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November 23, 2005
The Innocence Project's Single Guilty Secret

The Innocence Project has a number of groups that use DNA and cold-case techniques to prove the innocence of death-row inmates and lifers. They have freed scores of prisoners over the years through the use of scientific re-examination of the physical evidence of the crimes. Most of the people freed won compensation from the states which wrongfully convicted them of their charges, allowing the released to come back into society.

Of 163 people released because of the Innocence Project, only two have faced new charges of serious felonious behavior after his release, and one cost a young woman her life. Consider the strange case of Steve Avery:

Two years ago, Mr. Avery emerged from prison after lawyers from one of those organizations, the Wisconsin Innocence Project at the University of Wisconsin Law School, proved that Mr. Avery had spent 18 years in prison for a sexual assault he did not commit.

In Mr. Avery's home county, Manitowoc, where he was convicted in 1985, his release prompted apologies, even from the sexual assault victim, and a welcoming home for Mr. Avery. Elsewhere, the case became Wisconsin's most noted exoneration, leading to an "Avery task force," which drew up a package of law enforcement changes known as the Avery Bill, adopted by state lawmakers just weeks ago.

Mr. Avery, meanwhile, became a spokesman for how a system could harm an innocent man, being asked to appear on panels about wrongful conviction, to testify before the State Legislature and to be toured around the Capitol by at least one lawmaker who described him as a hero.

But last week, back in rural Manitowoc County, back at his family's auto salvage yard, back at the trailer he had moved home to, Mr. Avery, 43, was accused once more. This time, he was charged in the death of Teresa Halbach, a 25-year-old photographer who vanished on Oct. 31 after being assigned to take pictures for Auto Trader magazine at Avery's Auto Salvage.

After her family searched for Ms. Halbach for days, investigators said they found bones and teeth in the salvage yard, along with her car. In the car, they found blood from Mr. Avery and Ms. Halbach, they said. They also found her car key in the bedroom of his trailer, they said, and, using the very technology that led to Mr. Avery's release two years earlier, they said they identified Mr. Avery's DNA on the key.

Avery went from poster boy to persona non grata in an instant. Once the toast of political circles, his name disappeared off of reform legislation and promotional material for the groups pressing for freedom for the wrongfully convicted. The family of the slain woman blames the Innocence Project for springing Avery. They point to a string of felony convictions that led to his earlier and disproven rape conviction, which the Innocence Project's volunteers had gotten overturned.

All of this is understandable, given the circumstances that exist now. However, American jurisprudence does not judge potential criminality, but actual guilt. Despite the alleged backslide of Steve Avery, freeing him on the basis of bad evidence is no less correct than it was two years ago, when he first walked out of prison. And while the Innocence Project probably wishes it had never heard of Avery now, they have nothing to do with the death of Teresa Halbach. Only the murderer holds that responsibility, even if it is Steve Avery.

The only problem came with how Avery got treated after his release. Given his previous track record, it seems likely that Avery would re-offend at some point with some sort of criminal behavior. Those involved should have known better than to attach his name to all sorts of causes and reforms. Celebrating recidivist felons for any reason runs those risks.

But knowing what we know now about his rape conviction, clearly Avery should have been released. He was serving no other sentence other than the one related to his rape conviction, and once that evidence was shown to be in error, the conviction had to be reversed and Avery released. American jurisprudence requires us to look at each crime in its own context, and not merely say, It's close enough. Justice will never achieve perfection in this world, and all we can do is pass laws that give us the best chance for an unimpassioned review of the evidence so that we can render the best judgment possible.

It's precisely that limitation that makes us keep looking for the best possible science in reviewing the evidence, and for groups like the Innocence Project to review our past convictions in light of the better tools at our disposal. When we make mistakes, we do our best to make it right. If those freed by that process go out and commit new crimes, the responsibility for those crimes do not fall on those who righted a past wrong, but on the criminals themselves. We should take care not to romantacize either the wrongfully convicted nor those who work on their behalf. As the Avery case proves, all are fallible in the end.

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Posted by Ed Morrissey at November 23, 2005 6:12 AM

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