Brian Avery was convicted of armed robbery after a trial in 1995. Among the evidence presented by Wisconsin prosecutors was a video of the events at the center of the case.
Due to the state of video recording technology in the 90s, the film was relatively “grainy” and did not give a clear picture of the robber. However, more than a decade after Avery was convicted, contemporary techniques and equipment allowed much sharper images to be drawn from the original video.
This led Avery, who is currently serving a 30-year prison sentence, to file a motion requesting that his conviction be set aside. In court, his attorney argued that the enhanced pictures constituted “newly discovered evidence” and entitled Avery to a new trial.
To support this claim, the defendant’s legal team arranged for a certified expert in the field of metrology – the science of measurement – to testify. In court, the metrologist asserted that the refined video showed the perpetrator was several inches shorter than Avery.
The state also produced an expert witness, who testified that the alleged height difference between the defendant and the suspect shown in the video could not be conclusively proven based on the images.
Appellate court divided on question of new evidence’s impact
Although Avery’s motion was initially denied by a court in Milwaukee County, the District I Court of Appeals later reversed the circuit court’s decision and ordered that the defendant be granted a new trial.
Writing for the majority, Judge Kessler asserted that “the real controversy of whether Avery was actually involved in the robberies was not fully tried” because the jury had not seen the enhanced video footage. Kessler noted that if a jury believed the evidence presented by the metrologist, it would conclude that Avery could not be the suspect shown in the video. Thus, a new trial was ordered.
One of the three judges who heard the case dissented, writing a separate opinion in which he argued that Avery’s new evidence did not entitle him to a new trial. According to Judge Brennan, the question up for review was “whether the new evidence would, not could, create reasonable doubt” about the defendant’s guilt in the minds of a jury.
Strength of witness testimony, other evidence outweighs effect of enhanced video
On January 30, 2013, the Wisconsin Supreme Court overturned the appellate panel’s decision. In their review of the case, the justices employed legal reasoning similar to that espoused by Brennan in her dissenting opinion.
The court specifically noted the fact that the video had not been a key component in the state’s case against Avery. Other factors, including the testimony of two eyewitnesses, were held to be sufficiently convincing that the underlying controversy – whether Avery was involved in the robbery – had been fully tried, despite the absence of the enhanced video evidence.
“We conclude that there is not a reasonable probability that a jury, looking at both the evidence presented at trial and the new evidence, would have a reasonable doubt as to Avery’s guilt,” wrote the majority.
Although there were other factors involved in shaping events, this outcome clearly underscores the importance of witness testimony.
In order to get the most out of a deposition, attorneys must be able to review individual statements after the event. Legal professionals who need to secure accurate deposition transcripts for a case in Wisconsin should consider contacting a Milwaukee litigation services company.