Steven Avery Faces February 5,2007 Trial Date

Jury selection is expected to begin on February 5, 2007 in the criminal case being brought against Steven Avery. Avery is the first person in the U.S. to be charged with a homicide after being exonerated by DNA evidence for a previous crime. The Avery case has had a number of twists and turns. The key chronology is set forth below:

In 1985 Avery was convicted of raping a jogger. In 2003, Avery was released from prison after DNA testing of hairs found at the crime scene did not match Avery. In 2005,  Avery was charged with the rape and murder of Teresa Halbach near his family's salvage yard. Halbach had disappeared after going to the salvage yard to photograph a minivan the family had for sale. Eventually, Avery was charged with first degree intentional murder, mutilating a corpse, possessing a firearm by a felon, first degree sexual assault, kidnapping and false imprisonment. Later, Avery's 16-year old nephew, Brendan Dassey, confessed to investigators that he assisted his uncle in the Halloween crimes. Avery filed a $36 million dollar federal lawsuit against the Manitowoc County, Wisconsin, its former sheriff, Thomas Kocourek, and its former district attorney, Denis Vogel. After being charged with the crimes committed against Teresa Halbach, Avery agreed to settle his federal lawsuit for $400,00. The day after the settlement was announced, Halbach's family filed a wrongful death lawsuit against Avery. On January 29, 2007, a judge dismissed sexual assault and kidnapping charges against Avery because prosecutors could not say for sure whether Dassey would testify in support of those charges. Four charges remain against Avery, including first-degree intentional homicide and mutilating a corpse. As mentioned earlier, jury selection in that trial is expected to begin February 5, 2007.

Dr. Peter Santucci & Dr. Charles Wetli - Experts for Defendants in Thompson v. City of Chicago, et al.

In Thompson v. City of Chicago, et al. (Case No. 04-3177) - a case where James Thompson died while struggling with police officers. The Cook County Medical Examiner ruled Thompson's death a homicide, concluding Thompson died due to asphyxia resulting at least in part from a "choke hold." (This case is discussed in other entries on this blog). The defendants called the following expert witnesses:

Dr. PETER SANTUCCI - a cardiac electro-physiologist and assistant professor at the Loyola University Medical Center -  testified that James Thompson's heart was irregular due to severe cardiomyopathy, hypertension, and obesity.

Dr. CHARLES WETLI - Chief Medical Examiner and Director of Forensic Sciences for Suffolk County, New York - testified that Thompson died from cardiac arrhythmia precipitated by his severely compromised heart and the physical exertion associated with his altercation with the police.

Dr. Kris Sperry and Dr. Geoffrey Alpert - Experts for Plaintiffs in Thompson v. City of Chicago, et al.

In Thompson v. City of Chicago, et al., the jury found in favor of the defendants and the Seventh Circuit recently affirmed the district court's rulings on certain motions in limine. (Case No. 04-3177). In that case, the plaintiff called the following expert witnesses:

Dr. KRIS SPERRY  (forensic pathologist) - Chief Medical Examiner for the State of Georgia - who testified that the pressure applied to James Thompson's neck initiated a fatal heart arrhythmia. However, Dr. Sperry also conceded that Thompson's pre-existing heart disease and the presence of morphine in his blood also contributed to the fatal arrhythmia.

Dr. GEOFFREY ALPERT - professor of criminology at the University of South Carolina - who testified that the police officers were not authorized to use lethal force against Thompson under Chicago police procedures in place at the time. Rather than a choke hold, Alpert testified the officers could have used pepper spray, tackled Thompson, or used a baton below the waist.

Thompson v. City of Chicago - Seventh Circuit Affirms Motion In Limine Rulings

On December 5, 2000, James Thompson died after he struggled with police officers who were trying to handcuff him. The Cook County Medical Examiner ruled Thompson's death a homicide, concluding that Thompson died at least in part from a "choke hold." Thompson's mother and wife filed suit in the Northern District of Illinois against the City of Chicago and eleven Chicago Police Officers. The plaintiffs alleged that the defendants violated Thompson's Fourth and Fourteenth Amendment rights by using excessive force. Prior to trial, the defendants filed several motions in limine including motions seeking to bar the plaintiffs from introducing: (1) the opinion testimony of officers from the CPD's Office of Professional Standards concerning their investigation into Thompson's death and (2) the CPD's General Orders, practices and policies (or the Officers failure to act in accordance with those Orders, practices and policies). The District Court judge, the Honorable Amy J. St. Eve, granted the motions and the case proceeded to trial. The jury found in favor of the defendants. Plaintiffs appealed, claiming the District Court erred in granting the motions in limine. On appeal, the Seventh Circuit affirmed. The court held that "[i]n this case, the text of the CPD's General Orders pertaining to the use of force would not have been of any consequence whatsoever and would have failed to advance the inquiry into whether Officer Hespe violated Thompson's Fourth Amendment rights by using excessive force in apprehending him." The court stated that "[w]hether Officer Hespe's conduct conformed with the internal CPD General Orders concerning the use of force on an assailant was irrelevant to the jury's determination of whether his actions on December 5, 2000 were 'objectively reasonable' under the Fourth Amendment." Finally, the court affirmed the District Court's exclusion of expert testimony concerning excessive force, stating "whatever insight Inspector Lukas and Sgt. Campbell might have had into whether or why Officer Hespe used excessive force would have been of little value except as to possibly causing confusion and bore a substantial risk of prejudice." The opinion was authored by Judge Coffey and joined by Judges Evans and Williams.

Judge Kennelly Vacates Steven Manning's $6.5 Million Judgment Against FBI Agents Gary Miller And Robert Buchan

In a 15-page Memorandum Opinion And Order dated December 26, 2006, District Court Judge Matthew F. Kennelly granted the motion of FBI defendants Gary Miller and Robert Buchan and vacated the $6.5 million judgment that plaintiff Steven Manning had received. Manning had sued the two FBI agents for violating his constitutional rights and had also sued the United States under the Federal Tort Claims Act (FTCA) for common law torts. The claims were tried together. The claims against the FBI agents were tried to a jury and the FTCA claim was tried to the court.  The jury found in Manning's favor and awarded him $6.5 million in damages. The court took the FTCA claim under advisement and  subsequently  ruled in favor of the government. Based on that ruling, the FBI agents moved to vacate the judgment against them.  The agents relied upon 28 U.S.C. 2676, which states that "The judgment in an action under section 1346 (b) of this title shall constitute a complete bar to any action by the claimant by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." The court agreed with the defendants that the entry of judgment in the government's favor on the FTCA claim eliminated  the earlier judgment in Manning's favor on the Bivens claims.  The court noted that had Manning asked to withdraw his FTCA claims following receipt of judgment on his Bivens claims, before the Court had decided the FTCA claims, the Court would have likely allowed him to do so. Judge Kennelly stated that "Presumably he acted as he did because he believed that the risk of losing his Bivens judgment was outweighed by other factors. But whatever the reason, the choice was a strategic decision which cannot now be undone."