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State justices to consider Innocence Project appeal

State justices to consider Innocence Project appeal

Defendant seeks review of new evidence in 1994 armed robbery case

The Wisconsin Supreme Court will hear oral arguments this fall in an Innocence Project appeal, State v. Brian K. Avery, to consider whether new photogrammetry and video enhancement evidence can be presented to a Wisconsin court more than 16 years after trial.

A grainy videotape originally helped to convict a college-bound 19-year-old defendant of armed robbery.

Among other issues, the court could decide whether newly discovered evidence and “interests of justice” collateral appeals might be taken out of the hands of the appellate courts entirely.

Amicus curiae briefs have been filed by the Wisconsin Association of Criminal Defense Lawyers, The Innocence Network, and an international group of academics and forensic scientists.

In brief

Case: State v. Brian K. Avery

Oral arguments: scheduled for Oct. 5

Case history

In the early evening of July 7, 1994, four men forcibly robbed Malone’s Fine Foods in the Milwaukee area. The following day, a second nearby grocery store, Atari Foods, also was robbed, this time by a group of five men.

Both robberies were witnessed by more than a dozen bystanders.

The two stores had security video cameras, which recorded at least part of both crimes.

A 14-year-old girl from the area witnessed the first crime at Malone’s Foods, telling police that she believed the suspects were “boys from the neighborhood.” The police say that she identified each of the four defendants by their street names, including Avery, although she later testified at trial that in fact Avery was not the boy she saw at Malone’s Fine Foods.

Within two days, Avery was arrested. Just after midnight, he was brought to the police station for questioning. After waiving his Miranda rights, Avery initially denied any involvement in the two robberies.

Avery, a 19-year-old high school graduate and junior college bound basketball-scholarship recipient, claimed at the time of the first robbery he was watching a basketball tournament at an area high school with friends and coaches, at least a mile and a half from the scene.

Avery said he was at home during the second robbery, talking on the phone with a female friend for almost two hours.

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He was interrogated by Milwaukee police July 10, 1994, for around 12 hours during a 16-hour stretch. The state admits Avery was subjected to tough questioning and deceptive interrogation tactics that are lawful, but sometimes used by law enforcement.

Ultimately, local police say Avery confessed to both crimes and signed a basic statement of his confession. Avery even apologized to his mother, according to information in the state’s brief.

Although Avery later claimed at trial the confession was coerced, he was further identified by another eyewitness at Atari Foods, and he was convicted of two counts of armed robbery and sentenced to 30 years.

New trial request

In 2007, Avery brought a post-conviction motion for a new trial under Wis. Stat. 974.06. The circuit court denied the motion without hearing, and Avery asked the appellate court for relief.

The appellate court sent the case back to the circuit court, ordering a full hearing to determine whether the case should be retried.

At that hearing, Avery’s expert testified about newly available video enhancement and photogrammetry evidence, which lends measurement and size to objects on videotape and pictures by size comparisons with other known objects. Both sides admitted the technology only was available after the 1994 trial.

Avery had five new witnesses testify, including his college coach and a friend who allegedly were with Avery just before the first robbery.

The crux of the 6-foot-3-inch defendant’s claim, in part, is he could not be the person on the videotape taken at Malone’s Fine Foods. The person on the tape was about 5’9” or shorter, said the defense forensic expert.

After the hearing, the circuit court again denied Avery’s motion, and the defendant again asked the court of appeals to review the circuit court’s decision. Stating that Avery was entitled to a new trial both because of newly discovered evidence and in the interests of justice, the appellate court ordered a new trial.

The state appealed this decision to the Wisconsin Supreme Court.

Considering new evidence

In order to consider newly discovered evidence, Wis. Stat. 974.06 requires that the following four questions be answered in the affirmative by clear and convincing evidence: 1) that the evidence was discovered after trial; 2) that the moving party was not negligent in seeking to discover the evidence; 3) the new evidence is material; and 4) the new testimony is not merely cumulative.

Additionally, the moving party must show that there is a “reasonable probability” that a jury would reach a different result at a new trial if the evidence were presented.

The state’s brief essentially can be narrowed down to four issues.

First, that the standard applied to whether a different outcome would be reached by a jury was “outcome determinative,” and that the circuit court correctly applied this test.

Second, that the circuit court’s hearing and assessment of evidence on retrial was satisfactory and that the defense’s new evidence was not sufficiently reliable to overcome the substantial additional evidence to convict that could be brought at trial.

Third, that the Court of Appeals only had the authority to review the denial of the petition itself on its face, and not rule on whether the underlying “real controversy” adequately was heard at the original trial.

Lastly, the state suggests that, because newly discovered evidence cases can be brought at any time, “they strain the need for finality in criminal cases” and only should be considered in “extraordinary circumstances.”

The state in part relies upon a 1984 U.S. Supreme Court case, Strickland v. Washington, to support the idea that the “outcome determinative” standard correctly was applied by the circuit court to assess the new evidence.

However, by making the final decision as to the proper weight new evidence should be given, Avery’s counsel contends the circuit court overstepped its authority.

“The role of the circuit court is not to retry the case itself,” they noted, “but merely to decide whether the new evidence created a “reasonable probability” that the jury would find reasonable doubt.


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