Innocence Project Wins 2nd Exoneration

Posted: 2003-09-11 11:22:00

A Manitowoc County judge ruled Wednesday (September 10, 2003) that DNA evidence conclusively proves the innocence of Steven Avery, a man convicted in 1985 of the brutal attack of a woman jogging on a beach near Two Rivers, Wis.

Avery was released from the Stanley Prison in northwestern Wisconsin on the morning of Thursday, Sept. 11, after serving 18 years of a 32-year sentence. Avery's is the first exoneration under Wisconsin's new post-conviction DNA-testing statute, which was signed into law in 2001. His case is the 137th DNA exoneration nationwide and the third DNA exoneration in Wisconsin overall.

During Avery's 1985 trial in Manitowoc County Circuit Court, 16 witnesses, including Avery's family and friends, a cement contractor, and clerks at Shopko, along with store receipts from Shopko, corroborated Avery's description of what he had done that day. Nevertheless, he was convicted based almost entirely on the eyewitness identification testimony of a single witness.

Avery has maintained his innocence throughout the last 18 years.

For the last two years, law students and their supervising attorneys worked diligently on Avery's case as part of their studies at the Wisconsin Innocence Project. The Innocence Project is a program within the Frank J. Remington Center at the University of Wisconsin Law School.

Eventually, they obtained a court order to allow DNA testing of hairs left at the scene of the crime. The tests, conducted by the Wisconsin State Crime Laboratory, proved that Avery was not the perpetrator. They also revealed that the DNA matched that of another man who is serving a 60-year sentence for a similar crime committed after the 1985 assault for which Avery was convicted.

Keith Findley, professor of law and lead attorney on the case, worked with John Pray, professor of law, and former Innocence Project attorney Wendy Paul.

This case highlights, once again, that the criminal justice system in this country, and in this state, is a flawed system, capable of making grievous mistakes, Findley says. "This case should serve as a call to this state to examine seriously the causes of this error, and other errors in the criminal justice system, to see if we can learn from this mistake, to minimize the risks that such errors will occur again."

Students from the Innocence Project worked with current Manitowoc County District Attorney Mark Rohrer, Assistant District Attorney Mike Griesbach, and Judge Fred Hazlewood, who presided over Avery's case in 1985, to obtain the post-conviction DNA testing and eventual release of Avery.

Avery, now 43 years old, lived in Mishicot, Wis., at the time of his arrest. He has five children, including twin boys who were 6 days old when he was arrested.

"Steven Avery's long-awaited release is a positive event for Avery and the Wisconsin criminal justice system," Findley says. "However, it is also a tragic story of wrongful incarceration. Due to failures in the criminal justice system, Avery lost 18 years of his life that he will never be able to recover."

Though Avery is the first individual in Wisconsin to be released under Wisconsin's new DNA statute, he is the third who has had his conviction vacated based on the work of the law students at the Wisconsin Innocence Project.

In 2001, a Texas inmate serving a life sentence for murder, Christopher Ochoa, was exonerated after serving 12 years when DNA testing proved that he and a codefendant were innocent of the murder, and another man was the actual perpetrator.

More recently, the Wisconsin Innocence Project was successful in convincing the Court of Appeals in August to order a new trial for Evan Zimmerman of Luck, Wis., who was convicted of the 2000 murder of Kathy Thompson in Eau Claire County.

The University of Wisconsin Law School's Innocence Project was founded in 1998, and is directed by Findley and Pray. Approximately 20 students participate in the program each year.


STATEMENT OF KEITH A. FINDLEY, Codirector, Wisconsin Innocence Project

Clinical Associate Professor

University of Wisconsin Law School

My name is Keith Findley. John Pray and I are codirectors of the Wisconsin Innocence Project, a clinical project of the Frank J. Remington Center at the University of Wisconsin Law School. We, along with Wendy Paul, who was the lead attorney on this case until she took a job with the Public Defender's Office in Racine, represent Steven Avery. We have been assisted by UW law students enrolled in our program.

Over 18 years ago, on July 29, 1985, Steven Avery spent the day with his family, first shopping in the morning, then helping to pour concrete at his father's home, then buying paint at a Shopko in Green Bay with his wife and five children in the late afternoon and early evening.

Late that same afternoon, a woman was brutally attacked, sexually assaulted, and nearly killed on a beach in Manitowoc County.

Sixteen witnesses, including Steven's family and friends, a cement contractor, and clerks at Shopko, along with store receipts from Shopko, corroborated Steven's explanation of what he had done that day. But the state didn't believe Steven or his 16 alibi witnesses. He was charged with and convicted of the brutal attack on that beach in Manitowoc County, based almost entirely on eyewitness identification testimony of a single witness.

Today, DNA testing has proved that Steven and his witnesses were telling the truth, that he was not at that beach on July 29, 1985, that he had nothing to do with this horrible crime, and that the eyewitness was simply mistaken, as eyewitnesses too often are. And the DNA now tells us more than that as well. It also identifies the true perpetrator of this crime, a man currently serving a 60-year sentence in prison for sexual assaults committed after this one. The same DNA sample that conclusively excluded Steven Avery, matched this other man, whose DNA profile was in the state database, and who has a history of sexual assaults, including assaults he committed after the assault in this case while Mr. Avery sat in prison.

Steven and his family are overjoyed that this day of vindication has finally come. I have asked them how they feel about all this, and the overriding response now is just happiness that this chapter of this long nightmare is finally coming to an end.

