Convoluted Brian

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The Importance of Understanding

The AG Report?The Courts and the Wrongful Conviction

The courts played a heavy part in the wrongful conviction of Steven Avery and the reinforcement of the false incarceration. It was outside the scope of the report(1) to address the rather bizarre reasoning involved in the incarceration of our citizens. Rather, Attorney General Peg Lautenschlager used rulings to justify the outcome of the process that failed.

When presenting the photo‑array, the sheriff suggested that the suspect might be in the array. When Avery first appealed his case, the Court of Appeals in 1987 used the 1974 Fells v. State to justify this statement. Particularly that a victim would assume the suspect is in the array.(IV‑5)

There are some serious problems with the reasoning in Fells. The claim that a victim would conclude that the suspect is in the array is not valid. There are people who make no assumptions. There is nothing to dictate that a suspect is the actual perpetrator. There is a reasonable possibility that the perpetrator is not in the array. The Sheriff did not mention the real possibility that suspect would not be in the array. If he had, would this have been as permissible as the converse? And just as important, would this guide the identification process? As it was, the perpetrator was very definitely not in the photo array and the identification procedure was flawed.

The report glossed over the fact that the photo array was based upon a “sounds like Steven Avery” statement that was not made by the victim.(IV‑2) Either the Court of Appeals did not have that information or ignored it.

The Appeals Court claimed that the array was one of the fairest it had seen. Based upon a photo taken of persons in the lineup, that the same court felt was fine, the members of the array did not have to be similar to satisfy the court.

The lineup was blessed by the same Court of Appeals that felt leading a victim toward a desired end was permissible. The court determined that the lineup was fair and balanced. Yet, any observation of a photo of the lineup shows the opposite.

Avery questioned the validity of the victim’s eyewitness identification. Based on the 1976 State v. Tarrell, the eyewitness testimony of the victim is sufficient for conviction even without other evidence. But, there is a huge distance between the lack of real evidence to corroborate the victim’s identification and the great multitude of alibi eyewitnesses and alibi evidence that were present in the Avery case.

Thus, the Court of Appeals not only gave its imprimatur to bad investigative and trial behaviors; it increased the permissible scope of faulty reasoning and witness guiding.

Ironically, the victim did provide a description that was a fairly accurate depiction of the real criminal. Persons in the courthouse who observed the sketch noted how much it resembled Gregory Allen and how little it resembled Avery.(VI‑26, VI‑28) And a member of the sheriff’s department also expressed that the description given by the victim matched a person, unidentified in the report, matched another known to have committed sex related crimes.(IV‑22)

This was noted in the report but was not given the import it deserved. The Court of Appeals did not even mention the sketch and how the Sheriff made up a photo array with no guidance except for a “sounds like” from a deputy.

But, if the decisions are considered lawful then they can be used to justify bad behavior by authorities. There is no doubt though that any mere mortal engaging on the same behaviors as the 1985 Manitowoc Sheriff’s Department would end up in prison.

While Lautenschlager used the decisions to justify some rather bad behaviors, she still overlooked the fact that a crucial step in the eyewitness sequence was ignored. This more than anything produced the chain of events that produced a false conviction and imprisonment.

A question I have is if law enforcement uses techniques that are clearly wrong, is there culpability although courts approve the erroneous methods and assumptions? After all, if we want the bad guys taken off the streets, how it is it proper to use methods that are very likely to produce false results?


(1 )
December 17, 2003

Memorandum Wisconsin Department of Justice – Steven Avery Wrongful Conviction

The report does not have page numbers. The references used here will use section outline numbers used in the report followed by the paragraph number of the section. So the reference (IV‑14) would refer to paragraph fourteen of section 4.

Related Posts

The Reasonable Suspect Hypothesis
Ignoring the Usual Suspects

by Brian McCorkle
posted on 21 January, 2007 at 23:27 pm
in category Steven Avery

The Attorney General’s report excusing those responsible for the wrongful incarceration of Steven Avery relied on a Court of Appeals decision.

Apparently, this means that wrongful imprisonments are good. Since reasoning in the courts that defies logic and reality is the basis for bad behavior by investigators.

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