Avery
Bill finds legislative support
By
Denise G. Callahan
Special to Wisconsin Law Journal
 |
“It’s
not all that everybody wanted, but legislation rarely is. But it is a good step
in the right direction.” Keith
FIndley,
UW Law School,
Innocence Project |
The
Avery Bill is receiving praise and support. It is a compilation of criminal justice
reforms, though some are proclaiming its virtues louder than others.
"It's
not all that everybody wanted, but legislation rarely is," said Keith Findley,
University of Wisconsin Law School professor and co-director of the Innocence
Project. "But it is a good step in the right direction."
Findley
was a member of the Avery Task Force, a diverse group of bipartisan lawmakers,
criminal justice experts and others from around the state, charged with devising
recommendations to improve the state's criminal justice system to lessen the chance
that innocent people are imprisoned.
The
task force's namesake, Steven Avery was freed in 2003 after DNA testing proved
he had not brutally raped and beaten a woman on a beach in Manitowoc County. Avery
spent 18 years in prison.
Rep.
Mark Gundrum (New Berlin-R), chairman of the Wisconsin Assembly Judiciary Committee,
impaneled the task force and codified the fruits of their labors into a sweeping
package of reforms that by all accounts will fast-track its way into the statute
books once the Legislature reconvenes in the fall. The governor supports the bill
and 25 people signed on as sponsors the very day the package was presented.
Provisions
Key
provisions of the bill include:
- Electronic
recording of both juvenile and adult felony suspect interrogations.
- Required
written police policies governing the eyewitness identification procedures.
- Priority
DNA testing in post-conviction cases.
- New
provisions for retention of evidence that contains DNA.
The
recording provisions in the bill are actually an outgrowth of the recent Wisconsin
Supreme Court decision in State v. Jerrell. The court exercised its supervisory
authority to require that electronic recordings be made during juvenile interrogations
that are held within the confines of a detention facility and where feasible in
offsite locations.
The
proposed bill extends this rule to the adult felony arena but doesn't mandate
the use of recording devises when suspects are questioned outside police stations
and other holding facilities. The law does, however, provide for the use of a
jury instruction if no recording was made — with a few exceptions —
that tells the jury it is the state's policy to record interrogations and allows
them to ruminate on why no recording was made.
Waring
Fincke, immediate past president of the Wisconsin Association of Criminal Defense
Lawyers, said the bill is better than nothing, but he would rather have seen a
little tougher stance on certain things. He'd prefer to see fewer exceptions offered
to cops to avoid recording interrogations. And rather than a jury instruction,
he would have liked the bill to suppress conversations without electronic back-up.
"Police
are going to understand very quickly that if they interrogate down at the station
they've got to turn all this equipment on, but if they ask the questions out on
the street, they can say 'oh gee, I didn't have batteries in my tape recorder',"
he said. "Maybe I'm being a little too jaded in my view, but cops have gotten
away for far too long with coercing confessions rather than going out and doing
real investigations. It's much easier to convict somebody (with statements) out
of their own mouth, than put together an investigation that proves somebody guilty
beyond reasonable doubt. Hopefully this bill will make them go back to doing investigations."
Process
Involved Compromise
Others
would have liked mandated recording too, but as Findley said when you're talking
about legislation, you can rarely please everyone completely. Findley went on
to say that the task force took a page from books in other jurisdictions where
recorded questioning is already commonplace and the recordings actually favor
the cops rather than the criminals.
"In
an ideal world we would require recording in the field as well," Findley
said. "But the practicalities of it made that an untenable thing to include
in this legislation. Is there some concern that they will just start interrogating
more in the field? It's a possibility but I don't think that's going to happen."
Scott
L. Horne, president of the Wisconsin District Attorney's Association, also served
on the task force. Horne said since memories fade and the questions asked and
answers given can sometimes be misremembered tapes are tops in his book.
"It
allows, from our perspective, the jury to see the natural environment, see the
way the defendant appears when responding to questions from the officer,"
he said.
"Does
he look down and avoid eye contact or does he look the officer in the eye and
speak directly and clearly. There is a lot of non-verbal information that would
be helpful for the jury to have. I think it's something that will assist juries."
It
seems both sides of the criminal arena would like for this practice to be adopted
— for their own reasons — and Gundrum's bill assists that endeavor by
funding a grant program to help law enforcement agencies purchase recording equipment
with a one-percent increase in the penalty surcharge.
Eyewitness
ID
The
other part of the proposal people are saying could have been stronger was the
eyewitness protocols. No particular procedures are mandated, but the task force
has published some best practices for police to ponder.
Using
a neutral administrator — one who knows nothing about the suspect —
to administer the photo array or line-up would obviously reduce the chances that
non-verbal cues might cue the witness to incorrectly identify someone. But to
Horne the more important recommendation was the use of sequential rather than
simultaneous presentation of suspects.
"Common
sense would indicate that a single array of six photographs implies that the guilty
person may well be among the six and the tendency is to pick out the best of the
six as opposed to reaching an independent judgment on each of the photographs,"
he said. "We are all in the business of doing justice and we are trying to
get to the truth. If current research shows us there is a better way of doing
business we ought to be doing it."
And
research is the reason Gundrum gave for not mandating the particulars in the eyewitness
area.
"We
only know right now what we believe to be the best policies," said Gundrum,
who chaired the task force. "Ten years from now, science could show us there
is a better way of doing things and we wouldn't want that stuck in the statutes,
that they must do it in a way that is less than perfect if better ways develop."
He
also said since the attorney general's office has already latched onto the model
policies proffered and is implementing them its pretty safe to say law men are
willing to embrace — rather than ignore — innovations that improve.
Playing
the devil's advocate however, Marquette University Law Professor Daniel Blinka
said these are some solutions to the problem of convicting the innocent that just
don't lend themselves to a legislative fix.
"A
lot of these are good ideas, particularly when you look at the horrific breakdown
of good investigative techniques. In the Avery case, something must be done,"
he said. "But I think this comes down to is heightening the training and
professionalization of police and prosecutors. Particularly making sure the cops
understand that just because they've fixed their sights on one subject, doesn't
mean you abandon objectivity and you don't keep an open mind as to the person's
possible innocence."
The
bill and its companion in the Senate currently have a total of 29 co-sponsors
combined.