But in that joy we should not lose sight of the human catastrophe that has befallen this man and his family, as well as the other innocent victims in this case. When Steven was hauled off to prison for a crime he did not commit, he lost virtually everything. He had a wife and five children, a job, and a supportive extended family. He was ripped away from all of that, and stripped of all his dignity. His marriage was ruined, and his wife divorced him. His children are now all grown. Two of his children, twins, were less than a week old when he was imprisoned. They are now 18. He never had a chance to know those children, let alone share in the joys of parenting.

There are other victims of this mistake as well. As is often the case when the state convicts an innocent person, not only was an innocent man imprisoned, but the real perpetrator remained at large, free to commit other offenses. And the real perpetrator did just that, committing at least two other brutal sexual assaults after this one. If the system had not focused on the wrong man in this case, the innocent women in those other cases likely would not have been victimized as well.

Finally, this error means that the victim in this case, the woman brutally attacked on that Manitowoc County beach, must suffer again. She was and remains a surviving victim of a horrible assault, an offense that, unbeknownst to her, has remained unsolved for 18 years.

This case highlights, once again, that the criminal justice system in this country, and in this state, is a flawed system, capable of making grievous mistakes. This case should serve as a call to this state to examine seriously the causes of this error, and other errors in the criminal justice system, to see if we can learn from this mistake, to minimize the risks that such errors will occur again.

In almost every other aspect of life in this society, when we suffer a catastrophe of these proportions, when a plane falls from the sky, when a train derails, when food or water is contaminated, or when a power grid shuts down, we conduct a serious inquiry to identify the errors that produced the catastrophe and to develop corrective measures. It is time we take our catastrophes in the criminal justice system as seriously. Canada has shown us the way. When Canada has confronted wrongful convictions, the government has responded with formal governmental inquiries that undertake searching investigations to determine where errors were made, and to make extensive, formal recommendations for reform in the criminal justice system. We now call on officials in this state to undertake a similar inquiry here, so that we can learn from this tragedy, and make sure that we adopt practices designed to enhance our ability to apprehend and convict the guilty, and not the innocent.

More broadly, we in this state need to create a formal commission to study wrongful convictions, to draw on the lessons not only from this case, but the other cases of wrongful conviction that have occurred nationwide. Mr. Avery is the 137th person in this nation exonerated by DNA evidence. He is the third in Wisconsin, and the first since Wisconsin adopted a statute that provides a right to post-conviction DNA testing. Those 137 cases provide a learning opportunity, for they provide a group of cases in which we know the system has failed, that a mistake has been made. We need to seize that learning opportunity by creating a commission to study all of these cases and to make recommendations for reforms based upon what those cases teach us. The Criminal Law Section of the State Bar, along with Wisconsin's two law schools, have been working on doing just that, and we hope to invite the Department of Justice and the judicial branch to join us in that endeavor.

Today's exoneration provides some measure of justice, albeit justice much belated for Mr. Avery. But do not take Mr. Avery's release today as an indication that the system has worked. The system did not work. The system failed. Mr. Avery was convicted by a jury of a crime he did not commit. He spent 18 years in prison for a crime he did not commit. His conviction, for a crime he did not commit, was affirmed twice by appellate courts in this state. The truth-finding mechanism failed.

Yet in some senses Mr. Avery is a very lucky man today. He is lucky that the perpetrator of this crime left behind biological evidence. In most crimes, there is no biological evidence that can be used later to prove innocence. He is lucky that in 2001 the legislature wisely passed a statute providing a right to post-conviction DNA testing when it might establish innocence. He is lucky that the state preserved the biological evidence so that it remained to be tested. He is lucky that Wisconsin has an Innocence Project that was available to help him, and that teams of University of Wisconsin law students worked on his case to help him prove his innocence. He is lucky that the Wisconsin Crime Laboratory ably conducted the DNA tests that have set him free. And he is lucky that the current district attorney in Manitowoc County has been concerned about this injustice, and has acted as swiftly as possible to end Mr. Avery's wrongful imprisonment. Manitowoc County District Attorney Mark Rohrer and Assistant District Attorney Mike Griesbach have been honorable in their efforts to resolve this manner swiftly and appropriately.

Unfortunately, however, even in these post-conviction proceedings the system has not always responded as one would hope. When we filed the motion for DNA testing in this case in December 2001, the Manitowoc County District Attorney, who is no longer in office, resisted our request for this testing. Too often, in the interest of finality, prosecutors in some jurisdictions continue to resist examining evidence that helps determine the truth. This case reminds us, once again, that finality can never be allowed to trump justice.

This case also highlights that the system is flawed in another respect, even at this stage in the proceedings, when all agree that an innocent man has been wrongly imprisoned for 18 long years. Under Wisconsin law, Mr. Avery is now entitled to seek compensation for the wrongful imprisonment he has suffered. But by statute, the maximum amount the state Claims Board can award him for those lost 18 years is ,000 for each year of wrongful imprisonment, up to a maximum of ,000. No reasonable person would consider it a fair deal to receive ,000 for 18 years of imprisonment and all its attendant stigma and loss. That sum is woefully inadequate; it is disgraceful. We can, and must, do better for our citizens whom we have so seriously wronged. Under current law, the only way that Mr. Avery can be awarded more than ,000 is by legislative action. That law must change.

Finally, on behalf of Mr. Avery, I want to acknowledge and thank those who have been involved in this case. In addition to my colleagues John Pray and Wendy Paul, several teams of students have also worked on this case, some of whom are here today. Those present today include Jim Rhinerson, Murali Jasti, and Kelda Roys.

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