“[T]his system is designed to perpetuate a conviction as opposed to examine whether…someone could in fact be innocent….”

—Steve Glynn

When I first opened my criminal defense practice in January 2002, I started with the naïve belief that trial judges would be wary of wrongfully convicting an innocent defendant, and would therefore err on the side of caution in all judicial decision making. And even if something at the trial-court level went wrong, there would still be nothing to fear. Defendants have the right to appeal their convictions, and the appellate court would be waiting, chomping at the bit to stamp out any errors that happened to slip through. At least that's how I thought the system worked.

But after a few months of practicing law, I completely abandoned my unfounded beliefs and stood corrected.

TRIED AND CONVICTED

It is undisputed that innocent people are convicted of crimes they did not commit. In many cases, these wrongful convictions come to light through DNA exonerations. However, the overwhelming majority of real-life criminal cases do not involve DNA evidence, or even scientific evidence of any kind.1 It is therefore extremely difficult to estimate the number of wrongful convictions that occur every year in the United States. That is why it is so important that post-conviction courts and appellate courts calmly and rationally analyze all convictions and correct any injustice—or, again, at least that's the idea.

An excellent example of the post-conviction and appeals process gone wrong is Steven Avery's conviction in the Penny Beerntsen case. The eyewitness identification aspect of that case was the subject of the previous chapter. To briefly recap the trial evidence, Beerntsen testified that she was positive Avery was her attacker. Despite her confidence, however, her initial description of the perpetrator did not match Avery in several respects. The most glaring example was that she told deputies she got a good look at the perpetrator, and he had brown eyes. Avery's booking photo, however, revealed that his eyes were bright blue.²

In addition to the discrepancies between Beerntsen's description of her attacker and Avery himself, Avery denied committing the crime, sixteen alibi witnesses testified that he was nowhere near the crime scene, and, most compelling of all, the state had no physical evidence linking him to the crime. Yet, despite this gross imbalance in the evidence, the jury went the other way: it found Avery guilty beyond a reasonable doubt of the false imprisonment, sexual assault, and attempted murder of Beerntsen.³ What followed Avery's trial-court conviction was a long, winding road of judicial ineptitude.

AVERY'S FIRST APPEAL

After the jury's guilty verdicts on all counts, the case proceeded with an appeal based in part on an insufficient evidence type of claim.⁴ That is, Avery argued that a single witness's identification was simply not enough evidence to sustain his conviction given the facts of his case.

This, it would seem, would be the type of case at which an appellate court would want to take a close look. How could a single witness's in-court identification of a defendant sustain a conviction given the overwhelming evidence that the defendant was innocent?

In reality, though, appellate courts do not want to do anything to disturb a jury's guilty verdict. And in this case, the court was able to easily dispense with Avery's appeal, dismissing his argument as “unmeritorious based on well-established Wisconsin law indicating that the eyewitness testimony of a victim is sufficient to sustain a conviction even absent corroborating evidence.”5

Worse yet, despite the discrepancies between Beerntsen's initial description of her attacker and Avery's appearance, the court still concluded that “her initial description substantially matched Avery's appearance….”⁶ In a subsequent appeal—an appeal discussed later in this chapter—the court at least acknowledged the eye color discrepancy. However, the court quickly dismissed the problem: “She stated that although she had initially told the police that her assailant had brown eyes, she realized when she identified him in a photograph that she was ‘mistaken.’”⁷

But doesn't this “mistake” call into question the entire eyewitness identification on which the conviction was based? If Beerntsen was “mistaken” about what her attacker looked like, then how could the appellate court rely on her identification of Avery as the sole basis for the conviction? And if Beerntsen was not “mistaken”—that is, if her initial description was correct and she merely changed that description to conform to the physical characteristics of the suspect the sheriffs selected for her—wouldn't that, too, cast serious doubt on her identification of Avery as the perpetrator? In fact, wouldn't that be proof that Avery was innocent?

