Vol. 78, No. 7,  July 2005

• Tax delinquent attorneys could face sanctions if new State Budget Bill passes

• Legal groups receive grants for helping low-income individuals

Avery Task Force examines wrongful convictions, new study commission to examine criminal justice system

The Avery Task Force has completed its work on several reform issues to improve the accuracy and efficiency of the criminal justice system. The task force, appointed by Rep. Mark Gundrum, Wisconsin Assembly Judiciary Committee chair, was created to examine the causes of wrongful convictions and other ways to improve the criminal justice system to ensure conviction of only the guilty.

The task force, comprising Republican and Democrat legislators, judges, prosecutors, defense attorneys, police and sheriffs, academics, and a victim advocate, was established in 2003 after Steven Avery was exonerated after serving nearly 18 years in prison for a sexual assault that he did not commit. The State Bar Criminal Law Section provided funds to bring to Wisconsin several key experts, including former U.S. Attorney General Janet Reno, whose testimony helped the task force do its work.

At its final meeting in June, the task force considered draft legislation related to the recording of suspects' statements. The proposal would establish a grant program to assist law enforcement agencies in purchasing equipment for recording statements during custodial interrogations. The grant program would be funded by a 1 percent increase to the penalty surcharge under Wis. Stat. section 757.05(1). The proposal also would make it a "state policy" to record custodial interrogations. The committee recommended that the policy apply only to felony cases for adults and juveniles.

Introducing statements during trial that do not comply with the new recording policy could result in specific jury instructions if requested by the defendant. In such circumstances, the court could instruct the jury that state policy requires custodial interrogations for felonies be recorded and that the absence of a recorded statement be considered when evaluating that statement in evidence. Exceptions to this provision include equipment failure, the defendant's refusal to cooperate with the recording, or public safety exigent circumstances.

The proposal specifically provides for admitting into evidence a statement that was recorded without a defendant's consent. The committee also discussed the effect of the state's Open Records Law on taped testimony, concluding that the recordings would be kept confidential while the case is pending.

Final task force recommendations likely will include legislation related to DNA testing, the adoption of guidelines for eyewitness identifications, and the use of recorded testimony. Gundrum plans to introduce the recommendations before the legislature adjourns next spring.

While the official work of the task force has concluded, the process continues with the establishment of a Criminal Justice Study Commission. The original partners in this endeavor, the State Bar of Wisconsin and the University of Wisconsin and Marquette law schools, have been joined by the Attorney General's office to develop a broad-based coalition to continue examining practices and procedures within the criminal justice system. The commission will be staffed by Byron Lichstein of the U.W. Law School and will begin work later this summer.

The Avery Task Force model guidelines and recommendations are available at www.law.wisc.edu/fjr/innocence/averytaskforce.htm. However, finalized drafts of proposed legislation to be recommended by the task force and a committee report have yet to be completed.

Legal groups receive grants for helping low-income individuals

Centro Legal por Derechos Humanos, the Legal Aid Society of Milwaukee, Legal Action of Wisconsin, and the Wisconsin Coalition for Advocacy each received a check for $10,000 from Attorney General Peg Lautenschlager on behalf of the Wisconsin Department of Justice (DOJ). The funds will help the organizations to further their work in providing legal assistance to low-income individuals. The DOJ obtained the funds from settlements in enforcement actions.

"Fiscal constraints, including the significant decrease in grant availability, are severely impacting the funding of legal services to those in need," said then State Bar President Michelle Behnke. "Without competent legal representation, individuals with basic human needs and problems often find themselves without remedies. This funding will help those in need."

Wisconsin Lawyer