TRANSCRIPT OF PENNY BEERNTSEN'S SPEECH AT REFORMING EYEWITNESS IDENTIFICATION SYMPOSIUM,

Transcription

1 TRANSCRIPT OF PENNY BEERNTSEN'S SPEECH AT REFORMING EYEWITNESS IDENTIFICATION SYMPOSIUM, Steven Allen Avery is celebrating his 366th day of freedom today. On September 11, 2003, he was released from the Stanley Correctional Facility in Wisconsin, having served eighteen years, one month, and thirteen days for a sexual assault and an attempted murder that he did not commit. I am the woman who identified him as my assailant when, in fact, he was not. The story begins many years earlier on July 29, It was a beautiful sunny day. I lived in Wisconsin at the time, and as we often did, following work, my husband and my daughter and I went to a nearby state park to swim in Lake Michigan. Our daughter was elevenyears-old and our son was ten-years-old. He was not with us because he was spending the day with a friend. We got to the beach and I began reading a book about Lizzie Borden, the infamous 19th century woman accused of murdering her parents with an axe. I remember saying to my husband after reading for a br i'. f ct', i "I ca't,- I ci griiepome hook on a beautiful day. I'm going to go for a little jog on the beach." And as was my custom, I jogged north into Point Beach State Forest. When I was still in the very public area of the beach, an area where there are homes, there was a guy standing approximately ten yards away from me. He had a leather jacket slung over his shoulder, and as I jogged by, he hollered, "It's a great day." I turned and looked at him and said, "It's a beautiful day for a jog." I didn't think anything of this and continued jogging about three miles north. I then turned around, and jogged a couple miles back towards my starting point. And I looked at my watch because the previous week I had gone for a jog on the same route and there had been strong headwinds, so when I turned around, it took me considerably longer to get back to the public beach, and my husband was quite worried about me. So I looked at my watch to make sure I was on schedule and it said 3:50 p.m. Within a minute or two of looking at my watch, I saw a man 1 Symposium, Reforming Eyewitness Identfication: Convicting the Guilty, Protecting the Innocent, Benjamin N. Cardozo School of Law, Sept ,

2 240 CARDOZO PUB. LAW POLICY & ETHICS J. [Vol. 4:239 wearing a leather jacket come out from underneath a half-fallen tree and head for me. I recognized him as the guy who had said something to me earlier in my jog. I remember increasing my speed thinking, "I've got to get away from this guy," but he caught up with me, put me in a chokehold, was holding me with both hands and said, "We're going to go for a little walk into the woods." He pushed me up over the crest of the first sand dune. I remember when he grabbed me thinking two things: number one, I have to stay calm, and number two, I have to get a really good look at this guy. I'm a perfectionist, I thought I had a good memory, I thought I had an accurate memory, and I thought, "I really need to study this guy to see what he looks like." It was approximately 100 yards from the sand dune area into the wooded area of the state forest. At one point when I tried to break free from him when he was behind me, he said, "Do what I tell you; I've got a knife." So I was in great fear that he had a weapon and could, in fact, kill me. When we got into the wooded area, my assailant turned me so that we were face-to-face. He exposed himself and started asking me to do sexual things for him. He began touching me indecently, and I was refusing to do what he asked of me. I kept talking about my husband and my children, saying anything I thought he needed to hear in order to let me go. This was very frustrating; it was making him angry. He eventually pushed me on the ground, pinned my shoulders to the ground and was kneeling over me. He began saying things like, "spread your legs," and I kept refusing and I kept talking. He became very frustrated by my lack of cooperation, so he put both hands around my neck and began strangling me. He would strangle me until I just about lost consciousness, then he would release his grip so that I could speak and he would ask me, "Now are you going to do it?" I refused several times, and the ritual of strangulation was repeated. Finally, I thought, "He's going to kill me; I'd better cooperate." So when he released his grip, I said, "Yes, I'll do it, but my husband and children are probably looking for me. I've been gone way too long." As I'm chattering on, I managed to get one leg up and kick him in the groin. It was not an incapacitating kick, but it absolutely enraged him, and he said, "Now I'm going to kill you; now you are going to die." He then began beating me primarily about the head and face. At one point, he grabbed my nose, pulled it to the side and I heard the

