- Welcome everybody to Wednesday Nite at the Lab. My name's Tom Zinnen. I work here at the University of Wisconsin-Madison and for UW Extension Cooperative Extension. And on behalf of the Wisconsin Alumni Association, I would like to welcome you to Wednesday Nite at the Lab. Tonight we have John Pray, who will be talking with us about the Wisconsin Innocence Project. John is a clinical professor at the Frank Remmington Center of the University of Wisconsin Law School, where he has worked since 1986. In 1998, he and Professor Keith Findley founded the Wisconsin Innocence Project, which they co-direct. In recent years, the Wisconsin Innocence Project has been responsible for the exoneration and release of ten inmates in Wisconsin and other states, after DNA or other evidence established their innocence. John also teaches in the Law School's Criminal Appeals Project, which works on the appeals of recently convicted defendants. 

John is a 1971 graduate of Cornell College in Iowa, and a 1986 graduate of the University of Wisconsin Law School. He also tells me he's from Littleton, Colorado. So if you've ever been to Littleton, Colorado, he grew up there. Please join me in welcoming John Pray to Wednesday Nite at the Lab. 
(applause)
 
- Welcome everybody. I hope the mic is on. As Tom just said, I do work for the University of Wisconsin Law School, and it's clinical program, where we take law students and learn about how law really is in the real world. Instead of sitting in classrooms, we try to get the students out. 

We do get the students out, to sitting in prisons and talking to prisoners about their cases. And as you can imagine, prisoners have all kinds of legal issues and things they would like to have worked on. And we find it's a great environment to teach students about how to apply the law and how to learn about the law. And also, there's a lot of worthwhile things that we think we can do on behalf of people that really don't have other access to legal services. The Wisconsin Innocence Project was created in 1998 by Professor Findley and myself. So we're on our tenth anniversary now. It's part of a larger national movement. When we started in 1998, there were maybe three or four Innocence Projects around the country. And it has exploded to having about 35 of them now. And that's largely because they have found a lot of people innocent of crimes. 

And there has been a lot of progress in this area. Our mission, of course, is teaching, teaching law students how to work in law. Research on finding out, how do these things happen. How do people go to prison when they didn't do anything wrong, when they're 100% innocent. And then, how can we improve the justice system to make sure that kind of thing is, if not eliminated, at least reduced to a bare minimum. So there's all kinds of things that we can learn from these cases that we hope can improve the system. Well, I'm in the right building here. The Genetics and Biotech area. When I came in tonight I saw a model of the DNA molecule, so I probably don't need to tell people in this audience that in 1953, Watson and Crick disclosed the structure of the DNA molecule, which is this sort of double helix, like a twisted ladder type thing. And that opened up tremendous new fields of science, which I'm not really going to talk about tonight. 

But it told us much more about how genetic information is passed down. And it's passed down, because in these helixes, there's about three billion base pairs of these chemicals that are unique to each individual, and pass on information. Well, there's several unique properties of DNA that we find useful in the field that I'm involved with. First of all, just to kind of refresh your biology here for a moment, it exists in virtually every cell of your body. It seems like a rather redundant kind of thing, that every single, tiny little cell in my body has the blueprint for my entire body. But that's actually how it works. The entire genome is in almost every single cell. There are a few exceptions to that. But almost every cell. Not only that, but it's unique to every person. 

Nobody has the same genetic makeup. Except, there's one exception to that, your twin or your triplet. They do have identical DNA. It preserves fairly well. That's important for the uses we're going to be using it for. Now, the use of DNA in solving crimes really wasn't advanced until about 1986. And at that point, the first use of it, it was used in England. Shortly thereafter, it skipped the pond to the United States when people realized the potential for DNA to solve crimes. Well how does that work? Well first of all, very, very minute quantities of DNA is enough, like I say, it's in every cell, so just the smallest amount of DNA, one cell, may be enough to get genetic information for who left that cell. 

It can come from all kinds of substances, blood, hair, semen, saliva, sweat, urine, skin. All those items are easily, can be easily left off the body and left at the scene of a crime. And, of course, they can be matched to a suspect. If there's a suspect in a crime, you can get the DNA that was left at the scene of the crime, get the DNA for the person you suspect. And if it's a match, it's a match. Very, very good likelihood that that person left the DNA, since it's virtually unique. We also, even without knowing the suspect, we can match it to a database. The genetic makeup of millions of people is in a database that's kept, mostly criminals and anyone who goes to prison is going to have their DNA profile known. And so, if you go to a scene of a crime and you find some blood, or hair, or skin, or something that's left behind, you can run it through to see if any of those prisoners or anyone whose DNA is on file matched to that crime scene evidence. And of course, it's just as important to exclude people. 

It can definitively exclude that that cell that was left at the scene of the crime could not have been left by this person. Well, because of DNA and because of the power of that DNA, there have been exonerations. And you probably have read about some of these in the paper. You see them on 60 Minutes, Dateline, or these programs every now and then. And to date, this is as of today, 217 DNA exonerations in the United States since the first use of it which was in 1989. Fourteen of those, at least, are from death row. And we've had three of them in Wisconsin as well. Well, have we fixed the problem? Now that we're using DNA, if you are involved in a crime, or if police go to the crime scene, they're going to find DNA that might have been left behind. They're going to test for fluids, blood, and those kind of things, and they'll test it now. 

So, it's tempting to say we have fixed the problem and none of those people, those 217 people who were innocent, or sent to prison, none of those people, presumably, would be convicted today if they were arrested. Because they would do the DNA testing up front and fix the problem. So from that, it's very, very tempting to say, well this is a problem that we have found a solution, and we can move on, and we don't need to do much else about that. And there's a problem with that. And the problem with that is that it's the tip of the iceberg, those 217 people. It's a reflection of very few of the crimes. And why is that? Well, think about the crimes where DNA is likely to be left behind. What do you think it would be? Rape. 

Sexual assault. That's the number one crime. People, rapists tend to leave DNA behind, generally semen, but it can be other substances as well. So that has been a primary for looking at that kind of evidence to see who left that evidence. Homicide can be bloody, it can be fights. You can easily leave skin or blood behind. So almost all of those 217 exonerations have been for crimes of homicide and sexual assault. I don't have an exact number. But it is the vast majority of them. Well, what don't we get any evidence on? 

Robbery. Most robberies, you don't leave biological evidence behind. Burglary, drive-by shootings, forgery. The fact is, for most crimes, the perpetrator does not leave any DNA evidence behind. So if you think about it, we have proved the innocence the 217 people who are convicted of sexual assault and murder almost exclusively. What about the robberies? Is there any reason to think that there aren't as many or more people who committed a robbery, but didn't leave something behind to prove their innocence? Of course, not. Robberies are generally proved by eyewitness identification. The clerk of the convenience store, for example, recognizes that person, picks him out of a lineup or something. 

And if they say that's the person, that's pretty much all you need for the conviction. And that's what got a lot of sexual assault suspects incarcerated as well. But then DNA later proved their innocence. The trouble with the robbery ones, is there is not going to be DNA or anything that's going to be able to fix that problem. So we really have to look back and say, we haven't solved that problem. We need to change some fundamental things in the criminal justice system and not just depend on DNA to be able to catch all of our mistakes. Because it just isn't going to be able to do that. Yes, ma'am? 
- Do you think that part of the problem, like with robbery, burglary, and some of that, is a matter of evidence collection strategies? I mean, is there really no DNA left behind, we just haven't? 

