The AG Report-Conclusion
In the conclusion to the report(1), Attorney General Lautenschlager noted that eyewitness testimony and identification can be either reliable or unreliable. She also points out that law enforcement must investigate all reasonable suspects and explore alternate hypothesis. She stated that circumstantial evidence appeared to confirm the victim identification.
There were many oversights in this report.
One of the items in the conclusion was that various police agencies did not share information. The report infers that sharing of information between departments would have placed Allen on a reasonable suspects list.
Yet, there are strong indications that the departments did share information. Even information shared within the Sheriff’s Department was pointedly disregarded. So the Sheriff was unwilling to consider another suspect no matter what. Had the departments been as territorial as the report claims, there would have been no difference in the outcome. This is because the various police agencies did share information.(VI‑7, VI‑8, VI‑12, VII‑13) Both Sheriff Kocerek and Prosecutor Vogel ignored information.
The report relied heavily on the eyewitness identification provided by the victim. However, the photo array was completed without use of the sketch developed by the victim and a deputy.
The report completely missed that fact that the Sheriff constructed the photo array without consulting the sketch drawn with input from the victim. The report did note that some who saw the sketch stated it resembled Allen and did not resemble Avery.
Thus, the early victim identification was fairly accurate in this case. But, the identification was undermined even before the sketch was complete. The courts in upholding the identification process were certainly wrong with their characterization of the identification. Even the court’s reasoning behind elevating the altered identification was questionable. Given the sequence of events as described in the report, the photo array was not valid. It was skewed at the start.
The lineup was also glossed over in the report as unflawed. But, there was only one person in common with the photo array and the lineup ‑ Steven Avery. Further, the lineup was constructed with too great a variance in participants. Avery was the shortest, and his beard was light colored. Avery was in casual work type clothing. Other participants wore suits and/or were substantially taller. A great oversight that was committed by the Attorney General was failure to investigate the lineup participant who looked at Avery during much of the lineup. The relationship of this individual to the Manitowoc County Sheriff’s Department needs to be determined.
Missing evidence can be important when investigating a crime. So missing evidence that would be expected to corroborate an alibi could be important. So the missing cement dust of Avery’s clothes was important because of his alibi that he was pouring cement during on the date of the assault. But, the question is how much dust should be present? Pouring and mixing are two different operations. And were the clothes tested the same as he was wearing at work or did he change prior to driving his family to Green Bay? His arrest came before midnight that day.
Conversely, missing evidence that would verify at least proximity to the assault is important. So the missing beach debris was ignored by all responsible parties, unfortunately including judges. For the report, this issue was not addressed. Yet it is important. Not only for the Avery case, but for other wrongful convictions as well. A flaw in investigations is that the state is the one gathering evidence and unless investigators are diligent, evidence that undermines the prosecution case is not considered or hidden.
The statement that a deputy attributed to Avery to the effect that “they say I killed some woman,” has been considered damaging to Avery. Judge Hazelwood, the trial judge at the trial leading to wrongful conviction, claimed that it was powerful evidence. But, merely guessing will leave a fifty‑fifty chance of guessing the sex of the victim. If anyone mentioned sex during the arrest then, for most males, the probability of guessing female would increase to near one‑hundred percent. So this powerful evidence is not so powerful after all.
The behavior of the prosecutor is strange. He claimed his sense of the person finally identified as the perpetuator was that Allen was a minor offender. That was despite information in the case file that was contrary. Inexplicably, prosecutor Vogel even alibied Allen.
The Sheriff’s claim that he wasn’t aware of Avery is suspicious and should not be accepted. His eagerness to hurriedly include Avery because of a “sounds like” is questionable. He also continued to ignore suspects who were more likely to have committed the crime when these persons were brought to his attention. Sheriff Koucerek claims no one brought any alternative suspects to his attention which was clearly incorrect. When Koucerek personally took charge at the beginning of the investigation there was only one outcome.
The Green Bay, WI Shopko store provided a great alibi for the accused as cash register receipts and eyewitnesses. Investigators who tried to undermine this alibi provided a scenario that wasn’t close to the actual situation. Two adults started from the crime scene, drove over the speed limit, and walked through the checkout in fifty‑seven minutes. They did not have a family, including newborn twins, to contend with. They did not have a receipt with the same items as Avery. The undermining was invalid, unscientific if you will. The fact that the trial judge considered their trip as a plausible alternative to Avery’s alibi is baffling.
So, the circumstantial evidence wasn’t. The victim’s identification was tainted by the process.
We citizens depend a great deal on people in law enforcement. It can be a dangerous job even when not approaching known violent offenders. It can be a tedious job while tracking evidence, researching leads, and observing suspects. We want our police to be skilled, competent, and thorough. For jobs well done, we appreciate. For obvious malfunctions, we do not.
When leadership fails, then wrong people are convicted and the wrongdoers go free. Police gather evidence only that favors the path that has been directed by the sheriff. When the prosecution team stops thinking, then the wrong people are convicted and wrongdoers go free. Courts in the State of Wisconsin tend to favor prosecutors rather than act as impartial triers of fact. The Sheriff’s Department, the Prosecutor, and the courts all played a substantial role in the conviction of Avery. The report minimized the behaviors of the Sheriff and Prosecutor and used the courts to justified the sequence of events.
But, the report did recognize that investigations must be diligent. The report did not go as far as to state even if the courts sanction bad behavior and poor techniques that does not make such activity permissible.
The report concluded that there was no ethical or legal violations by the parties involved in the false imprisonment. But, it the state investigators behave in the same manner toward these members of their community as they do toward poor males, there would be persons indicted.
The report also attempted to use the excuse that DNA wasn’t available at the time of the investigation. There are problems with this.
First, proper investigation is always necessary. To claim that DNA would have altered the outcome gives rise to the concept that all investigations were bogus. It is also like the claim of computer error that used to be very common. People made errors and then blamed the computer. Now the report blames the lack of DNA.
Second is that DNA is not magic. There are errors, too many, in lab procedures. Lab technicians will mislead about the accuracy of DNA without stating that the process is statistical but does not dictate the real world distribution. And, results have been withheld when the result undermines the police and prosecutor case.
Given the behavior of the investigators, sheriff, prosecutor, and courts, I am left wondering. Just how many wrongful convictions there are?
December 17, 2003
Memorandum Wisconsin Department of Justice – Steven Avery Wrongful Conviction
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by Brian McCorkle
in category Steven Avery