3 2006] PENNY BEERNTSEN TRANSCRIPT 241 bone crack. The back of my head was hitting either a tree root or a rock behind me, so I was suffering a great deal of head trauma. Eventually he strangled me until I lost consciousness. Now, it's amazing when you feel like you're maybe taking your last breath, the thoughts that go through your mind. I distinctly remember three thoughts. The first one was my ten-year-old son had left early that morning to go to a friend's house, and he had hopped on his bike and left so quickly that I hadn't had an opportunity to kiss him goodbye and tell him I love him. My second thought was that my daughter was at the beach with us, and her last memory would be of her mother's dead bloodied strangled body. And the third thought was that was my husband would now have to raise two young children on his own. At one point I had attempted to scratch my assailant, thinking if I could get something under my fingernails or leave marks on his face, it would be a way of identifying him. I saw this blood on my hand when I came to. I was lying flat on my back, and I thought, "Oh, I didn't think I scratched him but maybe I did. This is evidence; I've got to preserve this." I was fearful that he might come back. I looked at my watch to try and get a fix on the time, but my vision was so blurry from the head injury, I was unable to see my watch even though it was there. I attempted to stand up but was much too weak and fell over immediately. So I got on my hands and knees and began to crawl through the sand with my hands in an upright position, trying to preserve the blood on my hands as evidence. I thought I crawled in a direct line from the wooded area back to the shoreline. However, later when they went back with the canine unit, they discovered that I had zigzagged through the sand. I remember losing consciousness a number of times; passing out and then coming to; being weak and then crawling a little further. Eventually, I made it down to the shoreline. At this point, I'm not wearing anything, so I huddled up in a ball. I looked to the south and to the north, and to the north of me, not too long a distance away, was a young couple. I hollered to them for help. The words were clear in my head, but they came out completely garbled as if I had had a stroke. Again, I'm sure it was from the head injury. They came over, wrapped me in a towel, asked me if I thought I could walk with help, and I nodded my head yes. They then helped me up and we began walking south on the beach towards my starting point.

4 242 CARDOZO PUB. LAW POLICY & ETHICS J [Vol. 4:239 In the meantime, my husband was very concerned because I had been gone way too long. He went to the nearest convenience store a block or so from the beach and called his father to come and pick up our daughter, because he knew something had happened. He also called the police and reported me missing. He then sent some guys on jet skis along the shoreline because he knew sometimes when I got hot, I would hop in the water and swim; he thought perhaps I had drowned. He then started north on the beach and eventually this couple who was helping me met my husband. He picked me up and ran back to my starting point, where there was an ambulance waiting. I was taken to the hospital by ambulance. While I was in the emergency room, they sent a female deputy from the Sheriffs Department to question me about the assault itself and about the description of my assailant. I gave a statement over a three to four hour period. During this time period, they were performing the rape protocol kit, which is highly intrusive. They were stitching my facial cuts. They were taking me for X-rays to my skull. There were various medical procedures going on. So the statement was given in a very disjointed fashion. It was not recorded, but the female deputy took notes. When she completed my statement, she handed it to me, and I'm still on the table in the emergency room, told me to read each page and initial the bottom. My vision was still blurry. I said to her, "I can't read this." I believe I was told, "It's okay; sign it anyway." And to be honest, I would have signed anything they put in front of me at that point, so I initialed the bottom of each page. The Sheriff was also present, as he had been outside the emergency room and had been sending questions in. I was taken to my hospital room where the Sheriff and the Chief Deputy were waiting. I was asked if I could give a description for a composite drawing and I indicated that I could. There were not any overlays used. Steven Avery was out on bail awaiting trial for a reckless endangerment charge at the time of my assault. He was accused of running a Sheriff Deputy's wife off the road in his car, pointing a hunting rifle in her face and asking her to get in his car. She managed to get away with her young child. At any rate, it's my understanding that this charge was pending, I give this description, and the female deputy thinks, "Wow, this sounds like my neighbor, Steven Avery." And she gave that name to the Sheriff.

