Wisconsin Lawyer
Vol. 84, No. 3, March 2011

He was a hero of sorts, an improbable, yet compelling icon of innocence. A legendary survivor of an imperfect court system and the intended namesake of one of Wisconsin’s most meaningful criminal justice reform bills in years, he was poised to reap millions in his wrongful-conviction lawsuit.

But then it exploded. On the very day Gov. Jim Doyle was scheduled to sign into law a bill that would bear his name, Steven Avery was arrested after apparently perpetrating one of the ghastliest murders in the history of Wisconsin, a state with a long and ignominious past of ghastly murders. The “innocent” man would stand trial again, this time for the torture, rape, and murder of Teresa Halbach, a freelance photographer from the heart of northeast Wisconsin.

Eighteen months later, the now rightly convicted Steven Avery was escorted through the gates at Dodge Correctional Institute in Waupun, 21 years after passing through them the first time, and less than four years after having walked out a free man. There were no smiles this time, no cameras, no klieg lights, and no reporters asking for a moment of his time. The doors clanged shut, and for the rest of his life – barring any uncanny revelations concerning Ms. Halbach’s murder – the nation’s most famous exoneree will unceremoniously be known as Wisconsin State Prison Inmate Number 00122987.

An Endangered Principle of Law

Ever since the grim discovery of Teresa Halbach’s remains at the Avery Salvage Yard, the media has rightly focused on her murder, and her killer’s prior wrongful conviction has all but been forgotten. The prevailing view was who cares that a depraved sociopath like Mr. Avery was wrongly convicted of an earlier crime – look what he did to Ms. Halbach! As the talking-head prosecutor on Nancy Grace screamed at the time, “The real crime is they let him out in the first place – thanks a lot, Wisconsin Innocence Project!”¹ But five years on, it’s time to take a broader and more dispassionate view of the Avery saga, because when considered in its entirety, it raises difficult, even painful questions that go to the heart of our justice system, questions we would do well not to ignore.

“It’s better to let a hundred guilty go free than to convict one who is innocent.” Not for the faint of legal heart, but thus boldly proclaims one of our oldest and most cherished principles of law. But in a culture in which crime and its insidious ability to turn innocent lives upside down run rampant, and when whole swaths of major cities are abandoned to stray-bullet lawlessness, can we still afford to hold fast to such an idyllic view?

Mr. Avery, who the National Innocence Project rushes to point out is the nation’s only exoneree to be subsequently charged with a violent crime, is a case in point. In light of the evil that befell Ms. Halbach at his hands, and mindful of the tremendous risk he posed to public safety since he was a teenager, was Mr. Avery’s wrongful conviction really so bad?

Fallout from a Wrongful Conviction

The search for an answer begins in 1985. Limited space here prohibits an exhaustive review, and to be sure not all agree, but after reviewing thousands of court documents, police reports, and letters and interviewing many of the parties involved, I’ve reached an unsettling conclusion about Steven Avery’s wrongful conviction: it didn’t happen by mistake. What caused it stretches well beyond ordinary negligence, and blaming poor police communication and tunnel vision, like the former Wisconsin Attorney General did in her independent review, doesn’t square with the evidence.² Instead, the wrongful conviction was a colossal injustice perpetrated as a result of the moral shortcomings of the sheriff and the district attorney at the time. Perhaps they failed to appreciate the wrongfulness of their conduct; after all, ridding the streets of dangerous miscreants like Mr. Avery is part of their jobs. But regardless of their intent, the devastating aftermath of their actions is a tragic example of the unintended consequences that can flow from a single wrong.

Few of us are inclined to pity Mr. Avery given what transpired after his release, but Mr. Avery wasn’t the only one harmed by his wrongful conviction. The evidence strongly suggests that within days after arresting him, the sheriff and the district attorney not only knew he was innocent but also knew who the real assailant was – Gregory Allen, a sociopathic sex predator with a mile-long record. But the sheriff and the district attorney, believing in the rightness of their cause or at least satisfied what they were doing wasn’t terribly wrong, never slowed down their drive to convict Mr. Avery, which left Mr. Allen free to roam the streets and repeat his crime. Eight years after committing the crime for which Mr. Avery was convicted, Mr. Allen broke into a Green Bay residence and raped the woman inside. Convictions for kidnapping, burglary, and second-degree sexual assault followed and Mr. Allen was sent away for 60 years. Had he been behind bars where he belonged, there would’ve been one less victim of a violent crime.

