WI, Steven Avery, another wrongfully convicted person exonerated by DNA testing
Mark Fenster
Another wrongfully convicted person exonerated by DNA testing.
A Picture of the wrongfully convicted Steven Avery, and a picture of
the new suspect, Gregory A. Allen,, at:
http://www.jsonline.com/news/state/sep03/171379.asp
Fenster
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A mistake, and a miscarriage of justice
Others suspects never seriously considered, records show
By TOM KERTSCHER
tkert...@journalsentinel.com
Last Updated: Sept. 20, 2003
Manitowoc - When state officials begin investigating the wrongful
conviction of Steven Avery, they will likely find little evidence that
authorities here ever seriously considered other suspects in a brutal
sexual assault 18 years ago.
A Journal Sentinel review last week of more than 1,000 pages of court
documents and law enforcement reports suggests that Avery was made a
suspect so quickly - literally minutes after the victim was first
interviewed - that the case against him became a virtual steamroller.
In the end, a jury found the unemployed high school dropout guilty
with little more than what the trial judge called the "very powerful"
testimony of the victim.
By all accounts, the woman, then a Manitowoc business owner, made an
honest mistake when she identified Avery as the man who beat and
indecently touched her.
What perhaps remains to be investigated is why the Sheriff's
Department and district attorney's office in Manitowoc County did not
more aggressively pursue other possible suspects, including Gregory A.
Allen, the man whom DNA tests have now linked to the assault.
Two years earlier, Allen had exposed himself and tried to grab a woman
on the same beach where the Manitowoc woman was assaulted. But Tom
Kocourek, the now-retired Manitowoc County sheriff, said last week
that his investigators never contacted the Two Rivers Police
Department, which handled the Allen case, while it investigated Avery
and other suspects in the Manitowoc woman's attack.
Friday, responding to a request from the new Manitowoc County district
attorney, state Attorney General Peg Lautenschlager said her office
would conduct a review of the investigation and prosecution of Avery.
State lawmakers plan to hold hearings, as well.
***
Having been convicted only of two felony burglary counts and a
misdemeanor count in an animal cruelty case, Avery might never have
become a suspect in a sexual assault. But in January 1985, six months
before the Manitowoc woman was attacked, Avery was accused of using a
deer rifle to try to abduct the wife of a Manitowoc County sheriff's
deputy.
On "numerous" occasions before that incident, the woman said, Avery
had exposed himself to her while she drove to work - an allegation
Avery denied.
Felony endangerment charges from the rifle incident had been filed and
the case was pending against Avery when the Sheriff's Department got
the report about the Manitowoc woman's assault.
Almost instantly, Avery became a suspect.
The assault on Neshotah Beach had occurred about 4 p.m. July 29, 1985.
Before midnight that night:
• The victim had described her attacker to a female sheriff's deputy
who happened to live across the street from Avery.
• That deputy and Sheriff Kocourek, who was a member of the same
church as the victim, pegged Avery as the suspect within minutes of
hearing the victim's description.
• Kocourek immediately ordered his jail to bring mug shots of Avery
and eight other bearded men to the victim's hospital room. The victim,
who had briefly lost consciousness while being choked during her
attack, picked Avery as soon as she saw his photograph.
• While being arrested with the aid of one of his uncles, a Manitowoc
County sheriff's deputy, Avery deepened the suspicions about him.
Avery's wife had asked what was going on as her husband was being
handcuffed inside their rural Manitowoc County home. "They say I
murdered a woman," Avery had said, according to sheriff's deputies.
The arresting deputies - Avery's uncle had left the home by then -
said they had told Avery he was being taken into custody for attempted
murder. But they had not mentioned the gender of the victim.
Avery's apparent slip, according to Circuit Judge Fred Hazlewood, who
presided over Avery's trial, was "powerful information."
***
No fewer than 16 witnesses said they could account for Avery's
whereabouts at various times during the afternoon of the sexual
assault. Some, mostly friends and family, put him at his parents'
rural Manitowoc County home and auto salvage yard until shortly before
the attack; employees at a ShopKo in Green Bay remembered Avery, his
wife and their five young children - including 6-day-old twin boys -
at the store shortly after the attack.