- It's a good question. The question is in these robbery, burglaries, why aren't we getting biological evidence? I think there's two reasons. One reason is those crimes are not investigated as thoroughly. If your house has been burglarized, you're probably going to get a police officer to come down and take inventory of what was missing. But they're probably not going to come in and do massive DNA testing of every hair on the carpet. They're just not going to do that. They just don't have the time or the resources to be able to do that. But also, it's true that those crimes are much less likely to leave behind DNA evidence, as opposed to the murder and the sexual assault charges. So we need to learn lessons from these cases to make it less likely. 

And one of the things we've learned, you can look at that 217 cases and say how have these occurred. What are the problems that created innocent, totally innocent people, to go to prison? Well, eyewitness error. It may not surprise people, I don't know if it does or not. Eyewitness error is by far the largest single cause for conviction of the innocent person. They just get it wrong. And I'm going to talk about it a little bit later tonight about how that happens. Second, false confessions. It's somewhat counterintuitive, why someone would confess to a very, very serious crime when he or she did not commit that crime. But these cases have proven that that happens way more than we think. 

And we can look at the reasons why that happens. And I'll be talking a little bit more about that. There's also erroneous forensic science. Some of the sciences that we have relied on to prove that someone was at the scene of a crime, once we get DNA, we can show that those were not reliable at all. There's a lot of cases where someone was placed at the scene of the crime because of hair analysis evidence. They took hairs and looked in microscopes, and said yes, it looks like it belongs to that person. DNA then can come up and get a much better view. Is this hair really from this person? And the DNA shows so many times they got it wrong. They thought it was the right person, but it was wrong. 

And this pattern is not only on hair, but bite impression type of evidence, on arson type of evidence, a lot of scientific evidence has been proved to be wrong by DNA. So that's apparent in a third of the cases. Jail house snitch testimony. There are a lot of cases where people are convicted by the testimony of a cell mate or someone who came in. And they said the guy confessed to me. And it's always been known that's unreliable evidence, but these cases prove, in many of these cases, that's what happens. Someone, a cell mate, got up and said he confessed to me, and that was a component as to why they were convicted. There's also prosecutorial, police misconduct. And finally inadequate defense counsel, who do not ask the probing questions, do not search for ways to really get at the bottom of what happened. And tunnel vision. 

tunnel vision is the process by which police and prosecutors, I guess we all, it's a human tendency, to latch on. We think we've got the right person. And from then on, we tend to ignore evidence to the contrary and think that's just an aberration. And so we latch on very, very quickly to what we think happened and ignore other evidence. And that's present in many cases. Let me tell you about one of the cases the Wisconsin Innocence Project. I'm going to talk about two cases the Wisconsin Innocence Project has been involved with. First, and you may have heard of both of these in the news, if you've been following the news the last few years. Chris Ochoa is the first one I want to talk about, very briefly. Chris was, this happened in El Paso, Texas. 

And in 1989, there was a very, very brutal crime of a young mother who had gone into a Pizza Hut restaurant, where she was the manager. And she was alone, making pizza for the day, getting the dough ready. And someone, around 8:30 in the morning came in, and all they know, is about two hours later, she was lying in a pool of blood, had been sexually assaulted and murdered with one shot to the head. Very, very brutal crime. There were no witnesses. And for several weeks, they could not find really any good leads to this thing. Well, Chris Ochoa who is obviously the man there, the boy there, that's when he was a child with his mother. Chris Ochoa, about a month after this crime occurred, he happened to go, like anybody could have done to the Pizza Hut where the murder occurred. This was very high visibility news in Austin, Texas. And they were sort of on the lookout for any kind of suspicious behavior. 

And Chris Ochoa happened to go in that restaurant with a friend of his, Richard Danziger, a month after the murder. And they were seen to be somewhat unusually curious about the crime. And they asked the security guard there where did the crime occur, where was the shooting, where was the body found. And they were asking some questions that just raised the suspicion of the security guard. Not a big deal. It could have really happened to anybody. And it wasn't totally extraordinary. But it was just enough to trigger the security guard to get the license plate, call the police and say, I saw something, just I thought you should know. Well the police came down and picked up Chris the next day. Brought him into the police station, and asked him some questions. 

And for whatever reason, it's difficult to kind of figure out, exactly what happened. But Chris tried to explain that he didn't know anything about it. But they viewed it as suspicious acting behavior. He had never been in trouble before. He had been an honor student in high school. He had never really been talked to by police before. And maybe just his naivety, and just the way he was acting, somehow got the police officer doing the interrogation to somehow think this guy knows something. And he kept pressing and kept pressing and kept pressing. And over the next two days and many, many hours of interrogation, he convinced him that they had real evidence against him, they knew he had done this crime, that they had eyewitnesses that saw him there, that his partner was in the next room confessing to the crime against him. And over a period of hours and hours, Chris finally got the idea that he isn't just going to be able to walk out of here. 

That they were somehow going to be able to convict him on this made-up evidence. That was all lies by the way. There weren't eyewitnesses. And his partner wasn't in the next room saying anything about him, it was all lies. But he became convinced that he wasn't going to just be able to walk out of this nightmare that he was facing. In Texas, this is, as you probably know, there's the death penalty. And this was a high visibility crime. And they convinced him that if he did not confess to his role in this crime, he was certainly going to die with a needle in his arm, and be executed for this crime. He would never see his mother. At some point, they said, you are going to be put in the jail, where you'll be seen as fresh meat by the other prisoners. 

He took that to mean that they're going to rape me. That's what to him, "fresh meat" meant. Eventually, he started saying some things to try to get himself out of that situation. The story metamorphosed. And I won't go through every phase of it. In the end, after two days of interrogation, he confessed that he had been the one in there, with his friend Richard, that was the other guy who was at the restaurant with him. And that he had gone in there, they had shot this woman, they had raped her about six times, and shot her in the head and left her for dead. And she did die. And of course, she wasn't able to give any kind of description. So, he was promised that if you confess to this and if you testify against your friend Richard, we will spare your life. 

And this is the only way it's going to spare your life. He was sentenced to 12 years in prison. There he is in prison with his parents. Well, as you can probably know, this story has a happier ending. About ten years after he was imprisoned, he wrote our program a letter at the Wisconsin Innocence Project saying, I'm in here for a crime I didn't do. There may be DNA. I don't know if there is or not. Can you help me out. We were fortunate enough to be able to locate the DNA and to help him out, and to get DNA tests on semen that was in the victim's body that was known to be left by the murderer. The test revealed that it was not his or Richard's DNA. 

Instead, it belonged to another inmate, who had actually been confessing to this crime for several years, but hadn't been paid any attention to. He had written letters to various authorities, saying, "I don't know who those guys are in prison for. I did this crime." But, you can imagine that those were ignored. Why? We had a confession from Chris. This guy must be a kook. Well, turns out, it was his DNA, and so everything matched up. They later found the gun at this guy's house, and all kinds of evidence. So there was just no doubt about that Chris and Richard were both innocent. 

This is the day, in 2001, when Chris was released by the judge that you see sitting behind him, hugging his mother. So it was indeed a happy day for Chris. The end of the story for Chris is that after he got out of prison, after serving 12 years, he decided to finish up his education, finished up his Bachelor's at University of Texas, El Paso. And he applied to law school, of all things. And of course, he wanted to come to Wisconsin, because we had been instrumental in getting him out. And so he did, in fact, come to Wisconsin Law School. There he is at the law library, studying. And there he is graduating. This is two years ago now. He graduated two years ago. 

He's now an attorney in Madison, taking criminal cases. And so, if you ever had thoughts about well, you'd have to be kind of an idiot or something to confess to a murder you didn't do, you can think again, as you can see. It is more likely if you have mental deficiencies, but it can happen to anybody. If you become convinced that you're going to die, if you don't do what he did. So there's a happy ending on that one. What the lessons we learned from that case? Well, we know that innocent people can be coerced to confess. And that happens more often than we thought. The harm is to the victim. And, of course, while they had him, the wrong guy in prison, the real guy, a guy named Merino, was out committing other very, very serious crimes. 

