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Newly discovered evidence – reasonable probability jury would have reasonable doubt about guilt; new trial in interest of justice

State v. Brian Avery, 2013 WI 13 (Wis. S. Ct. 1/30/13), reversing 2011 WI App 148; case activity

The supreme court affirms the trial court’s denial of Brian Avery’s Wis. Stat. § 974.06 motion for a new trial based on newly discovered evidence, concluding there isn’t a reasonable probability a jury would have a reasonable doubt about Avery’s guilt. The court also holds Avery was not entitled to a new trial in the interest of justice.

Avery was convicted by a jury of two armed robberies. (¶4).  He was identified by eyewitnesses, though one recanted her identification at trial. (¶5). (The court of appeals noted a number of other eyewitnesses failed to identify Avery in lineups conducted after the incidents. Avery, 2011 WI App 148, ¶21.) The jury also saw video of one of the robberies taken from a security camera, though the state did not rely on the video for identification because of its poor quality. (¶7). Avery initially denied involvement but later confessed; he recanted the confession at trial, saying it was coerced. (¶¶6, 9). He also presented alibi testimony from friends, family, and basketball coaches. (¶8).

After an unsuccessful appeal, Avery filed a § 974.06 motion asking for a new trial based on newly discovered evidence or, alternatively, in the interest of justice. The trial court denied Avery’s motion, but the court of appeals reversed. The supreme court now reverses the court of appeals.

Newly discovered evidence – reasonable probability jury would have reasonable doubt about guilt

The newly discovered evidence was expert photogrammetric evaluation of the video shown at trial using video enhancement technology not commercially available until after Avery’s trial. (¶12). At the postconviction hearing a defense expert opined that Avery was too tall to be the suspect on the video. (¶14). The state presented an expert who disputed Avery’s expert’s opinion but could neither conclude nor rule out the suspect being as tall as Avery. (¶15).

The court of appeals held the trial court erred by weighing the experts and finding Avery’s expert unreliable, citing the trial court’s conclusion 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. Avery, 2011 WI App 148,  ¶¶7, 31, 34 . The supreme court concludes otherwise:

¶33      We disagree with the court of appeals’ determination that “[b]y concluding that [Avery’s expert’s] opinions were ‘not reliable enough’ to entitle Avery to a new trial, the trial court gave one opinion from a credible witness greater weight than a competing opinion from a different credible witness.” Avery, 337 Wis. 2d 560, ¶31. Instead, we conclude that the circuit court did not merely weigh the credibility of the experts. See id., ¶51 (Brennan, J., dissenting). The circuit court did not conclude that the new evidence was less credible than the old evidence or that one expert was more credible than another. See Edmunds, 308 Wis. 2d 374, ¶18; McCallum, 208 Wis. 2d at 474-75. In fact, a circuit court must consider the new evidence in order to properly determine whether the newly discovered evidence warrants a new trial. In so doing, the circuit court here noted that the photogrammetry evidence was different than DNA or a third-party confession. Indeed, unlike DNA or a third-party confession, the photogrammetry evidence here depends upon dozens of different variables. A different or incorrect assumption on even one variable could lead to a different result.

After summarizing the evidence here and in McCallum, Edmunds, and State v. Plude, 2008 WI 58, 310 Wis. 2d 28, 750 N.W.2d 42, the court concludes the state’s evidence in this case was far stronger than the state’s evidence in those cases and that the newly discovered evidence in those cases “struck at the heart of the State’s evidence at trial.” (¶36). Thus, the photogrammetry evidence does not, in the court’s view, create a reasonable probability a jury would have a reasonable doubt about Avery’s guilt.

The supreme court’s decision does not alter the existing standard concerning newly discovered evidence, and in fact reaffirms that the trial court must not weigh competing, credible evidence, but instead objectively decide whether the new evidence establishes a reasonable probability of a different result. (¶25). Moreover, the court explicitly declines to decide the parties’ dispute about the meaning of the “reasonable probability” standard, finding that Avery is not entitled to a new trial even under the standard he advances (whether the new evidence undermines confidence in the outcome). (¶32 n.16). Because the supreme court applies the same law to the same facts but disagrees with the court of appeals, it’s hard to discern a principled basis for the supreme court’s different conclusion.

The supreme court clearly views the trial court’s decision differently than the court of appeals, which, as noted above, concluded the trial 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. The supreme court pays less attention to the language of the trial court’s cited by the court of appeals (Avery, 2011 WI App 148,  ¶7), which reads like the trial court was making an improper credibility determination as between the two experts. In addition, the comparison of the photogrammetry evidence to DNA elides the fact that all expert opinion testimony—even about DNA—is open to attack on its premises and procedures, not to mention its relevance and probative value. And, for the reasons outlined in our post on the court of appeals’ decision, saying the state’s case was strong ignores the increasingly well-documented phenomenon of false confessions and, with respect to eyewitness testimony, considerable research that has established that eyewitness identification is fraught with problems of reliability and trustworthiness. Thus, overvaluing the state’s evidence is particularly jarring when the photogrammetry evaluation of a video showing the perpetrator would, if believed by a jury, make the “confession” and identification that much more difficult—if not impossibleto believe, thus “striking at the heart” of the state’s evidence.

New trial in the interest of justice — real controversy not fully tried

The supreme court also concludes the newly discovered evidence does not support a new trial in the interest of justice because the controversy was fully tried even though the jury did not hear the photogrammetry evidence. The court, which is critical of the court of appeals for not properly analyzing why this is an “exceptional” case warranting discretionary reversal (¶55 n.19), has a lengthy discussion about State v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996), and State v. Armstrong2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98, aimed to show why those cases were “exceptional” and this one is not. (¶¶41-53).

The court’s discussion of Hicks and Armstrong is highly fact specific in nature; a summary will not be attempted here, other than to say the court makes much of the state’s “assertive and repetitive” reference to specific evidence in those cases compared to the lack of such reference to the video in this case. (¶¶56, 58). But the real controversy in all of these cases was the identity of the perpetrator, and the new evidence in all the cases also goes directly to identity. Whether the video was assertively and repetitively relied on by the prosecutor is beside the point, which is that new analysis of a video showing the actual perpetrator of the crime contradicts the identity evidence offered at trial. That shows the real controversy wasn’t fully tried.

Finally, a note for appellate practitioners: The supreme court rejects the state’s argument that the court of appeals does not have the power to order a new trial in the interest of justice in an appeal from an order denying a postconviction motion under Wis. Stat. § 974.06. The majority opinion concludes that both the supreme court and the court of appeals have both statutory and inherent power to order a new trial in the interest of justice in an appeal in § 974.06 proceeding. (¶38 n.17). Justice Prosser’s concurrence disagrees with that conclusion, but no other justice joined his concurrence.

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