Judge Hazlewood gave credence to the ShopKo witnesses but found it "a
little hard to believe" when Avery's relatives said they had not
spoken to each other about Avery's whereabouts before they testified
in court. A witness who was not an Avery family member indicated that
Avery may have left his parents' home on the afternoon of the
Manitowoc woman's attack earlier than what the other witnesses had
said.
"It is tight," the judge said of the apparent time frame in which
Avery could have committed the assault, "but nonetheless, it is
believable."
The odds may have been heavily stacked against Avery, however, long
before any testimony reached the jury that found him guilty of false
imprisonment, sexual assault and attempted murder.
It is not known, of course, whether the victim would have identified
Gregory Allen - who is serving a 60-year prison term for a later
sexual assault - as her attacker had sheriff's investigators shown her
his picture; they never did. DNA from one pubic hair of Allen's, which
had been preserved from the Manitowoc woman's attack, is what
eventually implicated him and freed Avery.
What is clear is that a snowballing effect occurred after the
Sheriff's Department seized upon Avery as a suspect:
• Before showing the victim the set of mug shots in her hospital room
several hours after her attack, Sheriff Kocourek had told her he had a
suspect in mind, though he did not say it was Avery. She correctly
presumed that the suspect's picture would be included among the mug
shots.
• The suspicions of the sheriff and others in the department were
affirmed when the woman chose Avery's mug shot and said he was her
attacker.
• Before a "live" lineup was done three days after the attack, the
sheriff told the victim that the man whose photo she had picked had
been arrested.
•
The victim was again correct when she presumed that the man who had
been arrested - who turned out to be Avery - was among the eight men
she viewed in the live lineup.
As she had in the photo lineup, the victim immediately identified
Avery as her attacker. He was the only man in both lineups.
"She understands the person that the Sheriff's Department thinks did
it is in there, just as she did in the photo lineup," Avery lawyer
James Bolgert, now a Sheboygan County judge, said in raising an
objection to Judge Hazlewood. But Hazlewood said the department had
not been suggestive to the victim.
As the case progressed, the Sheriff's Department observed how the
woman's confidence in choosing Avery had grown. Indeed, at the trial,
she testified: "There is absolutely no question in my mind."
***
The testimony of the victim, then 36 and the co-owner with her husband
of a widely known Manitowoc business, convinced not only sheriff's
investigators but also then-Manitowoc County District Attorney Denis
Vogel and the jury - even if there were inconsistencies.
The woman emphasized that she had been aware enough during the trauma
of her attack to tell herself, "I have to stay calm and get a good
look at this guy."
Experts say that one of the ironies of eyewitness testimony is that it
is often highly unreliable, particularly when a person is under
duress, but also highly persuasive.
At Avery's trial, University of Wisconsin-Madison psychology professor
Steven Penrod, testifying for the defense, made that point and said
people are "substantially, substantially more likely" to choose a
suspect from a lineup when they expect that the perpetrator of a crime
will be in the lineup.
That, in turn, raises the chances of a mistaken identification, he
said.
Penrod also said eyewitnesses' confidence increases when they are told
that the person they picked from a lineup is the person suspected by
police of having committed the crime. And there is no relationship, he
said, between how confident a witness is about an identification and
the likelihood of that identification being accurate.
"A person who says, 'I'm a hundred percent sure' can also be a hundred
percent wrong," Penrod said.
With little, if any, physical evidence in the prosecution's favor, the
jury in Avery's trial returned guilty verdicts after about eight hours
of deliberations.
***
In an interview last week, retired Sheriff Kocourek said he didn't
know during the Avery investigation that Allen had been convicted of
the sex-related crime on the same beach where the Manitowoc woman was
attacked two years later.
Vogel, the district attorney at the time, prosecuted Avery in the
sexual assault, as well as Allen in the earlier beach crime.
Kocourek also said that he "didn't leave any stones unturned" in
investigating the Manitowoc woman's attack. He noted that DNA testing,
which Sept. 11 freed Avery after more than 17 years in prison, had not
been available at the time.
"The bottom line was the victim was a very convincing witness to the
jury," Kocourek said.
Avery maintained his innocence from the time of his arrest. At his
sentencing, Avery said only this:
"I'm sorry that it happened to her. I feel bad about it. I wish they'd
catch the guy, whoever did it, because I didn't do it, honest to God.
That's it."
From the Sept. 21, 2003 editions of the Milwaukee Journal Sentinel