Heading into Thomas McCant's homicide trial two years ago, Dane County prosecutors had little hard evidence: McCants proclaimed his innocence, the gun at the scene wasn't the murder weapon, and gunshot-residue tests would be challenged by a defense expert.
But at least they had the tapes.
Audiotapes of McCant's 911 and jailhouse phone calls and videotapes of police interrogations showed McCants telling several lies about his whereabouts in the hours before his girlfriend, Lizzette Fountain, was shot to death in their Fitchburg apartment.
The tapes, says Dane County District Attorney Brian Blanchard, were pivotal in securing a conviction: "They brought the jury much more directly into the nuances of the case."
In January, Wisconsin joined a growing number of states that require police to record interviews with adult suspects in felony cases. The Wisconsin Supreme Court in 2005 imposed the same mandate on all juvenile interrogations. The goal is to reduce police misconduct and create an accurate record of events that are often subject to dispute.
District attorneys and defense attorneys alike have used recordings to their benefit. Blanchard says there have been a number of cases in which they've helped secure convictions. On the other hand, a Waukesha County judge threw out a murder suspect's confession after a videotape showed he requested a lawyer one hour into a 10-hour interrogation and was not provided one. (Last month, a jury convicted the man without the tape evidence.)
"It's an idea long overdue," veteran Dane County public defender Dennis Burke says of the recording law. "Words on a piece of paper sometimes don't explain, don't convey, what was going on in an interrogation room.
"For a million different reasons, this is essential to the criminal justice system."
Wisconsin's recording law grew out of the Avery Task Force, named after Steven Avery, who was freed in 2003 after DNA evidence proved he spent 18 years in prison for a crime he didn't commit.
The task force, made up of lawmakers and law enforcement officials, was charged with proposing reforms to reduce wrongful convictions. Besides the videotape rule, these included giving judges authority to order post-conviction DNA testing, urging police to develop new policies on eyewitness identifications, and setting guidelines for preserving DNA evidence.
Ironically, the recording law helped convict 17-year-old Brendan Dassey of helping Avery, his uncle, kill a photographer in Manitowoc County. Both were convicted. Wisconsin Law Journal quoted several trial observers stating the jury was heavily swayed by watching Dassey's videotaped confession.
Meanwhile, recordings can clear up errors and misrepresentations regarding what defendants say. Public defender Burke has had countless clients over the years who "listen to statements read into the record, using words and vocabulary they've never uttered, from cops who say, 'This is what the defendant told me.' And they look at me and say, 'What? I never said that.'"
Videotapes can illuminate issues beyond guilt, such as those pointing to motive or intent. Burke says he watched a videotaped interrogation showing a police officer informing his murder-suspect client that the victim in the case had just died. Burke says his client's shock demonstrated a lack of homicidal intent.
Some police departments embraced interview recording long before the law mandated it. In Middleton, police have been able to videotape interrogations for nearly a decade. The effects, says Police Chief Brad Keil, have been only positive: "I think it's made police better officers because they know they're on camera."
Experts believe police are less likely to use aggressive tactics that have led to false confessions if they know lawyers, judges and juries may later watch the tape. But while some cops fear these tapes will be used against them, Keil says the opposite is often true.
"There are often false allegations that police officers are physically and verbally abusive," says Keil. "Sometimes I say, 'Well, all we need to do is look at the tapes,' and the complaint is automatically dropped. We have been able to exonerate officers on many occasions because they're on tape."
Madison lags behind many Wisconsin departments in its use of videotape technology. Of the department's downtown headquarters and four district buildings, there is only one interrogation room (in the south district) equipped with video cameras. Capt. Tom Snyder chalks up the delay to technology glitches in installing $20,000 in new equipment.
Madison detectives and officers have several options for audio recording, including hand-held digital recorders and an interrogation room speakerphone that records directly into the department's computer system. They can also utilize recording equipment in squad cars.
Snyder says some officers and detectives were initially skeptical about the recording rule: "Like many things, it's just a fear of the unknown."
Some detectives feared suspects would be less willing to talk. Others worried that inadvertent or innocuous discrepancies between their written reports and recordings would be used against them. But Snyder says that "after training and getting some experience under our belt," those worries mostly have been allayed. Recorded interviews are now seen as a helpful investigative tool that will be enhanced with more widespread use and technological improvements.
The Dane County Sheriff's Office has three interview rooms with video cameras, including two at the downtown Madison Public Safety Building. Spokeswoman Elise Schaefer says detectives "see this as a great resource" that has investigative value beyond its use in court proceedings.
"If detectives ever have a question or a doubt about something that was said, they can go back and look at and review the tapes, numerous times if needed, to see what was said and how it was said," explains Schaefer. "Having this video record helps us more than it could ever possibly hurt us in an investigation."
Despite agreement about the law's value, officials worry about equipment costs, training and increased workloads. Blanchard calls the rule "yet another unfunded mandate" that stretches his already stretched staff.
"This is good evidence, and we want it, but it's considerably more work for this office to be creating transcripts," says Blanchard. In the next county budget, he will request an additional staffer to handle this job.
Ultimately, Blanchard hopes to have a networked system where law enforcement agencies can upload video and audio files. Until then, many departments are submitting DVDs and CDs along with their reports, but assistant district attorneys usually listen only if there's a serious factual dispute or to prepare for trial. And the tapes won't replace the use of written police reports to make charging decisions.
Still, Blanchard says "we have a more reliable system because everyone is able to look at the tapes and see what happened."