A few years later, he was caught, which is why he was in prison when this ended up. But he was out for years after that committing very, very serious crimes in the state of Texas. So it is a public safety issue. When they get the wrong guy, the real guy is out there still able to commit crimes. It teaches something about the distorting effects of the death penalty, because that was used as a weapon against him. If you don't confess, that penalty--. Yes? 
- What made the real perpetrator confess, if he's such a heinous person? 
- He said he found God and was born again. So at that point in his life, he started writing letters. 

He wrote letters to Governor George Bush, he wrote letters to the DA, and wrote letters to the newspaper, but they were all ignored. But that was his reason. He eventually was convicted of this crime. Well, what can we do to prevent this kind of thing from happening? Well the obvious, sort of easy answer, is record interrogations. This was not done in this case. So you never know exactly how did this happen. What happened in that interrogation room. Chris tells me. And I've heard him speak many times at these kinds of forums what happened. 

And I completely believe him, because everything bears him out. But it would be interesting to see exactly what they told him and how this happened. How they fed him the evidence. Because he did know details of the crime. Well, where did he get the details of the crime? They were all fed to him. Every single one of them. And if it had been recorded, we could see that happening. Actually it probably would have deterred it from happening. Any self-respecting police officer is not going to be seen on tape to be giving all the details, hopefully. 

If it had been recorded, this wouldn't have happened. And if it had happened, we could have all seen it. And the jury could have seen it. And it just wouldn't have happened. So that's really, we record all kinds of other events in our life. We're pretty used to it now. You go into a convenience store, you're going to be recorded. You go in almost any building, you've got a camera on you. Why wouldn't we record one of the most important moments in a person's life. Not just the defendant, but the victim. 

Why wouldn't we do that? It protects the innocent, and of course, also benefits law enforcement. Because you can't imagine the number of claims we have from suspects who say, well he beat it out of me. Well, if it's all taped, we can kind of see what actually happened. There has been movement in Wisconsin to correct these things. The State Supreme Court has mandated recording of juvenile interrogations. And there's been legislation mandating it in adults, as well, too. So these kinds of cases make a huge impact on the law. And the law in Wisconsin has been very responsive to this kind of case. Eyewitness error. 

Maybe I should have started with that one in a way, because that is the number one reason the innocent become convicted. I think it was 60-85%. And the case I'm going to talk about now is another case you probably have heard in the news. And it's the case of Steven Avery. You may have heard of Steven Avery for two reasons. One is when he was exonerated. So I'm leaping the story here. And then another is an unfortunate incident, more than unfortunate from two years ago, when he--. Well, I'll get to that in a moment. Let me talk about the crime or what happened in Steven Avery's case. 

This was in Manitowoc. This is lake Michigan. The circle there is where he was jogging along a beach. Oops! That a way. There it is. The victim was a young woman, a mother, jogging along the beach there, and saw someone kind of emerge from the star there. And when she was jogging back, she was alone, broad daylight. The guy grabbed her by the neck and dragged her back into the woods there. Sexually assaulted her, beat her--. 

Senseless, almost killed her. But it was broad daylight and she got a very good look at the guy. And she had been telling herself throughout this, if I survive, I want to make sure I see exactly what this guy looks like, because I know I'm going to be talking to the police. And I know this is important. And I get what it's like. And it was broad daylight, face to face, just inches away from the face for maybe a half hour, quite a long period of time. Very good view. She did survive and she very soon after that was able to have a sketch artist do a sketch. And there's the sketch of the attacker. Okay? 

Well, I'm going to divert for just a moment. One thing we know about sketches, is that they often don't look that much like attackers, like the actual perpetrator. Sometimes they look like almost anybody. In this case, the sketch looks almost exactly like the ABC anchorman in this story. I don't know if he realizes that. 
(laughter)
 But you can imagine the sort of terror that someone might have when you see a sketch in the paper. And all of a sudden, you say, oh, my God, that kind of looks like me or looks like my neighbor, or looks like my son. It's going to look like someone. The question is, how much does it look like the actual perpetrator? 

And studies have shown, not a whole lot. Someone saw this sketch and said well that looks like Steven Avery. And it was a small town. It was Manitowoc. What about Steven Avery? Well, they brought Steven Avery in. And there's his photo. And you can see here, actually it's not the world's worst sketch. I guess you can judge for yourself how similar does that look to him. It's not totally out in left field, but it's, I don't know, you've got to judge for yourself. 

They then had a lineup, arrested him at his house. They put him in a picture array and the victim picked him out. The next day, they put him in a live lineup. The only person that had been in the picture lineup was also the only one here. Can you tell which one he is? He is number 6. It's hard to get a lineup with people that fit the description. Here they had to come up with eight guys that had beards, I guess. And obviously, some of them are desk sergeants. They're not really the right height. 

The guy on the left has glasses on. This guy's got a tie, which is an unlikely getup for probably someone who had done this. In any event, she picked him out of the lineup. The victim did. Well, he went to trial. What was the evidence? Main thing, eyewitness testimony. She testified. Her name is Penny. And she lets us use her name, because she's given lots of speeches like this, with us, to talk about how eyewitness identification can go wrong. 

But she gave very, very powerful testimony. She was 100% sure it was him. She had picked him out of the photo lineup, had picked him out of the live lineup, and had studied him, perfect opportunity to view, and she was sure. And she was a very respected member of the community, wasn't on drugs or alcohol or anything. She is one of the more credible persons you will ever see and hear talk. And when the jury looks at her and she talks like she did, it's almost impossible to say, we think you're wrong about that. How can you about wrong about that? So that was the main thing. But there was other things. There was microscopic hair examination. 

They had a hair on him that looked like her hair. They did the lab analysis and said, yeah, it looks like her hair on him. Against that, there was actually a very powerful defense. He had 16 alibi witnesses. He was seen with family and friends. Of course, that never counts very highly in an alibi situation, because there's always the suspicion they're making this up to help you. But there was better than that. He had a store receipt from a Shopko about an hour after the crime occurred. And the store happened to be in Green Bay, which was an hour drive away. So was it theoretically possible? 

Sort of. But in order to commit this crime, the State, at trial, basically had to say, he had his five kids--. He had five little kids. I'll show you a picture in a second. He had them in the car, pretty much ready to go. He went and sexual assaulted this woman, ran to the car, drove speeding to Green Bay, an hour away. Quickly got the stuff in his cart and then checked out. And they had the receipt and the time he was checked out. He had to do all that in 60 minutes. Was it possible? 

Barely. But I guess it was possible. And the jury believed that it was. And compared to this witness who said it's absolutely him, he was convicted. There's his family, by the way, just a few days before this all occurred. The Shopko person remembered the two little twins who are six days old there. So this is very close to the time that occurred. Well, DNA testing came along. And in 2003, our program looked at this case. We looked at it because we had gotten referrals from his defense attorney and others saying this guy is innocent. 

And they didn't feel good about the trial. They said, I don't know how the jury convicted. Well they knew how the jury convicted him. But they had bad feelings about this. They thought he was innocent. So we looked at any possible DNA you might be able to test in this case. In this case, there was not semen. It hadn't been a completed sexual assault. But we were able to find 12 hairs, when the victim went in, she sort of shook herself down and hairs fall down on a sheet that they collect hairs. Twelve hairs were still existing when we went into the boxes to try to find them. 

