When Chances Collide; DNA & "Exoneration"; Suggestibility & Gullibility

WORLD & NATION BRIEFS, Newsday (November 12, 2005) p. A17:

A Wisconsin man who spent 18 years in prison for rape until being exonerated by DNA evidence in 2003 will be charged with killing a woman whose vehicle was found near his home, a prosecutor said Friday. Steven Avery's blood was found inside Teresa Halbach's sport utility vehicle, said Calumet County District Attorney Ken Kratz, who plans to charge Avery by Tuesday. Avery has denied involvement in the disappearance of Halbach, 25, who was last seen Oct. 31. The freelance photographer had three appointments that day to take pictures of vehicles for sale, including one at a salvage yard owned by Avery's family in Manitowoc County, about 25 miles south of Green Bay.

Transcript from Nancy Grace Show, "Prosecutors Zero in on Suspect in Murder of Teresa Halbach," (November 11, 2005):

RICHARD HERMAN, DEFENSE ATTORNEY [for Avery]: Well, Harris, I have to pick myself off the floor here because Wendy [Murphy] just blew me away. I got to tell you something. There`s not going to be a new trial in the old case because he was completely vindicated. Vindicated! It was reversed. The conviction was reversed. He was wrongfully imprisoned for 18 years.

The Innocence Projects do wonderful work. But perhaps this case shows (again) that great care should be taken before claims are made that this or that DNA "proves" this or that man's (or woman's) innocence. There is no conclusive proof of innocence (or guilt). See P. Tillers, DNA Redux to the Fourth Power: Thoughts Inspired by -- but Not necessarily Faithful to the Facts and Recent Developments in the Central Park Jogger "Wilding" Case, in Tillers on Evidence and Inference (blog), September 8, 2002.
P.S. Headline: Steven Avery Receives Standing Ovation from Wisconsin's Assembly and Senate Judiciary Committee. Steven Avery and the woman he was (wrongfully?) convicted of raping 20 years ago -- Penny Beerntsen -- testified before the Assembly and Senate Judiciary Committee of the Wisconsin legislature. Avery's case was apparently a kind of cause celebre in Wisconsin and it apparently became a fulcrum for an effort there to pass legislation to improve pretrial identification procedures. After they testified, both Avery and the woman whom he had been (wrongfully?) charged with raping "received standing ovations from the committee members and others in attendance." David Ziemer, Legislature holds hearing on Avery Task Force reforms in Wisconsin, WISCONSIN LAW JOURNAL (September 14, 2005).

I can't help wondering if the truly-unfortunate Ms. Penny Beerntsen still thinks that the lineup identifications used in her case mistakenly led her to identify Avery as the culprit. Ms. Beernsten was apparently persuaded that her initial recollection and belief that Avery was the rapist was wrong. The Wisconsin Law Journal, id., reported, "Yet even though [Ms. Beernsten] knows that Avery was not the one, she still sees his image when she recalls the attack, so suggestive were the identification procedures then in place, and still in place throughout the state." The Avery-Beernsten case may yet demonstrate that suggestive procedures may lead witnesses to incorrect conclusions -- but, if so, the lesson here may be that well-intentioned and passionate reformers are also capable of implanting false thoughts in the minds of witnesses. This case really may prove to be a terrible twist of fate -- and of human gullibility (in many places).

P.P.S. The malefactor who killed Teresa Halbach apparently burned her body in an effort to destroy the evidence. But the effort at evidence destruction was not entirely successful -- burned bone, teeth, and blood were found in Halbach's car -- and the body parts and fluids that remained after the fire were apparently such that at least some DNA testing could be done on them. DNA apparently plays a role in the Avery-Halbach homicide case in another way: DNA testing strongly suggests that Avery was the source of some of the blood found in Teresa Halbach's car. This evidence suggests that sometimes it may be appropriate to say:

If you live by DNA, you may also die by DNA