As a criminal defense lawyer and former prosecutor, I have been asked by a number of friends and civil law colleagues about my thoughts on the Netflix series, Making a Murderer.

Disclaimer: this is an editorial – these are my opinions with which you may agree or disagree. Though I have years of experience in the criminal justice system, I am not an expert on the Steven Avery trial. Like most people, I watched the series and read a handful of articles online afterward. This editorial contains spoilers.

 

Making a Murderer

I do not know whether Steven Avery is a murderer, and I cannot say that I have a strong opinion one way or another about his actual guilt or innocence. Making a Murderer wants you to believe that Avery is not a murderer and that he was likely framed. The series raises many legitimate questions about the investigation and trial. However, the selective edits, dramatic music, even the name of the documentary are intended to leave the viewer with the opinion that Avery is the victim of a severe miscarriage of justice.

Irrespective of the documentarians’ agenda, the prosecution of Avery sheds light on the quality of some police investigations and prosecutions and rightfully gives its audience pause about the fairness and integrity of our criminal justice system.

 

The Trials                                                  

An important qualification that applies to me and almost all people watching the show: unless you sat in the courtroom, heard all of the evidence presented, and observed the demeanor of the witnesses, you cannot offer a truly educated opinion about the outcome of the trial. The trial included dozens of hours of testimony – much of what was said and done in the courtroom was not shown in the documentary. It is worth noting that there was purportedly meaningful evidence presented during the trial that was left out of the documentary.

 

The Evidence

There is no question the course of the investigation and timing of the charges are suspect. Having been involved in the prosecution and defense of thousands of criminal cases (including murders), I can safely say that I have never seen the same property repeatedly searched, only later to yield highly incriminating evidence, or a blood vial with an unexplained hole in it. I have, however, seen plenty of shoddy police work, sketchy witnesses, and junk science (see, e.g., dog-scent lineups).

While some of the issues in the Avery case are sensational, the evidence is rarely pristine in any real-life criminal prosecution. Since human beings play a role in every step of our criminal justice system – from police patrol officers to Supreme Court Justices – the system is inherently flawed. Making a Murderer inadvertently exposes the broader issue of convictions based on thin and problematic evidence. Unreliable evidence is routinely presented in courtrooms, sold to juries by persuasive prosecutors, and deferred to by appellate courts.

 

Frame Job?

Skepticism of law enforcement is a job requirement for me. However, I cannot say that I am convinced that Avery was framed for murder by the police. Based on professional experience and a decent understanding of what makes people tick, I believe that police officers are far more likely to take measures cover up their mistakes (see, e.g., Avery’s 1985 wrongful conviction) than to affirmatively act or conspire to frame someone for a crime. Consider also that Manitowac law enforcement was under a microscope at the time that Avery was charged with murder. The state legislature was in the process of passing a bill inspired by Avery’s wrongful conviction, and he was embroiled in a civil lawsuit in which the county was a party. While certainly not impossible, it would have been bold beyond measure for Manitowac law enforcement to frame Avery for murder knowing that their conduct would be scrutinized. I’m not sure any of those officers was so bold.

 

All in the Delivery?

Ken Kratz, the prosecutor, makes it much easier to sympathize with the narrative of Avery the victim. Kratz comes across as arrogant, overzealous, and patronizing. The late-revealed sexual harassment allegations merely confirm what most viewers already think – Kratz is just another villain in the story of Avery’s (second) wrongful conviction.

Regardless of what you think of Kratz, I believe that most prosecutors in this country, including reasonable and conscientious ones, would have taken this case to trial if Avery had been unwilling to plead guilty. While there are legitimate questions about the quality of the evidence and suspicious circumstances surrounding the investigation, there is also substantial evidence of his guilt. Simply put, absent concrete evidence that Avery was framed, a prosecutor would not have made that leap and dismissed the case. I imagine that the series would not have been as interesting, or the reaction so strong, if the Avery case, warts and all, had been presented by a more even-keeled prosecutor.

 

Brendan Dassey

As I suspect most were, I was far more disturbed by the evidence in Brendan Dassey’s prosecution than Avery’s. If Making a Murderer’s account of the Dassey trial is correct, the only evidence that directly linked Dassey to the murder was his statement. Having watched hundreds of recorded interrogations of suspects in my career, there is almost always some degree of manipulation – promising help, fabricating evidence, inciting fear. However, the Dassey investigators had no apparent interest in the truth, and seemingly endeavored from the get-go to overcome the will of a child of below average intelligence and social ability in order to make their case. Couple their actions with the “representation” of Dassey’s attorney, Len Kachinsky, and we witnessed a truly shameful episode of the American criminal justice system in action.

Incidentally, if Kachinsky was interested in getting publicity from his representation of Dassey, he has gotten it.

 

Different Time, Different Venue, Different Result?

Guilt or innocence is never the issue in a criminal trial. When a jury acquits someone, it is not because the jurors have decided that the person is innocent, only that they share some reasonable doubt about whether the person committed the crime. As we know, a 2007 small-county, Wisconsin jury found no such reasonable doubt in the Avery case.

Perhaps if Steven Avery’s trial had been held today, or in a different venue, the result would have been different. The presumption of innocence is a noble concept, but the reality is that most jurors have traditionally been willing to assume that the government is on the side of right. In recent years, however, because of ubiquitous mobile phone cameras and high-profile instances of police misconduct, I believe that the historically positive view of law enforcement is beginning to erode even among the mainstream.

Based on my experience in a major metropolitan city, I believe that there are juries here (in Houston) and throughout the country who would have acquitted Steven Avery in 2007 on the evidence presented in the documentary.

 

The Lawyers

Making a Murderer offers what may be the most heroic portrayal of criminal defense lawyers since To Kill A Mockingbird. Criminal defense lawyers are at times vilified by the public and marginalized by the legal community. On more than one occasion, I have been asked with semi-upturned nose how I can defend “those people” for a living. Just as an experienced surgeon is not upset by the sight of blood when opening a human body, a good criminal defense lawyer is not distracted by the heinousness of the allegations made against the client – the skilled practice of criminal defense is an exercise of legal understanding, strategic planning, and a deep understanding of human nature.

Making a Murderer depicts criminal defense lawyers as people who are intelligent, kind, and strong. From a selfish perspective, I applaud that depiction.

 

The End of the Line?

In Texas at least, our appellate system has evolved into one that supports upholding a conviction in all but the rarest of circumstances. I am not familiar with Wisconsin jurisprudence, but my bet is that it is more or less the same – look no further than the state court’s refusal to grant Brendan Dassey a new trial even after assistance from highly-qualified lawyers (a federal court may still hear this issue).

However, even the criminal justice system is not immune to public pressure. Bernie Teide, a convicted murderer serving a life sentence in Texas, was granted a new punishment hearing – by agreement of the state – after the Richard Linklater movie, “Bernie” led to a public outpouring of support. There is little question in my mind that the district attorney’s office would not have bowed absent the renewed public interest in the case. The State of Wisconsin has shown no such interest in agreeing to reconsideration of the Avery and Dassey convictions; only time will tell whether either is granted further relief.

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© 2016 David A. Nachtigall, Attorney at Law, PLLC

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