Eleven of those hairs were female hairs, so that didn't help us at all. Two hairs were left. One of them didn't have a root. And the root is where the genetic material is. So there was one hair left. And that did have enough DNA material in it to exclude Steven Avery. This is a hair, it was a pubic hair that was found in her pubic area. So it's not something that would just innocently get there. It not only excluded him, but it matched another guy, named Greg Allen. I'll talk about Mr. 

Allen in a moment. But the chances of a random match were one in 251 billion. So it was very certain that this is Greg Allen's DNA on that hair that found its way into Penny Berntstein's pubic area. Also, Mr. Allen fit in other respects. He lived around there. He was highly suspected in other sexual assaults in the area, exposing himself. He was under constant surveillance except for the day that this occurred. And so, everything sort of lined up. And you can ask, so why weren't they suspecting him to begin with? 

That's a reasonable question. Well, the reason is because she had picked him out of the lineup very early on, and from then on, the sort of the tunnel vision set in. And they had their guy. She had picked Steven Avery. In 2003, he was cleared. He served 17 years in prison. Well, who is Greg Allen? Well, there's Greg Allen. Okay? So now you can look at the sketch and see. 

I don't know, you can judge for yourself. Who is the actual perpetrator, is it this man? Greg Allen. Steve Avery didn't do it. So you can see how accurate the sketch is. What are the lessons? The lessons, of course, eyewitness error is a problem. We have tunnel vision. We set in on Steven Avery way too early. There are limits of forensic science. 

The hair analysis was flat out wrong. And again, convicting the innocent meant the guilty go free. Greg Allen was free for a number of years. He eventually found his way to prison a few years later by raping other women. So once again, the wrong guy was in. I'll finish the story. You probably know. Steve Avery got out in 2003. No doubt about his innocence in this case. The DA, the judge agreed and actually, he was released within about a day of getting the results, because it was so obvious. 

There was no debate about that. And sometimes we get people who, based on what happened to Steve Avery, wonder why did you get this guy out? And he probably was guilty of that crime. There is no doubt about his innocence in this crime. What happened two years after he got out, of course, as you probably know, he was arrested for murdering another woman near hism home. He was convicted of that a year ago. And as you can probably imagine, it was devastating for our program to see that. The contrast between what happened in Chris Ochoa's case, where he's a lawyer now, and Steve Avery's case, is about as stark as you can get. That's all I can say about it. It's just one of those things that you can't second guess. 

There's no doubt about his innocence. And if you're innocent, you shouldn't be in prison. But that's all I can say. Yes? 
- What has been said about Avery's inclination after being wrongly convicted and in jail for 17 years. Did that have anything to do with it? 
- Well, you know, you can speculate about what does that do to someone. It's hard enough to serve time in prison for something you did do. And if you serve 17 years for something you didn't do, how might that affect you. It's hard to know. 

From our personal observations of him, he seemed to be a very happy-go-lucky guy, who was always willing to come down and speak to groups like this. He seemed good natured to us. We didn't see any kind of dark side to him, that we could see. But I'm not a psychologist and I don't know. I can only report what we saw, that he was agreeable, happy-go-lucky. He did not have services when he got out. Usually when you get out of prison, you do have parole agents and people who are kind of looking out for you and helping you in various things. Once you're out of prison on something like this, you're basically left to your own devices. He got a small amount of compensation. But he was basically living in a fish shanty, like a little ice, for a period of time. 

He didn't have a lot of support. He was unable to hold a job. So things were difficult for him, for sure. So that's all I can say. What happened? Uh-oh. Oh, dear. I don't want it to hibernate! 
(laughter)
 Come on. 

I guess it's got to go through its thing. You know what? It might help to plug this thing in. I suppose my battery is giving me problems. 
- What percent of computer error causes crimes? 
(laughter)
 
- Computer error. I'm not aware of any. But it probably happens. 

I hope I can get this back now. I should have had this plugged in. But you know, the truth is, there's error in all kinds of areas. Let me see if I can get this back. Almost anything you can imagine, you can make errors. We're human. And there can be errors in almost any discipline you want to look at. And you can try to have a safeguard against those things. All right. 
- Wouldn't you say by not compensating him well? 

- Well, the law provides for compensation for up to $25,000. That's just what the law is. That was a statute written many, many years ago when $25,000 could actually carry you a little while. And that hasn't been changed. There are efforts looking into, can we do something about the compensation statute to help that somewhat. But, of course, what happened to Steven Avery. He's not a good political cause at this point because of what happened. And so, it's hard to know. Okay, well let me take a look a little bit like how did this kind of thing happen. Let's talk about eyewitness identification for just a little bit. 

It can be unreliable. And it's been proven over and over again. People sometimes think that eyewitness, people's brains and eyes work like a video camera. It's all pretty much in there. Everything I'm seeing, like all of your faces to me today, it's somewhere in there and if I could just access it, it might be hard to access it, but with hypnosis or something, it's in there. It's just a matter of getting it out. That's the myth. The truth is it's nothing like a video camera, as far as memory goes. There's a lot of stuff that is filtered by our brains that don't allow all of your faces to get into my brain. Here's an example. 

If you look at this picture, probably most people would say the log on the top is the larger log, right? Why do we do that? Because our brain is putting in other information. That's the perspective of the railroad tracks going back. The fact is, they're exactly the same size. If it's a video camera, you see this as the same size. Since our brain is filtering in other information, it changes that. Here's another example. Looks like the big guy is trying to chase the little guy, right? It's the same effect. 

And as you can imagine, those are both the exact same size, whatever they are. I don't know what they are, Ninja turtles or something, but those are exactly the same size. Once again, our brain is filtering and putting new information in there. Here's one that will get you. Which table is longer? Well, probably most people would say this table is longer. This one's wider. So we've done a little thing. We haven't done any camera tricks or anything like that. We're just shifting that around. 

And you'll see, it's the same exact size. Once again, the brain plays tricks on us. And those are precisely the same size. Why else do we make mistakes? Well, sometimes we expect to see, we have expectations that flavor what we actually end up perceiving. I'm going to show you a picture here. And tell me what you see there. How many see an old woman? All right, how many people see a young woman? Most people see a young woman. 

I don't why you're seeing a young woman, but maybe they're prettier to look at. But let me see if I can do this. Let me start with the old woman. Ah, this is touchy. There's her eye. There's her nose. There's her mouth. Everybody got that? No? Her eye is right there. 

There's her nose. Okay? You all see the old woman now? 
(laughs)
 Eye, mouth, chin. She's got a little bump on her nose. Okay? Got it now. All right, for those who maybe are wondering, well, I don't see the young woman, let's see if I can do this. That is now the ear. 

There's her eye, basically, a profile with a nose. And this is a necklace on her neck. Okay? So it's an ambiguous picture that could be either one. Well, if I was telling you a story about an old lady in the woods or Hansel and Gretel, or something like that, you'd be more likely to see this and you'd see the old woman first. If I was telling about a beautiful, young princess, or something, a story like that, probably your brain would see it as something else. Of course, it's the same imagine coming into your head. But you see it and you have expectations. And that kind of thing works all the time in what people see when they see criminals committing crimes. There's a degree of what they expect to see. 

You see what you expect to see. Yes? 
- I was just thinking about something they teach in photography class, is that your eye is attracted to the lightest area first. So if the old lady was light and the young girl was dark, people would probably see the old lady first. 
- Yeah, there's ways you can manipulate that. I can't remember whether most audiences see the old or young. Yeah. Okay. Furthermore, not everything we see registers in our brain. There's all kinds of things. 

I told you will about all of your faces registered in my brain. No way. There's all kinds of things that don't get taken in. How many times have we seen pennies in our lives? Well, thousands and thousands of times. How many can pick out what the real penny is? I doubt. You know, what, are there 15 there, I bet they're almost equally picked. There's nobody that knows which one it is, very few. Because you've seen it, but you don't take it in. 