Then there’s Penny Beerntsen, the victim of Mr. Allen’s original crime, the one for which Mr. Avery was wrongfully convicted. When DNA evidence proved innocent the man she believed for 18 years was her assailant, and that it was an even more violent sex offender with a pending out-of-state warrant for murder who actually attacked and nearly killed her, Ms. Beerntsen was victimized all over again – this time by the justice system sworn to protect her. “I was devastated,” she recently told a reporter. “I knew Steven Avery wasn’t a boy scout, but nobody should serve time for a crime they didn’t commit. ... I just wanted the earth to swallow me. I swear that day was harder than the day I was assaulted.”³

And what of Mr. Avery, himself? To be sure, he (and to a lesser extent his 16-year-old nephew, Brendan Dassey) bears responsibility for Ms. Halbach’s murder – that much is clear. But nearly two decades of wrongful imprisonment undoubtedly took their toll on his humanity, exacerbating his sociopathic tendencies until he was completely unhinged. He considered prison his home, a place to which he was almost destined to return, and the prospect of returning there did nothing to deter him from committing murder.

His reminiscence with a Milwaukee Journal Sentinel reporter after his exoneration about how he used to sit on a picnic bench in the prison yard and count the jets that flew by is instructive: “Sometimes, I feel like it’s easier in there,” he said a few months after moving into an ice shanty with its jail-like confines, “some days, just put me back there, get it all over with.”⁴

“It ain’t nothing to put on a hundred miles,” he told the same reporter, explaining how he would take a drive in his truck to escape his anger and frustration. “There’s probably too much going on inside my head – brain can’t put it all in,” he said. “Sometimes it’ll last all day, that’s when I try to stay away from everybody, sometimes I cuss them out, sometimes I just go for a ride.”

His mistrust of the legal system and the celebrity status he received after being released from prison didn’t help either. Considering the law a disgrace to which he should not be bound, he flagrantly lied in his girlfriend’s fifth-offense drunk driving trial just months before he killed Ms. Halbach.

All of which leads to a troubling question: Would Ms. Halbach still be alive if Mr. Avery hadn’t been wrongly convicted of the earlier crime? Perhaps he would have left his parents’ salvage yard business for greener pastures with his marriage still intact, or more likely, landed in prison for a crime he really did commit. But whatever his life’s path, it’s unlikely it would have led to Ms. Halbach’s murder.

On firmer ground than this decidedly conjectural question concerning causation was the real prospect that Mr. Avery’s prior wrongful conviction might have resulted in his acquittal for Ms. Halbach’s murder. It’s all but forgotten now, but when two highly skilled defense attorneys used the wrongful conviction to argue that the police had planted evidence and were trying to set him up again, the jury deliberated for three days before reaching its verdict, and one of Wisconsin’s most notorious killers nearly went free.

Other Lessons from the Avery Case

Despite its gruesome facts, or perhaps because of them, the Avery saga’s notoriety might trigger a closer examination of the problem of wrongful convictions in general and spark a more earnest search for solutions.

First, how frequently do wrongful convictions occur? The short answer is, not very. Concurring in a 2006 U.S. Supreme Court death penalty decision, Justice Antonin Scalia estimated the rate of wrongful convictions in felony cases to be less than three-hundredths of one percent – 0.027 percent to be exact. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly,” Justice Scalia wrote. “That is a truism, not a revelation.”⁵

Still, since 1989 more than 250 wrongly convicted persons have been exonerated by DNA testing in the United States; 17 of them served time on death row before their convictions were overturned.⁶ The problem was so widespread in Illinois that in 2000, Gov. George Ryan, noting that 13 death row inmates had been exonerated since the mid-1970s when capital punishment was reinstated there, placed a moratorium on capital punishment in that state.

It’s impossible to know how many other wrongful convictions remain undetected, because some criminal convictions are secured without physical evidence, leaving nothing behind to be tested for DNA. And even when physical evidence is obtained, it’s frequently no longer available once the appeal period has lapsed. In fact, nearly one quarter of the cases closed by the Innocence Project since 2004 were closed because evidence was lost or missing.⁷

How many wrongful convictions are caused by official misconduct? No doubt, honest mistakes account for many of them, but the National Innocence Project estimates that police and prosecutorial misconduct were factors in 37 of the first 74 exonerations obtained with the use of DNA evidence. The list of misconduct includes deliberate suggestiveness in identification procedures; mishandling, mistreatment, or destruction of evidence; withholding of evidence from the defense; coercion of false confessions; and the use of unreliable government informants.⁸

Inexcusably, prosecutors whose misconduct contributed to wrongful convictions almost always go unpunished and often even advance in their careers,⁹ although recent developments suggest this trend may be changing.¹⁰