Apparently not, as the appellate court was comfortable affirming Avery's conviction. And normally, defendants don't get more than one kick at the cat during the appeals process. But in the decade following Avery's first appeal, new evidence started to trickle in, and his case for a new trial became even more compelling.

AVERY'S POST-CONVICTION MOTIONS

As time passed and DNA testing became more sophisticated, Avery's defense team asked the trial court for additional testing of the DNA evidence in his case. His post-conviction motion stated, “DNA testing which excludes both the victim and Mr. Avery would be highly significant new evidence indicating that the one-witness identification was inaccurate and that Mr. Avery's 16 alibi witnesses were correct.”⁸

Perhaps thinking that Avery would merely be sending his appellate lawyer on a wild goose chase, the trial court agreed, and “granted Avery's motion for release and testing of the evidence.”9 But then the evidence came back with results that the state and the trial court did not like: “DNA analysis of the fingernail scrapings from the victim…reveal the presence of DNA which could not have come from either the victim or Mr. Avery and…most likely came from the perpetrator of this offense.”¹⁰

In other words, because the victim engaged in a violent struggle with her attacker, the medical personnel wisely obtained samples of the material lodged under her fingernails. And now, DNA testing revealed that the biological material in those samples came from a person other than the victim and Steven Avery. Based on this and other newly discovered evidence—the state had previously failed to disclose that another suspect (the actual perpetrator, Gregory Allen) was being investigated for the crime—Avery asked for a new trial.

The trial judge, however, denied Avery's motion. Even though the judge previously agreed that “DNA testing which excludes both the victim and Mr. Avery would be highly significant new evidence,” he apparently changed his mind when he said, “I conclude that the DNA evidence does not raise a reasonable probability of a different result as I view the evidence on both sides nor does it cause the Court to have doubt about the integrity of the first trial.”¹¹

Fortunately for Avery, he had the right to appeal the trial judge's ruling. Surely the appellate court would not fail him a second time.

AVERY'S SECOND APPEAL

We now come to the court opinion that Steve Glynn, one of Avery's civil rights lawyers, was referring to when he said that the system is “designed to perpetuate a conviction as opposed to examine whether…someone could in fact be innocent….”¹² In Avery's second appeal, the court addressed two issues: the legal standard for review and, when applying this legal standard, whether Avery should get a new trial so he could present his newly discovered DNA evidence and third-party guilt evidence to a jury.

Avery argued that the proper legal standard was simply for the court to decide whether it was “reasonably probable that a different result would be reached on a new trial”—a trial where the jury would have the benefit of hearing his new evidence.13 But the court made Avery's burden tougher to satisfy by deciding that the proper legal standard “requires the defendant to prove, by clear and convincing evidence, that it is reasonably probable that a different result would be reached on a new trial.”¹⁴

The court had added a second burden of proof—“clear and convincing evidence”—which is a higher burden than “reasonably probable.” Such legal gymnastics were intended to allow the court to conclude, with a straight face, that Avery's newly discovered DNA evidence would not change the outcome of the case if presented to a new jury in a new trial. The court's double-burden linguistic trick is the equivalent of telling a corporate plaintiff in a breach of contract case that not only do you have to prove your case by the preponderance of the evidence, but you have to prove beyond a reasonable doubt that you proved your case by the preponderance of the evidence.

If this sounds like disingenuous nonsense, it is. A few years later in an unrelated case, the Supreme Court of Wisconsin held that combining the two burdens of proof—deciding whether there is “clear and convincing evidence” of a “reasonable probability” of something happening—is irrational. The court stated that “there need only be a reasonable probability that a different result would be reached in a trial. There are no gradations of a reasonable probability; either there is one, or there is not.”¹⁵

But even before Wisconsin's high court weighed in on this issue, it is not clear why the lower appellate court engaged in such irrational word play just to create a new hurdle for Avery. This appellate court was going to deny Avery's appeal on substantive grounds anyway, so the linguistic tricks weren't even worth its trouble. That is, the appellate court agreed with the trial judge and found Avery's newly discovered evidence to be unpersuasive—and it would have done so regardless of the legal standard it pretended to apply.