It's information that's out there that doesn't register. Okay? I think the correct answer is "A" in case you're wondering. Let me try something else here. I'm going to ask you. This is a test in focus and concentration. And I want you to concentrate on this. This is going to be a moving video. There's two teams. There's a team in black and a team in white here. 

And they're going to be passing basketballs back and forth. And what I want you to do is to take a look at the team in white and count how many times they pass the basketball. There's two ways they're going to do it. Some are in the air, and some are a bounce pass. So try to keep in your mind how many bounce passes, and how many straight passes there are. Focus, don't make any noise to distract people. It's just a short clip. Sorry, I think I have to click this. Hopefully this will work. Okay. 

How many people think they got the number of passes? Anybody get it? What did you get? 
- 13. 
- 13, total? 13 total. Anybody else get 13? 
- 14. 
- 14. 
- Okay, so you're in the right ball park. 

How many of you, don't say what, but how many of you saw something else that was unusual in there that got your attention. Three, four, five, six. Okay. The rest of you didn't see anything unusual? Okay. I'm going to play it again. This time, don't count the number of passes. Don't look at the basketballs. Just see for yourself. 
(laughter)

 
- That's not the same video! 
- It's the same video! So the most important. Well, I don't know about the most important, but right in the middle of this thing, was something right in front of your eyes. Your retina was taking that in, but you missed it. I mean, how more obvious can you get than that? Just further proof that we don't take in everything we see. Things are there that we miss. Why else is it unreliable? 

Well, there's class differences. Some people are pretty good at it. Some people are not good at it at all. And unfortunately, they don't always realize how good are you at doing these things. So some people get on the witness stand and say, I'm a very good witness. And they may or may not be. They don't realize it. We also have more difficulty identifying people of different races, or different classes, and those types of things. Why else is it so unreliable? People's memories deteriorates rapidly, very rapidly. 

Here's what most people think that's the common perception, that it's pretty good for a day or two and then by day 30, it's pretty well shot. That's a myth. That's the wrong perception. Actually, here's more like it actually forgets. You forget stuff really quickly. And I was using this on one of my students today. If you go to a convenience store and buy a soda or something. And then a minute later, you try to remember, what did the clerk look like. You've got a half chance of having some idea of that. Wait about ten minutes, and there is no way in most cases. 

Wait a day, or two, or 30, forget it. So that kind of information really deteriorates very, very quickly from people's minds. Of course, most lineups, they aren't immediate. They are day or two, or three, or a week, or one of the cases I'm working on right now, is four months later. We've had cases that are two years later. That kind of thing, and people are convicted on this kind of evidence, that it can be accurate, but there's a grave danger that it's very deteriorated. Not only that, but we fill-in gaps. And we don't realize where we picked up new information. So you might have one idea about what the person looked like, what the perpetrator looked like, but then subsequent events come along and help fill-in the gaps. Any of you Star Trekies? 

What's the most famous line for star trek? 
- "Beam me up, Scotty." 
- "Beam me up, Scotty." You got it. I didn't plant that, either. It was never said in any line of star trek. Trekies don't believe that, but they've checked and it was never said. Similarly, similarly, Casablanca, "Play it Again, Sam" was never used. Sherlock Holmes never said, "It's elementary, my dear Watson," and I could go on and on. Actually, I can't. 

But I think people could go on. These are the ones I looked up. So where do we get those ideas? Where do we get that Kirk said, "Beam me up, Scotty?" It's hard to know. Somewhere along the line, someone said it and then it got spread around. Maybe there was a bumper sticker made out of it, or something happened and created this aura. And and now remember it as being, you know, we could see Captain Kirk saying, "Beam me up, Scotty." It's part of our memory. We've got a visual image of him saying that. 

We've got a visual image of the guy saying, "Play it again, Sam." But that's a later construction. Something later came along. And we don't know where it came from. We think it came from the movie. It didn't. It came from later. Then there's, of course, problems in administration of lineups. One of the big problems is that after someone makes a lineup selection, they're given feedback. They're told, yep you got the right guy, or way to go. 

Yes, you got him. They clap. These are actual responses from people. Well, what happens then? If you know that was the right guy, or the suspect that they thought it was. Then you become more sure, you become more confident. I guess that was the right guy. All of a sudden, you might have been, well I think it was him. All of a sudden you get on the witness stand later, and you don't even realize this, but you're more likely to say I'm sure it was him. Absolutely sure it was him. 

And you don't even realize that. Confidence is a very, very important thing. And that's one of the reasons that Steve Avery was convicted, because the victim in that case, Penny, was so positive that was the right guy. The fact is, confidence is a myth. It doesn't make much sense to most people. If someone comes and says, I am 100% sure that was the guy, you're going to usually credit that, quite a bit more than someone that says I think that was him, not sure, I'm pretty sure, but I'm not sure. The truth is, people's assessment of how confident they are is almost meaningless, because people don't realize those things. And so it's a very important thing to juries, but it really shouldn't be. And science tells us it shouldn't be. Well, what else causes these kinds of things. 

You can get lineups that are very suggestive. What do I mean by that? You can have a description of, for example, the person had long hair and the only guy in the lineup has long hair and everybody else has short hair. That's a very suggestive procedure. You're going by other things than your actual memory of it. So suggestive line ups. Non-double blind administration. Many lineups are conducted by people who know who the suspect is. Now it's not going to be so obvious that they just tell the person, pick number three. That's not going to happen. 

They don't want to do that. But subconsciously, information can get conveyed. It can just be very subtle cues, not even intended, that can convey information. I notice you were looking at number two a little harder. Or if the person says, it might be two, and the answer might be, why don't you keep looking. Look at them all. Those kind of things can convey messages. Another problem, of course, in lineups is relative judgment. If you see a lineup with six people, you pretty much figure the suspect must be there and, therefore, you pick out who looks most like the person. And there's always going to be someone who does look most like the perpetrator. 

That's fine if the guy's in there, but if he's not in there, that's a problem. And all kinds of people get picked out of lineups. If he's not in the lineup, all of a sudden, you're facing an eyewitness who says, that's the person. It's like a multiple choice question. And that's why I put this slide in here. Who scored the most points in the NBA in the 1980s? Larry bird, Magic Johnson, Michael Jordan or Kareem Abdul-Jabbar? Kareem? Okay. Now if you were wondering why I put this in here, the problem with multiple choice questions. 

What if we put "none of the above" in there? I mean, everyone at first was wanting to say, yeah, it's one of those guys. I know those guys. They're all prolific scorers. I think I can get that. But they don't know. Well, what if the answer is none of the above? And in fact, that's the answer. And if none of the above had been an answer on this to begin with, probably more people, I'll bet almost everybody at first picked out one of those four. Or maybe you didn't know, but no one was thinking none of the above. 

If I put that in the question, at least some of you are going to be thinking, maybe it's none of those above. And the truth is, it's Alex English. You remember Alex English? He scored more points than anybody else. It's hard to believe, but that's the truth. So how we even phrase questions in lineups matters. And to tell someone where they're coming into a lineup, the person may or may not be in the lineup, the actual perpetrator, makes a tremendous difference. Otherwise they figure the guy's there. And so you should be properly instructed. The person may or may not be there. 

It's just as important to clear the innocent as to get the guilty. And then let them look at the lineup. Yes, sir? 
- As part of the double blind, why don't that have two panels or three panels as part of that, because then you would have that. 
- You mean more in the lineup? 
- Well, if you're going to have eight people, have four people first and then four people later. Something right after that. 
- Four people in the lineup? Are you talking about multiple witnesses? 
- No, divide the panel of the people that are going to be in the lineup. 

