Police misconduct case likely to cost taxpayers $2 million
Milwaukee fought lawsuit after Avery was cleared
A case in which police misconduct led to a wrongful conviction will likely cost Milwaukee taxpayers $2 million, according to court and city records.
For six years, the city fought a lawsuit filed by William Avery, even though the DNA of a serial killer was found on the body of the woman Avery was convicted of fatally strangling.
The criminal courts vacated Avery’s conviction.
A state panel certified him as innocent.
And a federal jury awarded him $1 million in damages, concluding that two Milwaukee police detectives violated his civil rights by writing false police reports that said he confessed.
The city ultimately appealed to the U.S. Supreme Court.
City officials conducted additional DNA testing to see if perhaps both Avery and the serial killer, Walter Ellis, could have been involved in the crime.
The Supreme Court declined to hear the case, and the new DNA testing turned up nothing.
The city attorney’s office agreed to settle Avery’s lawsuit earlier this month — two years after the jury verdict.
If the Common Council approves, taxpayers will be on the hook not only for the original $1 million judgment, but for $987,000 in fees and costs — $150,000 more than they would have been without the appeals. The costs do not include the time and money spent by the city to fight the case.
The pending settlement could push the total sum of payouts to settle lawsuits so far this year past $9.3 million, which would be the highest amount the city has paid since at least 2008, according to a Milwaukee Journal Sentinel analysis.
In a letter dated Oct. 13, City Attorney Grant Langley told the council paying Avery at this point would be “deemed expeditious.” The proposed settlement will be reviewed by the council’s Finance and Personnel Committee in the coming weeks.
From conviction to exoneration
Avery served six years of a 40-year prison sentence for the murder of Maryetta Griffin, who was strangled in 1998.
Key to his conviction was testimony by two then-Milwaukee detectives, Gilberto Hernandez and Daniel Phillips, who said Avery told them he was responsible for Griffin’s death.
The 1998 interrogation was not recorded, and Avery testified that he never made the statement. (A Wisconsin law requiring police to record their questioning of suspects was not passed until 2005.)
The jury found Avery guilty. He was in prison for the crime in 2007, when the Milwaukee Police Department formed a cold case unit and assigned Hernandez to it. Hernandez and his new partner requested DNA testing in a series of unsolved homicides and found several of them linked to the same DNA profile.
Because Ellis had previously been convicted of a felony, his DNA profile should have been in a statewide databank. It wasn’t there because a fellow prisoner posed as Ellis in 2001 and gave a sample for him.
The detectives ultimately identified Ellis by matching the DNA from crime scenes with a sample from his toothbrush.
Ellis pleaded no contest to killing seven women. In three other homicides, including Griffin’s, his DNA was found, but he was not charged.
Hernandez did not ask for DNA testing in Griffin’s case because it was closed when Avery was convicted, Hernandez testified during the federal civil rights trial.
Avery requested the testing himself. When it was done, Ellis’ DNA was found, leading to Avery’s exoneration.
Hernandez still would not concede Avery was innocent, even though Griffiin also had several things in common with the women Ellis was convicted of killing: She was African-American; she had abused drugs and worked as a prostitute; she was sexually assaulted and strangled; and her body was found in an abandoned garage on Milwaukee’s north side. What’s more, the garage was across the alley from the place Ellis was living at the time.
Hernandez testified that the presence of Ellis’ DNA on Griffin’s body did not prove that police had gone after the wrong man.
“I feel that … Mr. Walter Ellis had sex with her. That’s what it proves,” Hernandez testified. “It doesn’t prove that he killed her, although that is his pattern. But we don’t know.”
The jury assessed damages against Hernandez, Phillips and the city, finding that the two detectives violated Avery’s civil rights by faking their report and lying on the witness stand.
City’s appeal denied
In virtually every jury trial, the losing side asks the judge to set aside the verdict. Most such requests are denied out of hand.
But in Avery’s case, then-U.S. District Judge Rudolph T. Randa ruled in the city’s favor.
The Seventh Circuit Court of Appeals assailed Randa’s legal reasoning as flawed in reinstating the jury’s verdict.
The settlement was reached after the U.S. Supreme Court declined to hear the case.
The payment to Avery was the second made to a man who served prison time for a crime later tied to Ellis via DNA. Chaunte Ott spent 13 years in prison after being wrongfully convicted of the 1995 homicide of Jessica Payne. The city agreed to settle Ott’s civil rights suit for $6.5 million in 2015. Again, city officials did not admit Ott was innocent, and Ellis was not charged in Payne’s death. Phillips has since retired. Hernandez now works for the state Department of Justice. There, he served as the lead investigator in another case the city recently settled: the fatal police shooting of Dontre Hamilton in Red Arrow Park in 2014.
In that case, Police Chief Edward Flynn fired the officer, Christopher Manney, because he violated department policy when he conducted a pat-down of Hamilton, who had committed no crime. That reasoning was reaffirmed in state court, when Manney lost an appeal to get his job back. A federal judge also ruled that Manney’s actions violated Hamilton’s civil rights.
Nonetheless, the city appealed before trial, arguing the pat-down was proper.
After losing that appeal, the city agreed to pay Hamilton’s family $2.3 million. “I feel that … Mr. Walter Ellis had sex with her. That’s what it proves. It doesn’t prove that he killed her, although that is his pattern. But we don’t know.” GILBERTO HERNANDEZ FORMER MILWAUKEE DETECTIVE