MADISON, Wis. (AP) — A divided Wisconsin Supreme Court on Wednesday overturned an appeals court ruling that granted a new trial to a man convicted of robbing two Milwaukee grocery stores nearly 20 years ago.
Brian K. Avery contends that digital technology that wasn’t available when he was tried for the robberies shows that he’s much too tall to be the suspect in a surveillance video that was used to help convict him.
In a 5-2 opinion written by Justice Annette Ziegler, the Supreme Court said there is not a reasonable probability that a jury would have a reasonable doubt as to Avery’s guilt, even when considering the new evidence.
The 1st District Court of Appeals ruled in 2011 that the real issue in Avery’s case — namely, whether he was one of the robbers — hasn’t been fully tried. It granted him a new trial in the interest of justice.
Avery argued in his appeal that digital enhancements that weren’t available until 1998 — years after he was convicted — 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.
The Supreme Court said Wednesday that the appeals court improperly analyzed whether the case was exceptional enough to warrant a new trial.
“Avery is not entitled to a new trial in the interest of justice because the controversy was fully tried even though the jury did not hear the photogrammetry evidence,” Ziegler wrote for the majority.
Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson dissented, saying the appeals court correctly determined that the case was exceptional enough to warrant a new trial.
“The problem with the majority’s analysis is that what constitutes an ‘exceptional’ case is in the eye of the beholder,” Bradley wrote in the dissent. “What the majority is really doing is substituting its own evaluation of whether this is such an exceptional case in place of the court of appeals’ reasoned determination that this case warrants a new trial in the interest of justice.”
Avery’s attorney, Wisconsin Innocence Project co-director Keith Findley, said he was deeply disappointed by the ruling, which he said amounted to judicial activism by the court’s conservative majority.
“The court shows such insensitivity to the realty of wrongful convictions,” Findley said. “It’s really puzzling and troubling that they would go so far out of their way into case law where it doesn’t fit, and they would do it in a case where there are serious doubts about the actual guilt or innocence of this person.”
Dana Brueck, a spokeswoman for the state Justice Department, which handles appeals on behalf of local prosecutors, said the Supreme Court made the right call.
“The state presented overwhelming evidence of Avery’s guilt in 1995,” Brueck wrote in an email to The Associated Press. “No reason exists to overturn the jury’s judgment in 2013.”
Avery was 19 years old in 1994 when detectives accused him of being part of a gang who robbed the stores over two days.
Avery had alibis for both robberies. On the night of the first one, Avery 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.
During the second robbery Avery said he was at home and pointed to phone records that showed he called a friend from the house while the robbery was taking place. His cousin also testified that he ate lunch with Avery at the house at the same time.
Avery confessed to police that he was involved in the robberies, but at the trial he recanted and said the confession was coerced.
A jury convicted him of two counts of armed robbery in 1995 and he was sentenced to 30 years in prison. He was paroled in 2007.