled Tuesday that the real issue in Avery’s case — namely, whether he was one of the robbers — hasn’t been fully tried and granted him a new trial in the interest of justice.
“If you know Brian at all, he’s just the kindest, gentlest person you’d ever meet. Nothing makes sense about this conviction,” said Avery’s attorney, Keith Findley, co-director of the Wisconsin Innocence Project.
A spokeswoman for the state Justice Department, which handles felony appeals on behalf of local prosecutors, declined to comment.
According to the appeals court ruling, prosecutors believed Avery was among a group of men who robbed Malone’s Fine Foods on the evening of July 7, 1994, and the Atari Food Market the following afternoon.
Police showed a 15-year-old girl who was in Malone’s during the robbery the store’s surveillance tape. She identified one of the robbers as “Brian,” who lived near her.
She described him as being between 5-foot-10-inches and 6 feet tall and about 16 years old. The next day, police gave the girl a stack of photos, and she picked Avery’s out. But Avery is 6-foot-3 and was 19 at the time of the robbery, not 16. The girl denied at trial that she ever identified him.
Avery, meanwhile, had alibis for both robberies. On the night of the Malone’s robbery, he said he was watching a basketball game with two University of Wisconsin-Milwaukee assistant coaches, including Ulric Cobb, who become the school’s head coach the next year. He was home during the Atari robbery, noting phone records show he called a friend from the house while the robbery was taking place. His cousin also testified he ate lunch with him at the house at the same time.
However, he acknowledged to detectives during an interview that he was involved in both robberies. He testified at his trial that he gave a false confession because he was hungry and detectives told him if he cooperated he could go home, but it didn’t matter.
In 2007 Avery launched an appeal based on the height of the robber in the surveillance tape. He maintained that digital enhancements that weren’t available until 1998 — years after he was convicted — had enabled an expert in photogrammetry to determine the person in the tape was really several inches shorter than him. Photogrammetry is the science of measuring objects in still photos and videos.
Avery contended that the new evidence bolsters his alibis and confirms his confession was false. He asked a Milwaukee County Circuit Judge Dennis R. Cimpl to grant him a new trial.
Avery’s expert testified at a hearing that the person in the tape couldn’t be 6-foot-3. Prosecutors countered with an FBI digital evidence expert, but he could neither confirm nor deny that conclusion.
Cimpl ultimately decided the measurements weren’t reliable.
The appeals court ruled that rather than assigning credence to one expert or another, Cimpl should have limited his decision to whether the new evidence would create a reasonable doubt about Avery’s guilt, the appeals court said.
Applying the same test, the appeals court concluded that the photogrammetry would create such a reasonable doubt for a juror. The new testimony about the robber not matching Avery’s height could lend more credence to his alibis and his assertion that his confession wasn’t truthful, the court said.
“If the jury believes the new evidence from Avery’s expert,” the court said, “then it would conclude that Avery could not be the man in the video.”
Findley said Avery was paroled in 2007 and is currently working in construction.