Photo enhancement technology gives armed robbery suspect a new trial

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 4, 2011 – Brian Avery, convicted on armed robbery charges in the 1990s and sentenced to 30 years in prison, will get a new trial thanks to digital imaging technology not available at the time of his trial, a Wisconsin appeals court has ruled.

In 2007, Avery filed a motion for post-conviction relief based on newly discovered evidence. The new evidence was derived from a new method of digitally enhancing video surveillance, known as Video Image Stabilization and Registration, developed by NASA. It allows examiners to ascertain the height of individuals in surveillance videos, among other things.

A jury saw “grainy” video surveillance tapes of the robberies and pinned Avery on two separate armed robberies, weighing other evidence at trial.

But a digital enhancement, known as a photogrammetric analysis, using the new technology showed the robbery suspect was actually several inches shorter than Avery.

Two experts testified, one for the state and one for the defense, about the precise height of the individual (thought to be Avery) captured on video during one of the robberies. The defense expert testified the suspect could not be six feet, three inches (6’3”) tall, Avery’s height.

The state’s expert testified the suspect appeared shorter, between 5’11” and 6’1 ½", but noted that other variables made it possible the suspect was 6’3”. The circuit court denied Avery’s motion for a new trial after weighing the expert testimony.

A new trial is warranted, Avery argued, because this new evidence, along with other evidence, could place a reasonable doubt in the jury’s mind about his involvement in the robberies. In State v. Avery, 2010AP1952 (Oct. 4, 2011), the District I Court of Appeals agreed.

“By concluding that [the defense expert’s] opinions were ‘not reliable enough’ to entitle Avery to a new trial, the trial court gave one opinion from a credible witness greater weight than a competing opinion from a different credible witness” wrote Judge Joan Kessler. “A trial court applies an incorrect test when it weighs competing credible evidence.”

The trial court should have determined whether there was a reasonable probability that new evidence would create doubt about the defendant’s guilt, the appeals court explained.

“Simply put, if the jury believes the new evidence from Avery’s expert, then it would conclude that Avery could not be the man in the video,” Judge Kessler wrote.

The appeals court also ruled that Avery was entitled to a new trial under Wis. Stat. section 752.35, which gives a court of appeals discretionary reversal authority if the real controversy has not been fully tried. The real controversy, Avery’s involvement, was not fully tried, the court explained, because the jury did not hear the photogrammetric evidence.

The circuit court had ruled that new evidence would not destroy the state’s case against Avery. But the appeals court noted that “[n]o Wisconsin case interpreting [section 752.35] requires that the defendant’s new evidence” totally destroy the prosecutions theory.