Convoluted Brian

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The Importance of Understanding

Assumptions and False Evidence by Law Enforcement

We depend of law enforcement officers to be open‑minded and fair when conducting investigations. But, too often that is not the case. A criminal case in Outagamie County, Wisconsin demonstrates how assumptions of what occurred have cause false items of evidence to be claimed as good accident reconstruction.

This case stems from an accident that occurred 1 April, 2007. Two women walking along or on a highway were struck and injured, one seriously. The driver of the van, Randall Ashauer, had a blood alcohol level of 0.195 percent.

Ashauer is charged with two counts of injury by intoxicated use of a motor vehicle and two counts of injury by use of a motor vehicle with a prohibited alcohol concentration. These apparent duplicate charges differ as to a felony or misdemeanor.

The prosecution claimed that Ashauer left the roadway and struck the two women. They based this claim on photographs taken by Sgt. Don Krueger of the Kaukauna, Wisconsin, Police Department. He took the photographs because “They are the predominant tire tracks that were close to where the suspected vehicle went off the roadway.” The Sergeant divined where, and assumed that it did, the Ashauer van left the road and then took these photographs to show his guess was correct. All the photographs proved was that Krueger made faulty assumptions.

Ashauer maintains that the women were on the roadway when he hit them. The two were walking the wrong way so they were unaware of vehicles approaching from behind. On 16 January, 2008, Ashauer’s attorney, Mary Lou Robinson, demonstrated that the assumptions made for the tire evidence were faulty. Judge Mark McGinnis disallowed the bogus evidence.

Wisconsin State Trooper Jason Schwarz wrote a detailed report of the accident scene investigation making use of the faulty assumptions of Sgt. Krueger. He admitted that he was told the tire marks were from squad cars. Except one tire track had no patterns and Trooper Schwarz decided that track belonged to the Ashauer vehicle to enable the desired conclusion.

He claimed that the track was consistent with the evidence although it could not be matched to Ashauer’s vehicle. The problem is that he claimed this was evidence that Ashauer drove off the roadway before hitting the victims. He claims that this is evidence simply because it corroborates his claims. That is a breakdown in reasoning and logic

The outcome is that much of the report was written based upon tire marks that did not belong to the accused. Further, the conclusion that Trooper Schwarz derived was false because it was based on the premise he was trying to prove. This does not mean that Ashauer’s vehicle stayed on the road or left the road. This means that the attempt to prove it left the road was fallacious.

There are witness statements that support the State’s contention of the accident scenario, but eyewitness testimony is often not reliable. The breathalyser administered to Ashauer is evidence that he was impaired. There are witness statements that he was not obviously impaired a short time before the accident.

This was an accident with tragic consequences. One of the victims is paralyzed and might remain so. The driver will face serious punishment. But, it is also one where responsibilities are on both sides. Based on the breathalyser test, Ashauer was operating while intoxicated. The two women were walking the highway the wrong way which increases risk. One of the victims was wearing a grey coat, and the other wore a dark red hooded sweatshirt. This decreased their visibility to other drivers. There was no mention in Trooper Schwarz’s report regarding any impairment of the victims. I believe that if the report stated that the two were not impaired by drugs or alcohol that would be important.

The issue here is how law enforcement makes faulty assumptions and then uses the results to incarcerate people. I wonder how many have been falsely convicted due to false conclusions such as those shown here. It is well known that if investigators decide too early on guilt, then they are more likely to be wrong about conclusions than the average citizen who is guessing.

There was another questionable conclusion in Trooper Schwarz’s report. In a discussion on airbag deployment, he said, “A large SUV like Ashauer’s would not be considerably hindered by an impact with a pedestrian like Pohl. Therefore, one may not expect a file to be written and stored in this situation.” I suspect that airbag calibration would be involved here. The manufacturer would be a better source for this conclusion.

Of course, the ethics of the assistant prosecutor in attempting to use bogus evidence are deplorable. This demonstrates that prosecutors are happy to use falsehoods to achieve a conviction or enhance the penalties for a conviction.

This is the state of training for law enforcement in the State of Wisconsin. The people running the training sessions may not be competent, or the curriculum is faulty. But, the real responsibility is that of the management of the various police agencies.

by Brian McCorkle
posted on 20 January, 2008 at 18:51 pm
in category Criminal Justice,Seeking Perspective

Those in charge of police agencies need to stress the need to be open‑minded and thorough. It is the responsibility of the management to ensure correct results rather than assumptions based upon desired outcomes. Good evidence will speak for itself. Bad evidence will lose cases or even worse, convict the innocent.



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