Update, WI, Steven Avery to sue over wrongful conviction
Mark Fenster
Picture of Steven Avery at:
http://www.jsonline.com/news/state/oct04/265235.asp
Fenster
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Man to sue over wrongful conviction
He spent nearly 18 years in prison for rape
By TOM KERTSCHER
Posted: Oct. 8, 2004
Steven Avery, the Manitowoc County man who served nearly 18 years in
prison before DNA tests proved he did not commit a sexual assault,
will seek $36 million in a federal civil rights lawsuit to be filed
Tuesday against the county, its former sheriff and its former district
attorney.
Steven Avery
Avery's lawyers say that if their client does collect millions, in
what would be a unique legal victory in Wisconsin, it should force law
enforcement officials throughout the state to reform some of their
crime investigation procedures.
"It's the kind of thing that you hope will effect some institutional
change," said 33-year criminal defense attorney Stephen Glynn, who is
filing the suit with civil rights lawyer Walt Kelly.
The lawsuit, according to a copy provided to the Journal Sentinel,
alleges that there was an "attitude of hostility" in the Sheriff's
Department against Avery and his family before he was arrested for the
1985 assault. It also says that evidence implicating another man in
the assault was ignored by the sheriff and the district attorney.
Proving that the officials deliberately violated Avery's
constitutional rights, rather than made errors in how they conducted
their investigation, will be crucial, experts said.
Jan Smokowicz, an assistant city attorney in Milwaukee who defends
police officers in misconduct cases, said the law generally gives wide
immunities to law enforcement officers and prosecutors.
The immunities are "not to protect police officers who knowingly
violate a person's civil rights, but they are in place to protect
police officers who make an honest mistake," he said.
The lawsuit is to be filed Tuesday in U.S. District Court in
Milwaukee, but it will be heard by a federal judge in Green Bay
because of where the case occurred.
'They screwed up my life'
Avery said Friday that he is optimistic. He acknowledged that $36
million is a lot of money, but not when measured against a divorce and
the estrangement of his five children, which occurred while he was in
prison.
"They screwed up my life. I got no wife. I got no kids," Avery said.
Avery, 42, initially lived with family in Two Rivers after his
release, then in an ice shanty on family property after relations
became strained. He now shares a trailer near his family with a new
girlfriend but does not have a job. He recently collected about $9,000
in donations made to him.
The victim of the sexual assault, meanwhile, is now openly identifying
herself as she continues her years of work in victim's rights causes.
Penny Beerntsen, 55, and her husband, Tom, who had run a longtime
family candy store in Manitowoc, moved out of state after Tom took a
new job in spring.
Beerntsen has been making public appearances and is scheduled along
with former U.S. Attorney General Janet Reno as a featured speaker
next month at a fund-raiser for the Innocence Project of Minnesota.
DNA clearing inmates
Avery is the third of three former Wisconsin inmates, and among 151
former inmates nationwide, who have been exonerated through DNA
testing, according to the national Innocence Project. Some went on to
win multimillion-dollar awards after bringing legal action.
DNA tests sought by the Wisconsin Innocence Project, a program of the
University of Wisconsin Law School, resulted in Avery's being released
from prison Sept. 11, 2003, after nearly 18 years.
His case is all the more unusual in that the DNA tests, from evidence
taken from the scene of Beerntsen's assault, not only cleared Avery
but matched the DNA of Gregory A. Allen.
Allen, who is serving a 60-year prison term for a 1995 sexual assault
in Green Bay, is the man that Manitowoc police and some members of the
Manitowoc County district attorney's office believed had assaulted
Beerntsen.
The suit alleges that Manitowoc police told Tom Kocourek, the former
sheriff, about their suspicions because of similar previous crimes in
the area, and that Denis Vogel, the former district attorney, ignored
requests from his own staff to look into Allen as a suspect.
Steven Rollins, corporation counsel for Manitowoc County, declined to
comment Friday on the suit, and said private attorneys would be hired
after it is filed. Kocourek, who is retired in Manitowoc County, and
Vogel, a private attorney in Madison, did not return calls seeking
comment.
Kelly said the suit is seeking $1 million in compensatory damages and
$1 million in punitive damages for each of the 18 years Avery was in
custody. The suit says that the sheriff's and the district attorney's
"targeting" of Avery and failure to investigate Allen violated Avery's
due process rights under the constitution "so comprehensively as to
"shock the conscience."
The Sheriff's Department arrested Avery several hours after the
assault based on a description Beerntsen gave from her hospital bed.
The Sheriff's Department knew Avery from previous contacts he had with
the department.
The sheriff then showed Beerntsen a lineup of photographs of suspects,
and she picked Avery from the lineup.
Beerntsen has since apologized to Avery and has, along with Avery,
been attending meetings of the Avery Task Force, a state panel formed
by state Rep. Mark Gundrum (R-New Berlin) to try to develop law
enforcement guidelines aimed at avoiding wrongful convictions.
Child
"Mark Fenster" <Fenster_2...@hotmail.com> wrote in message
news:b5e42449.04100...@posting.google.com...
> The sheriff then showed Beerntsen a lineup of photographs of suspects,
> and she picked Avery from the lineup.
>
> Beerntsen has since apologized to Avery and has, along with Avery,
> been attending meetings of the Avery Task Force, a state panel formed
> by state Rep. Mark Gundrum (R-New Berlin) to try to develop law
> enforcement guidelines aimed at avoiding wrongful convictions.
its good that she has owned up and is attempting to help the guy.
doesn't make up for 18 years.