5 2006] PENNY BEERNTSEN TRANSCRIPT 243 Again, it's my understanding that the Sheriff, while I was still in the emergency room, called the Sheriffs Department and asked that a group of photos, guys with beards, et cetera, be sent to the hospital, and that Steven Avery's photo be included among them. After completing the composite and before being shown the photo array, I asked the Sheriff whether they had a suspect in mind and I was told, "Yes." Nine photos were then placed simultaneously on my bedside table in the hospital, and I was told to look at them to see if my assailant might possibly be among the photos. I looked carefully at the photos and picked out Steven Avery's photo. Steven Avery was arrested approximately eight hours after the assault. I need to share with you that all the information that the police began sharing with me pointed to Mr. Avery's guilt. When he was arrested, his wife came downstairs, and as they were handcuffing him, she said to Steve, "What's going on here?" And he allegedly said, "They say I tried to murder a woman," although the deputies had not mentioned the gender of the victim. In the squad car on the way to the jail, he is a1leged to have said, "Where does the bitch live?" And this came out in the trial and was apparently somewhat convincing to the jury. At any rate, Steven Avery was arrested. The next morning, either the Sheriff or my husband, I don't recall who, shared with me that the person whose picture I had identified was the person who had been arrested. I received an obscene phone call either the first or second night I was home from the hospital, and I have to be honest, I was so traumatized, there is a day that I can't account for in that first week. The phone call was sexual in nature and it contained some details of the crime, but it wasn't anything that someone couldn't have gleaned from the media reports. Nonetheless, I am the one who answered the phone at midnight. I was very shaken up, so the next day, I called the Sheriff and reported this phone call. And he said to me, "I'm going to do two things. I am going to send the female deputy back to your home for protection, and we're going to put together a live line up" to, quote, "make sure we have the right person in custody." The next day, I was taken to the Sheriffs Department, and I remember being very concerned about not identifying the wrong person.

6 244 CARD OZO PUB. LAW POLICY & ETHICS J [Vol. 4:239 I was taken into a room with a one-way glass. I was told that there would be eight men in the room. I was handed a paper with numbers one to eight on it and told that if I saw my assailant among the eight, I was to check the appropriate number and fold the paper in half. I remember asking, "What if I don't see him in here?" And they said, "Don't mark anything; just fold the paper in half." Again, I looked carefully at each man in the lineup, and I picked Steven Avery as my assailant. Now, I need to share with you that Steven Avery is the only person who was in both the live lineup and the photo array. What actually happened was I picked Steve because he looked like the photo, which looked like the composite. And in my mind after making that initial identification, he was, in fact, my assailant. Shortly after the assault, within a couple of weeks, I received a phone called from the Manitowoc Police Department saying that they had another suspect in mind who matched the description of my assailant, and they wanted to talk to me about it. They asked, "Had I noticed anybody watching me when I jogged? Had I noticed a strange car parked outside my home or somewhere on the block? Had anybody been watching me when I taught fitness classes at the local YMCA?" I answered "no" to all these questions. But I was very alarmed. I'm thinking, "Oh, my God, maybe the guy is still out there." And I was concerned for my safety and the safety of my family. So again, I called the Sheriffs Department and said, "What's this about another suspect?" I was told, "Do not talk to the Manitowoc Police Department; they do not have jurisdiction. We will check this out; don't worry about it." Well, of course I worried about it. I called back a couple weeks later and was told, "We checked out some additional suspects and we've got our man." That's not a direct quote, but that's my memory. I was told that the detective from the Manitowoc Police Department went to the Sheriffs Department and sat across the desk from the Sheriff and said something like, "You need to consider this other suspect, Gregory Allen. He looks very much like Steven Avery. He matches the description that the victim gave. And we have been watching him, we have been tailing him." I believe he had been charged with at least six sexual offenses from attempted rape to peeping Tom activity within the prior six months. The police department was very concerned that his crimes were getting more violent. So on July 17, 1985, they started tailing Allen,

7 2006] PENNY BEERNTSEN TRANSCRIPT 245 checking on him as often as fourteen times in one day. On July 29, they checked on him once in the morning, but then because of additional police calls were unable to check on him later. And at 3:50 p.m. that afternoon, I was assaulted. It's the very same beach where this suspect had attempted to assault another woman two years earlier, and he was also a suspect in an attempted rape two weeks prior to my assault. The case went to trial. Because Steven Avery had been held without bail, it expedited the process. And on December 9th, the trial began. It was a weeklong trial. Dr. Steven Penrod, who is one of the speakers here today, testified at trial about memory, perception, and the unreliability of eyewitness identification. There were sixteen alibi witnesses that stated that Steven Avery was somewhere else at the time of the crime. His alibi was that he was pouring concrete and had been working the chute. However, at trial, the crime lab testified that there was no trace of concrete dust found on the clothing he said he was wearing at the time. So his alibi was called into question. He was found guilty on December 14th, and on March 10, 1986, he was sentenced to fifteen years for attempted murder, fifteen years for first degree sexual assault, and two years for false imprisonment, to be served consecutively. There were a number of appeals, and his appeals were repeatedly turned down. And I need to tell you that my life was in a shambles after the assault. I was depressed to the point I was suicidal. It greatly affected my ability to be a parent. I was not communicating well with my husband. I was fearful all the time. And every time there was an appeal, I felt like I was thrown back in time, that I was reliving the event, that I might have to testify, and so I'm replaying the details in my mind. During the ensuing years, I was very angry and I finally realized that the anger and hatred were only eating me up, I was harming myself and my family and my children, and I needed to start looking at this from a different perspective. Just sort of serendipitously, a speaker came to town to talk about restorative justice. I remember I had talked to my therapist about what a burden it was to testify. Steve was twenty-three years old, he had five children at the time of the assault including six-day-old twin sons. And so, I began to wonder, "What must his family be going through?" I heard this speaker on restorative justice who talked about how often times victims find, or come to the conclusion themselves that they

