of a previous crime, was then accused
of a horrific crime. Do you ever feel
there’s a part of the legal process that
can’t be corrupted?
A: It didn’t take me very long, as a public
defender starting off 30 years ago, to
figure out that the system didn’t work
as smoothly as you might learn in law
school. It’s a human endeavor, and so all
of the foibles and weaknesses and sins
that humans are capable of get played
out in the criminal justice system. There
are a few bad cops and lots of good cops.
There are a few bad prosecutors and lots
of good ones. Same all up and down the
line. I’m always suspicious when people
talk about a process that’s infallible.
Q: In appellate law, are you mostly
dealing with cases that come to you?
Are you ever appellate lawyer for your
A: I did one trial that we stayed on all the way
to the Wisconsin Supreme Court. Generally
I don’t. Usually it’s better to get a fresh set
of eyes. There’s always the possibility that I
could have been ineffective in some aspect
and not been aware of it.
Again, there’s no such thing as a perfect
trial. We don’t expect that. Unfortunately,
over the last 30 years, the practice of
criminal law has deteriorated in my view.
The defense bar is not compensated
the way it should be. You get what you
pay for. Forty dollars an hour is what the
public defender’s office pays for appointed
counsel. It’s the lowest in the country. When
I started in 1981, they paid $45 an hour in
court, $35 out of court. Now it’s $40 across
the board. That’s pro bono. That’s below
overhead for anybody. The only people that
can really take these kinds of cases anymore
can’t even afford to have an office. They’re
working out of their home or their car.
Prosecutors' offices are also starved.
They’re way underfunded. So a lot of
things that they used to be able to do—
deferred prosecutions—they can no longer
monitor, so some of the counties don’t do
them anymore. Whenever you underpay
somebody, you increase the risk that there
will be mistakes. Because people take
Q: But the solution, greater funding,
seems at odds with politics, particularly
A: There is no political constituency that
supports people accused of crimes. Most
people think that if you’re charged, you’re
guilty. Part of it is education. People have
to understand it’s a constitutional duty.
And in the long run the system ends up
being more expensive because you end
up having cases reversed on appeal; you
have to retry them, and sometimes they
get dismissed because the cases are older
and witnesses disappear. Really, it’s in
On the prosecutors’ side, the way the
salaries are structured, after five years, after
taxpayers have invested all of this time and
effort training prosecutors, their salaries are
flat and they can’t afford it anymore. They
leave and go off to the private sector.
Q: How did you get involved with the
A: I knew Barry Scheck from work that I
had done with the National Association
of Criminal Defense Lawyers. He called
me up one day and said, “We’ve got this
case in our office”—they get solicited
from inmates all over the country—and
he said, “We’ve got one in Wisconsin that
looks pretty thin. We’ve looked at the
transcripts, and the conviction seems to
be based on flawed eyewitness testimony
and what appears to be pretty shaky
forensic science.” He asked if I’d work on
it with him, and I said sure. I had no idea I
was going to get on a case that would last
almost 15 years. We got on that case in
1994 and it was finally dismissed in 2009.
The state kept fighting but ultimately
it was dismissed for prosecutorial
misconduct and destruction of evidence.
Q: So once it was all over, did you hear
back from Scheck? “Hey, you’re free now.
We’ve got another case for you.”
A: I haven’t actually been—what’s the
word?—recruited yet for another case. I
think they’re giving me a little time off.
Q: The Innocence Project helped Avery
get released for a previous crime only
to have him charged with the rape and
murder of photographer Teresa Halbach.
How did this affect perceptions of the
Innocence Project in Wisconsin?
A: Initially the perception was bad—again,
in part, because of the very inflammatory
press conference. Avery was convicted, his
case had gone through its direct appeals,
but he continues to maintain his innocence,
and I continue to believe the evidence was
very suspicious in the case. The original
jury—I think when they went out their first
vote was seven “not guilty,” three “guilty,”
and two uncertain. Then they deliberated
for four and a half days before they finally
convicted. So it was not a slam-dunk case.
I think his fight for justice is going to go on.
It may take a long time before the truth
Q: Do you think of matters of guilt and
innocence when meeting clients? Try and
suss them out in some way?
A: You have to be careful. I learned a
lesson when I was a public defender.