Photo enhancement technology gives armed robbery suspect a new
The circuit court erred when it weighed the credibility of competing
experts who used new technology to examine video surveillance tapes to
determine the height of the defendant.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
2011 – Brian Avery, convicted on armed robbery charges in the
1990s and sentenced to 30 years in prison, will get a new trial thanks
to digital imaging technology not available at the time of his trial, a
Wisconsin appeals court has ruled.
In 2007, Avery filed a motion for post-conviction relief based on newly
discovered evidence. The new evidence was derived from a new method of
digitally enhancing video surveillance, known as Video Image
Stabilization and Registration, developed by NASA. It allows examiners
to ascertain the height of individuals in surveillance videos, among
A jury saw “grainy” video surveillance tapes of the
robberies and pinned Avery on two separate armed robberies, weighing
other evidence at trial.
But a digital enhancement, known as a photogrammetric analysis, using
the new technology showed the robbery suspect was actually several
inches shorter than Avery.
Two experts testified, one for the state and one for the defense, about
the precise height of the individual (thought to be Avery) captured on
video during one of the robberies. The defense expert testified the
suspect could not be six feet, three inches (6’3”) tall,
The state’s expert testified the suspect appeared shorter,
between 5’11” and 6’1 ½", but noted that
other variables made it possible the suspect was 6’3”. The
circuit court denied Avery’s motion for a new trial after weighing
the expert testimony.
A new trial is warranted, Avery argued, because this new evidence,
along with other evidence, could place a reasonable doubt in the
jury’s mind about his involvement in the robberies. In State
v. Avery, 2010AP1952 (Oct. 4, 2011), the District I Court of
“By concluding that [the defense expert’s] opinions were
‘not reliable enough’ to entitle Avery to a new
trial, the trial court gave one opinion from a credible witness greater
weight than a competing opinion from a different credible witness”
wrote Judge Joan Kessler. “A trial court applies an incorrect test
when it weighs competing credible evidence.”
The trial court should have determined whether there was a reasonable
probability that new evidence would create doubt about the
defendant’s guilt, the appeals court explained.
“Simply put, if the jury believes the new evidence from
Avery’s expert, then it would conclude that Avery could not be the
man in the video,” Judge Kessler wrote.
The appeals court also ruled that Avery was entitled to a new trial
under Wis. Stat. section 752.35, which gives a court of appeals
discretionary reversal authority if the real controversy has not been
fully tried. The real controversy, Avery’s involvement, was not
fully tried, the court explained, because the jury did not hear the
The circuit court had ruled that new evidence would not destroy the
state’s case against Avery. But the appeals court noted that
“[n]o Wisconsin case interpreting [section 752.35] requires that
the defendant’s new evidence” totally destroy the