8 246 CARDOZO PUB. LAW POLICY & ETHICS I [Vol. 4:239 need to forgive and move on. And for the first time since the assault, I felt like someone understood what I was thinking. My family and friends were saying, "You know, you should want to kill the SOB," and they weren't hearing me. So I became involved in the Restorative Justice Movement and became trained as a mediator in victim-offender mediation including mediations of crimes of severe violence. I've done a number of those. I also began speaking in prisons on victim impact panels. I initially went to prisons feeling like I had something to offer, that maybe if the inmates could understand the impact of a crime, they might begin to have empathy for their victims. Little did I realize how much I was going to take from that process, how very mutual it was, and how much of my healing would take place in the middle of a maximum security prison. I also helped start a sexual assault resource center in our community because there wasn't one at the time of my assault. Sometime in 1996, there was DNA testing that was ordered on the fingernail scrapings they had taken at the hospital. The results came back and were, quote, "inconclusive." My DNA obviously was under my fingernails. DNA that Steven Avery could not be eliminated as a source of was under my nails; however, it was not conclusive that it was his DNA. And there was DNA from a third unknown person. But Steve Avery's motion for a new trial was turned down. The trial judge ruled that there was not a likelihood of a different outcome even had this information been available at trial. In early 2001, Steven Avery, or one of his attorneys contacted John Pray and Keith Findley from the Wisconsin Innocence Project. And I can't tell you how grateful I am for Innocence Projects and particularly for the very kind and considerate way Keith and John have treated me throughout this process. At any rate, the DNA, for a variety of reasons did not come back until September of And on September 11, 2003, Steven Avery took his first walk outside prison after having spent eighteen-plus years in a living hell. The odds of his exoneration were not great. Fortunately, there was biological evidence that had been saved. There were, I believe, thirteen hairs, and in order to do the type of DNA testing they wanted, the hairs needed a root. Two of the 13 hairs had a root; one was mine, one was not mine and it was not Steven Avery's. So he was excluded.

9 2006] PENNY BEERNTSEN TRANSCRIPT 247 Not only was there an exclusion but there was hit. And I was told that my actual assailant was Gregory Allen. Gregory Allen is the man whom the detective called me about, although I was never given a name. He was the man that they had tailed for twelve days and could not follow on the thirteenth day. He had, in fact, been in the same prison as Steven Avery. I speak regularly at Green Bay Correctional in a class called Challenges and Possibilities. It's a voluntary program, and I found out later that Gregory Allen, knowing that I would be a speaker, had requested to be in the next class, which was later in September of So we came within weeks of me speaking to my actual assailant while pointing a finger at someone else. I can only imagine the jollies this horrible man would have gotten from that experience. When Steven was released from prison, this is still very raw for me, I apologize, one of his first statements was, "I don't blame the victim. It's terrible what happened to her." It is the most grace-filled thing that has ever been said to me. I have subsequently had an opportunity to sit down with Steven Avery. We met briefly before I testified in front of a Legislative Committee in Wisconsin. I thought it would be too awkward to walk into a public setting not having seen each other face-toface. So the first time I actually had physical contact with Steven Avery was last February. Again, he was extremely gracious in, our meeting. Words just can't express both how difficult that was for me because of the guilt I feel, but also what a gift that was. And I think ultimately, it will speed my recovery process. I wrote Steven an apology letter. And I'm not going to read the whole thing, but I'd like to read just a portion of it. I started out by saying, "There are no words sufficient to express how deeply sorry I am for what happened. Your wrongful conviction has taken away eighteen years of your freedom, something that can never be given back to you. I wish it was in my power to restore those years, but it is not. The only thing I can offer now is a sincere apology that I identified you as my assailant when you were not. I am also aware that after eighteen years of imprisonment, these words must sound inadequate in the face of your tremendous losses... " "My prayer these past eighteen years was that justice would be done in this case. That prayer was answered on September 11, 2003, when you were reunited with your family. Ultimately, no one can give