Say there's eight of them, but they show them four first and then another four, don't tell them which one. 
- Well actually, I can do you one better on that. And this is now the preferred procedure, which is instead of four and four, it's one at a time. So now what we're doing much more is, it's called a sequential lineup, maybe ten pictures, and you say, I'm going to show you these one at a time. As you see each one, you tell me is this the perpetrator, yes or no, and then this one and then this one. And therefore, you're doing exactly what you're proposing, except even better. They're not comparing which one looks most like it. They're going back to their own memory of it and deciding is that the person I remember seeing there. So that's called a sequential lineup. It is now in use in Wisconsin. 

In fact, that leads me really to my next slide, which is how can we improve these things? Well, we can give witness instructions, like the person may or may not be there. We can have good fillers. In other words, everyone in the lineup fits the description. Double blind administration. The person administering the lineup doesn't know who the suspect is. And then sequential, so one at a time, instead of here's all six, which one is it. Those are all things that can make a huge difference. Assessing confidence. You want them to say, right after they make their identification, how sure are you? 

You don't want to first clap and tell them, yeah, you got the right one, now how sure were you. You want to get it immediately after they make the identification, so that's set in stone and they can't change that, or be influenced by later events. Showing the suspect the witness only once is important. And use only one suspect in each procedure. Well, so that's the eyewitness part of it. Eyewitness reform is a big part of it. Wisconsin is making great strides. These kinds of cases, these exonerations have done a lot to get reforms done. Procedures in Wisconsin do include many of those reforms I've just talked about. And those really have been a direct result of this kind of research, and seeing how people get convicted who are innocent. 

So there's been a lot of good come out of these things, beyond simply releasing 217 innocent people, which is, of course, wonderful for them and their families. But it also can help all of us to be more sure that we're not convicting innocent people. Beyond those things that we've talked about, eyewitness identification and false confession type areas, there's other things we can do. We can make sure there's better defense attorneys and prosecutors who understand that these things can happen. To know the pitfalls of tunnel vision and be able to guard against these things. Just knowing that it can happen can be very revealing. Jailhouse informant testimony. I talked about just a little bit earlier, but it's a very unreliable kind of identification. And so there's been ways thought to try to limit that or try to make sure that at least when someone testified against a jailhouse person they understand the benefits to that person when they're testifying. Better use of science. 

A lot of these sciences have been found to be really not sciences, we call them junk sciences. The hair identification things, the bite mark identification, some of the arson type investigation tools. And so, there needs to be more research in many of these areas to see how valid is it on these sciences. They're not totally invalid in every case, but they're often overstated. And they're taken to be more meaningful than they actually are. And finally, public education. And that's why, I guess, I'm here. That brings me back to why I'm here. We think it's important to inform people to know about these kind of things can happen. There are ways to deal with it. 

Hopefully, the ways to deal with these things do not jeopardize our ability to still catch the bad guys. Sometimes, there's a trade off, that by making sure the innocent are not incarcerated, we might have to let a few bad guys go. In some of the reforms, there's a touch of that, but in most of the reforms, it's not that. Most of the reforms, it's about getting it more correct, and getting the bad guy behind bars, and also making sure the innocent aren't convicted. And for the public to kind of understand these procedures and processes and how these kind of things can happen. You're better informed jurors, if you're on juries. And just understand more about how this criminal justice system works. So that's my prepared remarks, and I'm happy to take questions. Yes? 
- The argument against some of these reforms having to do with the concern of some guilty people going free inadvertently. 

It could be countered by the fact that in the two cases you cited, the guilty person did go free and committed more crimes because you convicted the wrong person. 
- That's exactly right. there is a public safety issue, to make sure we don't get the wrong guy, because then the right guy is out. Yes, sir? 
- How many labs do you have in Wisconsin where they do the DNA analysis? 
- The Wisconsin Crime Lab is the lab. There's one in Madison and one in Milwaukee. So those are the main ones. You've seen in the political races, there's been talk about the long line. There's a lot of DNA, and there's a lot to be tested, and it's not cheap. 

I think they hired a lot of new analysts. So it's getting better. When we put in new stuff for testing at our request, we usually get it back in about eight months, right now. So that's a long time to wait. Emergency cases, of course, the police can get it done much quicker. But these kind of cases, where if we have clients, well we do have clients sitting in prison in the last 10 or 15 years, if we ask for DNA testing and it's granted, it's usually taking about that long for us to get it. Yes, sir? 
- What percentage of the prosecutors and the eyewitnesses responsible for the convictions will accept the evidence that you prove that they're innocent? 
- Good question. Do prosecutors accept this stuff? 

Well, it depends on how definitive the evidence is. In the Steven Avery case and the Chris Ochoa case, they were both great. They both immediately recognized, we just flat out got the wrong guy. They helped pave the way for this to happen. So in those cases when it was so cut and dry, not only did we get the wrong guy, we also were able to identify the actual perpetrator. Those, we were lucky on those two. There are horror stories around the country where prosecutors are not willing to admit to equally stark things. Sometimes they're afraid for liability purposes, because there are lawsuits that could be lurking behind these. Not by us, we don't do that part of this, but Chris Ochoa was able to win a sizable judgment from a lawsuit against the police department there. So that can be a hindrance if there's lawsuit possibilities. 

There's also, of course, cases that are not as cut and dry as the two I've talked about. It's more very good evidence of innocence, but it isn't complete, 100% proof. And so you can imagine prosecutors will often argue that they still got the right guy, even though an important piece of evidence at trial was wrong. They got it wrong at trial. But they often still will argue, we still think the conviction is good. And that's an argument that the judge has to weigh those arguments and make a decision on. Yeah, back there? 
- How big is this criminal DNA database, and what do you think of the idea of having the government just collect everybody's DNA? 
- That's a great question, how big is the database. I should know better. 

It's at least two million. I'm trying to remember if it's two or three million now, around the country. And it's growing every day. And some jurisdictions are not only doing it towards convicted people, but also arrestees. So it's growing quickly. There have been some proponents for, let's just do it to everybody. When you're born, let's get your DNA preserved. In a law enforcement standpoint, I suppose, it would be, I suppose, ideal. You go to a crime scene, you've got the evidence there and you just check it against the database of 250 or 300 million Americans and like, by golly, his DNA is there. And so, from some standpoints, that's seen as good. 

Another positive part of that is that it's not being discriminatory about who are we testing. There's no racial component. There's no class differential. Everyone gets it done. On the other side of this, and I'm not going to take a stance on this, of course. But there's civil libertarians who are very, very worried about our DNA being stored. Everybody's DNA being stored. It could be used for other purposes, like insurance. You know, you can't get insurance anymore because your DNA shows you've got some genetic material. Just sort of the loss of our own privacy. 

So it's a debate. And I think it's a debate that's going to be addressed in the next decades to come. Are we moving toward that? In a way, we are moving toward that. Is it going to be stopped or limited? Should it be? It's a great debate. You can go on and on for policy reasons why it should be more extensive or less extensive. But from simply a matter of catching criminals, yeah, it helps in that regard. Yes? 

- Has it ever happened that DNA has been falsely planted as a decoy by maybe the perpetrator or somebody else? 
- You know, I've heard about that as a potential. Am I still on TV here? 
(laughs)
 Whether DNA could be planted by perpetrators. You know, you could imagine that in some futuristic thing, a rapist or a burglar goes into a house and has a purchased can of DNA, you know, various DNA, and you spray it around. 
(light laughter)
 That's why I asked if the TV's on. I don't think you can do that. But I am sure some criminals have probably thought about the possibility of trying to throw it off with DNA. 

