State v. Avery, 826 N.W.2d 60

Avery was convicted in 1995 of two counts of armed robbery, party to a crime, in Milwaukee.
In 2007 Avery moved for postconviction relief asserting newly discovered photogrammetry analysis could show the robber in the video was not Avery.
Two experts used VISAR-enhanced frames and photogrammetry; one concluded the robber was shorter than Avery, the other estimated height near six feet one-half inch.
Circuit court denied the motion for a new trial; the court of appeals reversed and remanded for a new trial.
The supreme court granted review and reversed the court of appeals, holding Avery is not entitled to a new trial under either newly discovered evidence or in the interest of justice.
The opinion emphasizes finality and that the photogrammetry evidence would not reasonable-doubt Avery’s guilt when weighed against trial evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether photogrammetry qualifies as newly discovered evidence	Avery argues new tech undermines guilt	State argues not reasonably doubts guilt	No reasonable probability of a different outcome
Whether the court should reverse in the interest of justice	Avery claims real controversy not fully tried	State argues not exceptional case warranting reversal	Not an exceptional case; no new trial in interest of justice
Whether the circuit court properly weighed new vs old evidence	Credibility of Grindstaff vs Vorder Bruegge should favor Avery	Trial record credibility weighs against new evidence impact	Circuit court properly balanced evidence; no reversible error
Whether the video photogrammetry affected a pivotal piece of evidence	Photogrammetry undermines eyewitness and confession evidence	Video not used for identification; photogrammetry not dispositive	Not dispositive; real controversy fully tried

State v. Hicks, 202 Wis. 2d 150 (Wis. 1996) (discretionary reversal in exceptional cases requires identifying error that prevents full trial)
State v. Armstrong, 283 Wis. 2d 639 (Wis. 2005) (inherent authority to reverse for justice; not limited to direct appeals)
State v. McCallum, 208 Wis. 2d 463 (Wis. 1997) (newly discovered evidence weighing against old evidence standard)
State v. Edmunds, 308 Wis. 2d 374 (Wis. 2008) (trial court credibility balancing against new expert testimony)
State v. Plude, 310 Wis. 2d 28 (Wis. 2008) (new evidence can create reasonable doubt when credibility is pivotal)
State v. Love, 284 Wis. 2d 111 (Wis. 2005) (establishes four-prong test for newly discovered evidence)