10 248 CARDOZO PUB. LAW POLICY & ETHICSJ. [Vol. 4:239 you back the time you lost. My hope is that in the years ahead, many good things will happen for you and your loved ones and that something positive will come from this incredible tragedy." "When I testified in court, I honestly believed you were my assailant. I was wrong. I cannot ask for, nor do I deserve, your forgiveness. I can only say to you, in deepest humility, how profoundly sorry I am. May you be richly blessed, and may each day be a celebration of a new and better life." And when I finished writing that letter, the familiar refrain from the Simon and Garfunkel song, Homeward Bound, went through my mind: "and all my words came back to me in shades of mediocrity." The day that my attorney told me about the DNA exoneration, while I was overjoyed for Steven, I was absolutely devastated; it was much harder than the assault itself. I had been suicidal after the assault, and I need to be honest with you, in this past year, I have had many suicidal thoughts. And I don't think it's that I want to die; I've been given a second chance at life and I am grateful for that. But it's that the pain is so great and I feel so very helpless. The most difficult person to forgive in all of this, obviously, is myself. Also, not a day goes by that I don't think about Gregory Allen and the crimes he committed and his victims. He was convicted in 1995 of brutally assaulting a woman in Green Bay, Wisconsin. Between 1985 when I was assaulted and 1995, he is suspected of, or was charged with, at least ten crimes, most of them sexual in nature. And so, I wonder how many other women are out there who have been affected because I misidentified my actual assailant. Neely Tucker in his wonderful book, Love in the Driest Season, wrote: "I woke up one morning to discover I had lost my religious faith, as if it were a suitcase left behind in some distant airport." And that has been my experience. After the assault, my faith was strengthened. I received a lot of support from church and family and friends. I have also received support since last September from church and family and friends. But somehow, I feel like I have been living for eighteen years in a parallel universe where the usual rules do not apply. And so, it certainly has caused me to examine my faith in what I believe about a Greater Power. Because of the guilt I feel, I need to learn a new way of living with myself. But Steven Avery's task is much greater; he has to learn an entirely new way of living. I'd be presumptuous to tell you that I have

11 2006] PENNY BEERNTSEN TRANSCRIPT 249 any understanding whatsoever of what he went through, but I can tell you some of the things that happened. While he was in prison, his wife divorced him. His two sons, the twins who were six days old when he was incarcerated, do not want to have a relationship with their father. His grandmother died when he was in prison; he was very close to his grandmother. He was not allowed to attend the funeral. His nephew was tragically killed in a car accident a number of years ago. Again, he was not allowed to attend the funeral. His relationship with his family since he has been released has been very strained and I'm understanding that this is very commonplace with exonerees. He spent eighteen-plus years being told what time to get up, what time to eat, what time the lights went out. He had no control over his life. Family, probably with the best of intentions, is trying to tell him how to put his life together. He is saying, "Whoa, I need to figure this out on my own; I don't need anybody else telling me how to live my life." He doesn't have a job at this point. He is really trying to regain his equilibrium. We have spoken on a number of occasions when we've both been at the Avery Task Force. He might not be in hell anymore IU but LL hec ~ L I-. SUre as heck si uraoy I would like to thank you for the opportunity to appear here today. I urge you to be open-minded, to listen carefully to the law enforcement personnel and the social scientists who will share with you some of the changes they have made. It's too late for Steven Avery, but I certainly hope that jurisdictions will make changes that will help ensure that thousands of others who are serving time for crimes they didn't commit will not have to go through the hell that Kirk Bloodsworth, Ronald Cotton, and Steven Avery have. Again, thank you so much for your attention. And I wish you Godspeed on your journey towards an improved system of justice. Thank you. EDITOR'S NOTE This speech was delivered on September 12, 2004 at a symposium entitled "Reforming Eyewitness Identification: Convicting the Guilty, Protecting the Innocent." Subsequent to this symposium, Steven Avery was charged with first-degree intentional homicide of a Wisconsin woman. As of the date of publication, the trial has not commenced.