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State v. Brian K. Avery, 2011 WI App 148, rev. granted 2/23/12

on review of published opinion; for Avery: Keith A. Findley, Tricia J. Bushnell; case activity; prior post

Newly Discovered Evidence / Interest of Justice – New Forensic Method

Issues (composed by On Point): 

1. Whether new scientific photogrammetric analyses by expert witnesses, indicating that the suspect in video surveillance was shorter than Avery, entitles him to a new trial on the ground of newly discovered evidence.

2. Whether these analyses alternatively warrant new trial in the interest of justice.

3. Whether, in reviewing competing expert opinions adduced on postconviction motion, the trial court invades the jury’s province by denying relief on the theory that one expert is more credible than another.

Neither the petition for review nor response is posted by the court, so a bit of guess-work is required to identify the issues precisely. That said, this is a potentially significant case for litigating postconviction exoneration claims based on non-DNA evidence. If you want to track the case more closely, periodically check the “case activity” link above for the parties’ supreme court briefs. (The interested reader might also want to check this newly published article: D. Michael Risinger, “Innocents Convicted: An Empirically Justified Wrongful Conviction Rate,” Journal of Criminal Law and Criminology, Vol. 97, No. 3, 2007 (using DNA analysis, “a minimum factually wrongful conviction rate for capital rape-murder in the 1980’s emerges: 3.3% …. The article then goes on to analyze the implications of a factual error rate of 3.3%-5% for both those who currently claim errors are extremely rare, and those who claim they are extremely common. Extension of the 3.3%-5% to other capital and non-capital categories of crime is discussed, and standards of moral duty to support system reform in the light of such error rates is considered at length.”).)

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