Before we discuss the appellate court's substantive decision, let's briefly recap what it knew when it rendered its decision. It knew that the state had produced one piece of evidence at trial: the eyewitness identification by Penny Beerntsen. However, that in-court identification was impeached with her prior, inconsistent description of the perpetrator and, further, was tainted by multiple, flawed, pretrial identification procedures. On the other hand, Avery had sixteen alibi witnesses and the complete lack of physical evidence on his side. And now, his newly discovered evidence included proof that law enforcement had suspected a third party for the Beerntsen rape, and proof that the DNA evidence under the victim's fingernails did not belong to either Avery or the victim. With all of this, one would expect that the appellate court would be eager to remand the case for a new trial.

That, however, was not what happened. Instead, despite all of the evidence on Avery's side of the ledger, the appellate court held that “we do not view this case as extremely close.”16 Therefore, the court concluded, Avery's newly discovered evidence “did not create a reasonable probability of a different result on retrial.”¹⁷ The court simply declared that Avery's third-party suspect evidence was “far too vague,”¹⁸ and dismissed his new DNA evidence in the following manner:

[T]he State argues that a source of DNA, such as a “flake” of skin, could have been deposited under [Beerntsen's] fingernails during any one of her “casual contacts” with…the man and woman who assisted her, her husband and hospital personnel…. As such, the State contends that “the DNA testing which excluded the defendant and the victim as the source of the DNA, really does not have much probative force in excluding the defendant as the assailant.”

We agree with the State…. [T]his evidence if used at trial would invite a fact finder to speculate about various possible sources of the DNA. In short, the DNA evidence does not make it any more or less probable that Avery assaulted [Beerntsen].¹⁹

In its desperation to deny Avery a new trial and affirm his conviction, this appellate court did not sufficiently consider—or simply did not care—how absurd its opinion would sound in any other context.

Imagine, for a moment, that a victim was beaten and assaulted, just as Beerntsen had been, during a violent struggle with her attacker. And further imagine that, in our hypothetical example, the victim knew her attacker: it was one of her roommates. In a situation like this, law enforcement would obtain DNA scrapings from under the victim's fingernails. This, of course, would provide physical evidence to corroborate the victim's accusation against her roommate-attacker.

Yet, according to the reasoning employed by Avery's appellate court, the police in our hypothetical example should not bother collecting the DNA scrapings, as such evidence would be meaningless. Why? Because DNA is easily deposited underneath fingernails—it could get there from a mere “flake of skin” that originated from “casual contacts” between the victim and the roommate-attacker before the attack. Therefore, even if the roommate's DNA was found lodged under the victim's fingernails, it would “not make it any more or less probable” that the roommate was, in fact, the attacker.

This pseudo-reasoning is a prime example of a court first deciding the conclusion it wishes to reach—in Avery's case, denying his request for a new trial—and then saying anything, no matter how absurd, to justify its predetermined outcome.

ALL'S WELL THAT ENDS WELL?

Fortunately for Avery, he was eventually cleared of the Beerntsen rape and released from prison—albeit nearly two decades after he was convicted at trial.

However, Avery's freedom was won without any help whatsoever from the conviction-affirming appellate court. Instead, additional advances in DNA technology allowed the defense to test a hair that had been collected from Beerntsen's person immediately after the rape. This test proved that the hair was not Avery's and was not the victim's. Further, the test proved that the hair belonged to Gregory Allen, a serial rapist who was serving a prison sentence for a rape he committed after raping Beerntsen. With this conclusive proof of Avery's innocence, even the prosecutor had to join in his request for freedom.20

Justice, however, was not only delayed, but also temporary. Unfortunately for Avery, it wasn't long before the Manitowoc Sheriff's Department arrested him again—this time for the murder of Teresa Halbach.