The truth, however, is it's very hard to not leave some of your DNA, too. So you can maybe try to mask it with other people's DNA and stuff. But you know, criminals have always been known to try and wipe off fingerprints and try to watch out. It's hard enough to wipe off all the fingerprints you've made, but to make sure anything you've touched, and they can come off by touching a coffee cup, it doesn't always, but it can be, you know, smoking a cigarette, drinking. It's not that hard to shed some DNA cells. So criminals could mask it with other DNA, but you're still likely to be leaving, you may be leaving some. But if there's an investigation that really wants to check every single millimeter of that carpet to see, you know, where was some dander if it came off this guy. And the truth is, of course, we don't have the resources to be able to do that kind of investigation. I think we've got one more back there. 
- A suspect lies to police, that's called obstruction of justice, is that correct? 

- It's called what? Obstruction of justice, yes. 
- If a cop lies to you, the suspect, that's just called good police work. 
- Absolutely. 
- Why does that continue to be legal in Wisconsin? Why can they lie, when it's illegal for us to lie to them, but it's legal for the cops to lie to us? 
- Yes, so the question is, why can the police lie, as they did to Chris Ochoa about the evidence that may exist in the case, but why can't, you know, we can't lie to police or we'll be charged with a crime, which is called obstruction. Lawyers ask this as well, because we can't lie to clients or witnesses. We can't, you know, sometimes lawyers would like to be able to lie and say, you know, we found some evidence against you, or something. We can't do that. 

Under our code of ethics, we can't lie. Police can, however. And there have been calls to reform that. It's not accepted in every country. I believe in Great Britain, they don't allow that. I think there's a feeling among some that if we don't allow police to lie, you're going to lose some of the guilty people. Because face it, there are people who can come in, who are actually guilty of the crime, and you tell them, you know, we found your fingerprint there, and then that person spills his guts, okay, here's the loot. And you know, you've got the guilty person. It does work for guilty people. The problem of course, is it also works to get innocent people to confess, as it did in Chris Ochoa's case. 

And so there's a trade-off there and a balance. So there have been calls for reform in that area. One thing that's key, in if you get that kind of confession, of course key and critically important, that it then gets corroborated and supported by other evidence that's out there. In Chris Ochoa's case, there was nothing else supporting it. That's a good question. It's one we'll be addressing. Yes? 
- How frequently is electronic monitoring of interrogations used around the various parts of the country? 
- I'm sorry, would you say that again? 
- How frequently is electronic monitoring of interrogations used? 

- Oh, yes, how frequently are interrogations electronically recorded. And I think there's a great change occurring in this area. In Wisconsin, they're now routinely doing it. But that's only in the last few years, largely because of these kinds of cases. I think it's still in the minority. There are a lot of police departments that use it. And actually, there have been two states, Minnesota and Alaska, that have mandated it for a long time. And generally, police officers in those two states say it's great. We make our case with that. We protect against false accusations, what we did in our interrogation room. 

So the more and more police see it, the more they realize it's really in their benefit as well. But there is some resistance to it. They're afraid that juries are going to see some of these techniques, like lying to the suspect, and it's not going to look seemly. It's getting a little bit rough, and I don't mean necessarily hitting the guy, or anything. But it just doesn't look, they don't want the jury to kind of be aware of that. They're afraid that people will clam up. If you turn a tape on, they're going to then stop talking. And I think most of those criticisms can be put to rest. People are pretty used to cameras these days. They forget those things pretty quick. 

There is still some resistance. But in Wisconsin, we've been moving very, very rapidly in the last few years toward recording all those interrogations. And of course, it's pretty cheap now, too. It used to be a much more technologically expensive proposition. Now it's, you know, pretty cheap. Yeah? 
- How can you deal with the financial resources the police departments have in order to be able to use DNA? Or, if they do, and they find out the person is in another state, where do they get the funds to go get them, to bring them back? 
- Yes, how do we, especially in the defense of people get the funds to be able to do this DNA testing. We have been fortunate enough to be able to get the Wisconsin Crime Lab, or in Texas, the Texas Public Crime Lab, they were able to do that. 

There is a law in Wisconsin saying that defendants have the right to DNA testing at public expense if they can't afford it, if you can show it would make a difference, and that it's still preserved and it hasn't been tested, and all kinds of things. Actually, one of the things we do with our students is write mammoth motions saying here's why this DNA would make a difference. And we win some of those and we lose some of those. But if you win them, then it is done by the crime lab at public expense. 
- What about out-of-state, where do you get the funds to go? 
- Oh, out of state is the same thing. Sometimes, the person has, well, they don't usually have money. But sometimes their family does, or other, sometimes in a scrape, a donor comes in and says I'll pay for this. We get donations from people occasionally. Sometimes, you really don't know how you're going to cover it, because it can be expensive. 

So, it's one of those things. Yes, sir? Right here. 
- When you have a hit in the database that suggests another suspect, is that person then re-tested, or do they just rely on that database? 
- No, I believe that they are re-tested at that point. They don't just go on what was collected years ago. They will then take another sample. They'll have probable cause then to be able to seize that person's DNA. They will re-test it. Yes? 

- How many cases do you turn down? And of the ones you accept, how many are you unable to come to a conclusion on, and how many are actually proven guilty? 
- The question is, in our project, how many cases do we end up taking. We screen hundreds, and hundreds and hundreds of cases. And we have now had about ten exonerations, as you heard. So it's the very tip of the iceberg in terms of what we are able to do. There's lots of cases where the DNA has been destroyed, thrown away, can't do anything about it. Sometimes, well, we've had it several times, where we do the testing, and it turns out to either not be helpful, or sometimes it proves they got the right guy. And you know, you sort of scratch your head, well, why did the person want DNA testing if he knows he was there all along. I suppose they're hoping, nothing to lose. 

Some of these guys are serving 300 or 400 years. You know, why not. There's also a lot of cases that we end up not being able to do. We believe they are innocent for various reasons, or the evidence points to their innocence, but we just can't find enough evidence there. We do work on non-DNA cases. It's not only DNA. Because like I say, DNA only exists in a small percentage of cases. So we have a number of cases where we really believe the evidence was really weak, and we have other new kinds of evidence coming in. We work on those cases. Those are a lot more difficult, and tedious, and long. 

But those, a lot of those, and some of those turn out each way. Some of those ten people we've gotten released are those people. But there are others that we have not been able to succeed in. We keep looking for other ways. So it's hit or miss. Yes? 
- Are there systems besides the lineup to identify? Do they use face recognition, or do they use any kind of an olfactory test? 
- The question is, are there other identification procedures besides the visual lineup. For example, voice lineups. 

Sometimes there are voice lineups. Sometimes all they hear is the voice of the criminal, so there can be voice lineups. Those are fairly rare. But there are those. I've never heard of an olfactory one where you smell something. Although sometimes the description is the person smelled like gas, or something like that. It's an important part of the description, but in terms of a lineup, I haven't heard of that happening. But most of it is visual lineups, with either photographs or live lineups. Yeah? 
- What would be the average cost of DNA analysis? 

- DNA analysis, it's a little hard to say for sure. But it's generally in the range of $600 to $1,000 per test. Now, in a lot of the cases, you aren't just testing one item. You're probably testing at least two. One, the crime scene thing and the suspect, perhaps, to measure against, so you've got two. Sometimes, you might have it in four or five or ten different places. So it can be very expensive, running into the thousands of dollars. But it could be as low as $1,000 or $2,000 in some cases. Yeah? 
- Is this automated so they can crank them out in batches, pull them up and get the machine going? 

