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Newly Discovered Evidence: New Forensic Method, Photogrammetric Analysis; Interest-of-Justice Review

State v. Brian K. Avery, 2011 WI App 148 (recommended for publication), supreme court review granted, 2/23/12; for Avery: Keith A. Findley; case activity; prior 974.06 appeal: 2008AP500-CR; direct appeal: 1997AP317

Newly Discovered Evidence – New Forensic  Method – Photogrammetric Analysis 

Expert photogrammetric opinion, derived from video enhancement technology (“VISAR”) not commercially available until after Avery’s trial, that Avery’s height was less than that of the suspect on a security tape of the crime, satisfied the test for newly discovered evidence and therefore requires a new trial. Avery, according to booking records, was 6’3″; at the § 974.06 postconviction hearing the defense expert testified that the suspect on the tape identified at trial as Avery was under 6′, while the State’s expert could neither conclude nor rule out the suspect being as tall as 6’3″. The trial court concluded that the State’s postconviction evidence represented “an attack on the reliability of” the defense expert, such that the latter was “not reliable enough” “to make a difference” in the result. The court of appeals reverses:

¶34      In the case at bar, the trial court clearly weighed the expert testimony on its own.[14]  It found that the new evidence was “simply not going to make a difference” in a new trial because “[i]t’s not like D.N.A. evidence … [i]t’s not like a retraction of a confession … [i]t’s not like when somebody else confesses to a crime.”[15]  In making this finding, the trial court applied the wrong standard and erroneously exercised its discretion.  See State v. Plude, 2008 WI 58, ¶31, 310 Wis. 2d 28, 750 N.W.2d 42.  A trial court is to determine only whether there is a reasonable probability that the new credible testimony would create a reasonable doubt as to the defendant’s guilt.  See Edmunds, 308 Wis. 2d 374, ¶19.  It is not the function of the trial court in a motion for a new trial to weigh competing credible evidence.  Id., ¶18.

¶35      In applying the test that the trial court should have used, we conclude that if a jury believes the height of the video suspect as put forth by expert analysis of new video enhancement technology, it is reasonably probable that a reasonable doubt as to Avery’s guilt would exist. The alibi testimony from friends, family members and former coaches, which tends to indicate that Avery was not involved in either robbery, could become more persuasive when the video suspect’s height is considered.  The failure of any of the robbery victims to identify Avery in the physical line up conducted within a day or two of the robberies takes on added significance in the context of the evidence that the video suspect is inches shorter than Avery, as does Avery’s initial denial of his involvement in either robbery.  As to Avery’s confession, it is reasonably probable that a jury would have a reasonable doubt as to the truth of the confession if it believes that the suspect on the video is shorter than Avery.  All of the trial evidence, combined with the new evidence from two experts, each of whom explained their methods of analysis and concluded that the video suspect is several inches shorter than Avery, establishes a reasonable probability that a jury would have a reasonable doubt as to Avery’s guilt.

¶36      Simply put, if the jury believes the new evidence from Avery’s expert, then it would conclude that Avery could not be the man in the video.  This new evidence does not merely “chip away” at the State’s case.  The outcome of a trial including the new evidence will probably be different because if the jury believes this evidence, then it would conclude that Avery is not the man in the video, and he could not be one of the robbers.

A procedural point, left unsaid by the court: newly discovered evidence may establish a violation of due process hence support motion for new trial under § 974.06, State v. (Steven) Avery, 213 Wis. 2d 228, 234, 570 N.W.2d 573 (Ct. App. 1997); State v.Bembenek, 140 Wis.2d 248, 252, 409 N.W.2d 432, 434 (Ct. App. 1987). That these are two of the most notorious cases in recent appellate history – the former appellant demonstratively innocent, the latter at least arguably so, yet both denied appellate relief – is incidental to the present point:  § 974.06 allows relief on a NDE theory.

The ratio decidendi is this: on a NDE motion, the trial court lacks authority to weigh competing, credible evidence; instead, the question is an objective one of whether the new evidence establishes a reasonable probability of a different result, ¶32. Here, the postconviction court erred by interposing its own view of the weight of the defense expert testimony, rather than determining how a reasonable jury likely would have reacted to it. See ¶1 (“the trial court erroneously usurped the jury’s function when it weighed credible testimony from the competing experts”). Presumably, a judge could make a credibility determination even with respect to expert testimony (e.g., the expert dissembled in some fashion) but that is not what happened here. (“The trial court did not find either expert incredible,” ¶5.) In short, the defense presented newly developed, credible expert testimony that Avery was too tall to have been the person identified on the taped event, while the State’s rebuttal was at worst neutral.

Why, then, should the grant of relief be at all controversial? In the dissent’s view, the evidence against Avery was “strong,” consisting of: eyewitness identifications and Avery’s “detailed confession” and related consciousness of guilt, ¶53; and, Avery presented mere “opinion” expert testimony, as opposed to “unrebutted DNA evidence that directly contradicted a piece of the State’s trial evidence,” ¶54. Put aside the abstract point that expert testimony is necessarily “opinion,” whether expert photogrammetric or expert DNA testimony. Consider, instead, the increasingly documented phenomenon of false confessions and unreliable identifications. As to the former, the majority cites Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1051 (2010) (“Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders.  As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations.”), ¶25 n. 11. And as for eyewitness testimony: “Considerable research has established that eyewitness identification is fraught with problems of reliability and trustworthiness,” ¶21 n. 9. (Consult Avery’s excellent briefs, as well, for further support.) The point, of course, isn’t that confessions and identifications aren’t important pieces of the evidentiary puzzle, just that it is odd to dismiss expert testimony as mere opinion even if it would make the “confession” and identification impossible to believe. Amanda Knox also “confessed.” Steven Avery may not have confessed, but on the basis of an eyewitness identification we now know was faulty, the court of appeals had no difficulty dismissing the significance of his 16 alibi witnesses, and his postconviction DNA evidence, 213 Wis. 2d at 245-46. Brian Avery at trial recanted his supposed confession, which he testified was due to coercion, and he presented a succession of exceptionally reputable alibi witnesses, ¶18. The eyewitness testimony was suspect, ¶21 n. 9. Throw into the mix an expert who would testify that Avery could not have been the perpetrator: it’s a clear case for relief.

Relief in Interest of Justice 

Avery is alternatively entitled to new trial in the interest of justice, State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990), distinguished:

 

¶44      Unlike the situation in Allen where the request involved a new theory (moving the burden of proof) based on existing facts (jury instructions to which no objection was made), we have a request under Wis. Stat. § 752.35 based on new evidence which is directly material to an issue that was never waived, but rather has been vigorously pursued.  Avery vigorously litigated the question of his involvement in the robberies during his trial.

¶45      The jury was precluded from hearing photogrammerty evidence because, at the time of trial, the specific technique to sufficiently enhance the video surveillance evidence did not exist.  We conclude, as a result, that the real controversy of whether Avery was actually involved in the robberies was not fully tried.

 

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