Observers inside and outside the criminal justice system are acutely aware of the problem and are earnestly looking for solutions. In response to a recent spate of high-profile exonerations, including Steven Avery’s, the American Bar Association amended its Model Rules of Professional Conduct to include a section entitled, “Special Responsibilities of a Prosecutor.” Reminding prosecutors that they have “the responsibility of a minister of justice, and not simply that of an advocate,” the model rule provides, among other things, that if a prosecutor knows of clear and convincing evidence that a convicted person is innocent, he or she must promptly seek to remedy the conviction by disclosing the evidence to the defendant and to the court.¹¹ This sounds like common sense, but if the Avery case teaches us anything, it isn’t necessarily so.

Also, in the last few years, Wisconsin, New Jersey, North Carolina, and several large-city police departments throughout the nation have implemented new procedures that have proven successful in improving the accuracy of eyewitness identifications. In Wisconsin, the Avery Task Force inspired legislation that requires every police agency in the state to adopt guidelines on identification procedures that address issues such as proper instructions to witnesses, double-blind testing, and sequential presentation of suspects in line-ups or photographs in arrays. The legislation also clarifies which laboratories in the state are responsible for postconviction DNA testing and requires that testing that might prove innocence be given priority.¹²

But while procedural reforms like these, and even broader measures such as changing the way we select prosecutors may help, they still don’t get to the root of the problem. Larger issues are at stake. Whether prosecutors are elected, as they are in most states, or appointed, as in the federal system, the office of prosecuting attorney is fraught with political pressure. The media and the politically driven “tough on crime” attitude of some citizens produce ever-stricter crime legislation, which makes it difficult for prosecutors to make decisions based only on reasoned judgment and common sense. The same holds true for judges, who face similar pressures in handing down appropriate sentences.

So what’s the solution?

Finding a Solution

Addressing a roomful of federal prosecutors in Washington, D.C. in 1940, U.S. Attorney General Robert H. Jackson began by defining the scope of the problem:

“It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated, and if he is that kind of person, he can have this done to the tune of public sentiments and veiled or unveiled intimations. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

And he closed by suggesting at least part of the solution:

“A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”¹³

None of us who work in the justice system is perfect, but as a court instruction reminds jurors before they begin deliberations, they have been “called upon to act in the most important affairs of life.” The same is true for prosecutors, so we must try our hardest to do what’s right: if we don’t, an injustice can fester for years.

Endnotes

¹Nancy Grace, program aired Nov. 11, 2005, on CNN.

²In a report released Dec. 17, 2003, Wisconsin Attorney General Peg Lautenschlager concluded that the Manitowoc County sheriff and district attorney committed no ethical or criminal violations in 1985 in their prosecution of Steven Avery. Any opinion expressed herein to the contrary is that of the author, and though shared by many, it is not shared by all.

³Kathy Millen, “Woman Still Dealing with Long-ago Assault,” Naperville Sun, Jan. 19, 2011.

⁴Tom Kertscher, Milwaukee Journal Sentinel, Dec. 30, 2003.

⁵Kansas v. Marsh, 548 U.S. 163 (2006).

⁶The National Innocence Project’s website, www.innocenceproject.org. is an excellent source for additional statistics and information concerning wrongful convictions.

⁷See www.innocentproject.org

⁸Id.

⁹John R. Emshwiller & Evan Perez, “Prosecutors Seldom Punished for Misconduct,” Wall Street Journal (Oct. 2, 2010).

¹⁰In Pottawattamie County v. McGhee, 547 F.3d 922 (8th Cir. 2008), the Eighth Circuit Court of Appeals upheld a wrongfully convicted man’s right to sue a prosecutor who procured false testimony during a criminal investigation and then introduced the testimony against him at trial. The U.S. Supreme Court granted certiorari, but the case was dismissed after the parties reached a $12 million settlement. See also Radley Balko, “Is This America’s Best Prosecutor,” Reason Magazine (April 7, 2008), for an interview with newly elected Dallas County District Attorney Craig Watkins, who established a “wrongful conviction integrity unit” to combat the “win at all costs” philosophy of his predecessor.

¹¹ABA Model Rule 3.8 (2008), adopted by Wisconsin SCR 20:3.8.

¹²Wis. Stat. § 175.50 (Eyewitness Identification Procedures).

¹³Excerpted from U.S. Attorney General Robert H. Jackson’s address to federal prosecutors on April 1, 1940, at the Second Annual Conference of United States Attorneys in Washington, D.C.

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