- It's fairly automated. Yes, but it still takes six or eight months to sort of be on the queue. You know, they first have to extract it from the item of evidence. And so it's not, if they have a bed sheet, for example, you've got to comb that bed sheet and use different techniques to say where would the fluid have been. I've sent them blankets. Well, you've got to look at a lot of stuff there. Clothing. There's sometimes a lot of work to try to find where the DNA would be. Once you find the DNA, then to put it in, you know, you see on TV where they drop it in little pipettes full of stuff. For that to happen, that's fairly automated. 

It doesn't take that long. But you're in a line of waiting for that stuff to happen. And you know, frankly, there's a lot of value judgments that go into it. When you send a sheet to the crime lab, they don't test every centimeter. You know, they have to use their judgment. What would be the most likely place for it to be. So there's a lot of judgment that the crime lab analysts need to exercise. And they might need to know something more about the crime, and fitting that all in, what would be the best place to try to take the swab. Yeah? 
- Do the analysts testify at trial, explaining what they did and how they got the sample? 

- So the question is, do analysts go to trial and explain how they did all this. They used to at the start. When DNA came in forensic use in the early '90s and mid-'90s, there were a lot of challenges to this. What is this new fangled science of DNA, and how does it work, and questions like that. It's more or less accepted, well, it's very well accepted now. And usually, there's not a big argument in court about that. It's pretty much, here's the result. What does that result mean? And that's where the argument is now. Yes? 

- So I used to think that confessions and eye witnesses were pretty reliable. What's the chance that we're going to put too much stress on the DNA evidence in the same way? Are there safeguards in place for that? 
- Well, DNA evidence, yeah, she used to trust eye witness identification and confessions more than maybe she does now. So the question is why should we necessarily trust DNA. The truth is DNA is very scientifically based. Out of all the forensic sciences, it's really the only one where there is a data bank, or we know how often these certain alleles, or these parts of a chromosome show up, these genes show up. And it's based upon a sampling of populations. That is very different than most forensic sciences. It's very different from, for example, hair analysis that I was talking about. 

No one has looked at a million hairs to see well, how many of them have a shaft that looks like this. And so then you see a shaft that looks like this and say, well, one in a million have a shaft like that. None of that sort of underlying science has been done in that or really, any of the other forensic sciences. It's called sciences. But you know, for example there are tool mark things. You can have a tool mark, like a crowbar. It looks like this crowbar was used on this wood because you can see the little striations in there. Okay, it makes a lot of sense. And I'm not saying we should throw that kind of thing away. But it really isn't based upon anything other than gee, this must have been the crowbar that made this. 

There's been no study of marks. And for all anyone knows, or a jury knows, except common sense, every crowbar looks exactly the same. So there hasn't been the underlying science. DNA is fundamentally different than that. There has been underlying testing of all of it. Of course, you know, science can change and whatnot, but it's about as solid, it is the only true science. 
- We're leaving our DNA around everywhere all the time? What's the chance that our DNA ends up in the wrong place at the wrong time? 
- That's another good question. So the DNA is very precise in terms of that is your DNA. 

Or even better, this cannot be yours. You can exclude better than include. This cannot be your DNA. Or, this almost certainly, to one in a trillion is your DNA. That's very, very solid. What does it mean is a whole other thing. It's a whole other thing. If it is semen in a vaginal swab from a rape victim who says she had no other sexual encounters, that's fairly meaningful. If it's DNA on an item that was found somewhere near the body, what does that mean then? You know, if you find a body in the street, and let's say you can somehow find how many people's DNA is within 50 feet of that body. 

Jeeze, maybe you'd find a whole bunch of people that had been walking by there smoking cigarettes, spitting on the sidewalk, or their dandruff falls off. You know, so what it means is a whole other question. Now hopefully, in these cases, in Steve Avery's case it certainly was, you're finding DNA that really does mean something. A pubic hair in the victim's pubic area does mean a lot. But you know, that's one type. It can go down from there. And what we make of someone's DNA being on the body or near the scene of the crime is, you know, that's where it takes jurors to decide and lawyers to argue that this means something or doesn't mean something. All right, it becomes an art. Yes? 
- Have the CSI TV shows affected the expectations of jurors? 

- Well, the CSI shows have made their way into society. And I think a lot of people kind of get the idea that you can get a DNA result within minutes, you know. Because on the show, they get it really quick. And I think it also makes jurors, I've heard prosecutors and district attorneys say, you know, it's hard to sometimes get convictions without the DNA, because from CSI, they expect we're always going to have it there. So I think it has worked its way into the culture to some extent. And some of it is pretty good science and pretty realistic. And some of it really isn't at all. So I think it has an effect. Yes? 
- In the OJ Simpson case, did they have his DNA? 

- OJ Simpson, did they have his DNA. I'm not an expert in the OJ Simpson, so I'm going to get into trouble here. But I think they certainly did have his DNA. But of course, it was Nicole Simpson's house, I believe, and he had reason for his DNA to be around in some of those areas. It comes back to the last question, what do you do with that DNA. Does that mean he killed her or didn't kill her. Well, I can't go on, but people can go on for a long time about the evidence in that case and what did that mean. And you know, did he somehow beat the system despite the DNA, and what happened in that case. But let me say one thing about the OJ Simpson case. Whatever you believe as to his guilt or innocence, it was a major turning point in getting crime labs to start paying attention to proper procedure. 

Because that, whatever else, whether he was guilty or not, that crime lab was a mess. They weren't sterilizing. They weren't using gloves. They weren't doing all kinds of procedures. And after that case, if nothing else, it sort of shook the crime lab industry to say we need to do a better job of making sure we're pure here. And that other people, extraneous DNA can't come into these places. So that's one good effect of the OJ Simpson case, whatever. Yeah, one or two more, and I guess our time will be up. Yeah? 
- On the news, approximately one month ago, it was this woman that was dug up from a cemetery. 

She'd been murdered 40-some years ago. And she was 18 years old. Her first name was Marilyn. They had to dig her up and do DNA testing on her to try to solve the case. Now, DNA on a dead person 40 years past, I assume is accurate, otherwise they wouldn't have done it in the first place. 
- It's accurate if they can still get it. Sometimes it degrades. It depends on a lot of things, on the condition. It can degrade. On the other hand, though, I think they're still getting DNA from very, very old, I don't know about fossils, but maybe fossils, thousands of years old. 

They're doing some work there. They're getting DNA from some of these mummies they've found in the Andes Mountains, and things like that. So some of it can be preserved. But it depends on conditions, the humidity, and the temperature, and things like that. One more question, then we'll wrap it. Yes? 
- You didn't mention the troubling question of racial bias. Now we know that blacks as compared to whites get longer sentences for the same crime, proportionately, they get more severe sentences and are more apt to be convicted. My question is, in the Innocence Project, are blacks proportionately investigated as frequently as whites? 
- The questions are, the racial aspects of all this, and are blacks investigated as carefully as white people. 

Certainly, our program doesn't look at race in deciding who to investigate or not investigate. I will say that an unproportional amount of the 217 DNA exonerations are minorities. So there have been, I don't know the exact number, but a lot of the 217 have been minorities, which kind of shows that it's more likely to convict among a person of minority, an innocent person who's a minority, they're especially susceptible to that. As you know, the minority population is over-represented in Wisconsin prisons as much as almost anywhere in the country. And so I think the minority population in Wisconsin prisons is almost half, I believe. And it's very much over-representative of the population in Wisconsin, which is I'm guessing here, but ten percent or something. It's way over-represented. And so, that's troubling for all kinds of reasons that go beyond the scope of what I can do. But these exonerations can point out racial aspects. And race is a factor in innocent people going to prison. 

There's no question about that. So I guess we've been going on a while. So I want to thank you for coming. 
(applause)