New Technology Raises Questions for State Supreme Court

New video enhancement technology could lead to a new trial for a man convicted of armed robbery. But some on the high court fear using new technology to challenge old convictions could overwhelm the courts with new cases.

In July of 1994, Brian Avery was convicted of being party to two Milwaukee armed robberies and sentenced to 30 years in prison. In 2007, the Wisconsin Innocence Project used new photogrammetric analysis to show that the man thought to be Avery captured on one of the store’s security video camera was three inches shorter than the six-foot-three Avery. A state appeals court granted Avery a new trial but the state field an appeal. During oral arguments before the state Supreme Court last week Justice Annette Zeigler raised concerns about the use of new technology to reverse convictions, “You could always argue gosh this evidence wasn’t available then and if it were maybe the jury would have thought this or maybe the jury would have thought that. Tell me where this stops because you do need finality you need fair trials but you also need finality and we have limited resources.”

Innocence Project Attorney Keith Findley assured the court that its own rules will prevent a flood of new innocence claims based on evidence gathered using new technology, “There are rules, what the court has instructed itself and the lower courts to do is to say that we don’t apply that except in exceptional circumstances. And so to do this the court has to have a profound sense that there’s something wrong here and that’s what the court of appeals in this instance did.”

The attorney general’s office disagrees and argues that the circuit court that found the new photo evidence unreliable had it right and that Avery should not get a new trial. A decision in the case is likely next summer.