Making a Murderer: A Criminal Defense Attorney’s Thoughts

Making a Murderer: A Criminal Defense Attorney’s Thoughts

“How can you defend those people?!?” is a question I get asked quite a bit. It can be hard for most people to understand why anyone would make their living defending those who have broken the law, particularly violent criminal offenders.

I can’t speak for all defense attorneys. Attorneys enter this practice area for all kinds of reasons, and it’s not for me to comment on anyone else’s motivations. I can only speak to my reasons.

I care deeply about the criminal justice system. For me, the process is far more important than the outcome.

If you believe as I do that an innocent person convicted is far worse than a guilty person freed, then you have to tolerate attorneys like me who will push the prosecutor at every step and poke holes in the case at each turn.

If you believe as I do that our Constitutional rights are so important that a governmental violation should result in the dismissal of a guilty man’s charges, then you have to tolerate attorneys like me who will hold our government accountable and challenge their actions.

This is what I care about, and my client’s guilt or innocence is irrelevant to these issues.

Making a Murderer

Lately what I do for a living has come into popularity, following the debut of shows like “Making a Murderer.” Like many Netflix subscribers, I found myself immersed in the 10-part true crime documentary following a Wisconsin murder trial. The defendants were Steven Avery and his nephew Brendan Dassey.

In the 1980s, Avery was convicted of sexually assaulting Penny Beerntsen. He served 18 years in prison before being completely exonerated in 2003. The investigation and prosecution of that case was corrupt and/or incompetent, and Avery was in the process of suing the various law enforcement entities for millions in 2005 when he was charged with the murder of Teresa Halbach, a missing woman who had last been seen visiting Avery. He was convicted in 2007 and sentenced to life imprisonment without parole.

On its face, the case against Avery is seemingly strong. Halbach’s car was found on his property with his blood in it. There were freshly burned remains on the property near his home. His nephew, a high school student with a low IQ, confessed to murdering her with Avery.

And yet, over the course of the series, question after question is raised. Was evidence manipulated? Were the witnesses telling the truth? The show plainly favored Avery and argued his innocence.

After it aired in December 2015, a good number of commentators and those involved in the prosecution rightly argued the documentary had omitted components of the case that pointed towards Avery’s guilt.

Let me say this upfront: I have no idea whether Steven Avery is guilty. There are valid, persuasive and intelligent arguments for both guilt and innocence. That being said, here are my thoughts on the process:

The Pre-Trial Publicity from the Prosecutor Tainted the Trial

Although one could say quite a bit about the prosecutor, Ken Kratz, I generally thought his presentation of evidence was thorough and competent. His grandstanding press conferences, however, were unprofessional, unnecessary and likely made it impossible to obtain a fair and unbiased jury. He practically gave his closing argument to the cameras long before a jury was even selected, and meanwhile nearly threatened Avery’s attorneys for attacking the integrity of the law enforcement involved in the investigation. This served no purpose, save for his own self-promotion and to taint public opinion.

Avery Received Excellent Legal Representation, But He Had to Pay For It.

Call it hubris, but sometimes I find myself silently critiquing other defense attorneys when I watch them in court. I can’t say much, if anything, critical of Avery’s two defense attorneys, Dean Strang and Jerome Butting. They were aggressive, thorough and committed to fighting for their client. I realized, though, the only reason Avery had this impressive defense team is because he settled his lawsuit for hundreds of thousands of dollars and used virtually all the money to pay for his lawyers. O.J. had his “dream team,” and so did Steven Avery.

Public defenders are often unfairly viewed as “lesser” attorneys. The truth is, public defenders often have far more experience than private attorneys. Some of the best attorneys I tried cases against in my former life as a prosecutor were public defenders. What they don’t have, however, are the resources and time Strang and Butting possessed. I make this point to be critical of the low priority our government places on financing the protection of criminal defendants’ rights as opposed to the billions of dollars that are spent prosecuting and incarcerating citizens. To contrast Avery’s attorneys — who ran down every lead and fought back against every piece of evidence — Brendan Dassey’s court-appointed attorney literally handed the prosecution a confession with no apparent benefit to his client. Speaking of which…

Confessions Are Not the End of the Story

There is a common misconception that innocent people don’t confess. Despite tremendous empirical evidence to the contrary, and heartbreaking instances of injustice, most people can’t understand why a person would admit to a crime they did not commit. Brendan Dassey’s confession appeared to be spoon-fed by law enforcement to a young man who plainly did not possess the cognitive ability to understand the significance of his statement. His primary concern after admitting to a brutal murder? Getting back to school so he didn’t miss his classes. Ultimately, the prosecution didn’t even use his confession in Avery’s trial. Again, I don’t know whether Dassey is guilty or innocent, but his confession was a failure of due process.

The CSI Effect Is Alive and Well

The so called “CSI effect,” wherein jurors now expect and unduly rely upon forensic evidence when deciding a case, was front and center for Avery’s trial. DNA from his blood was found in her car, and likely played a crucial role in his conviction. The defense raised significant questions as to whether his blood could have been planted from a sample in evidence from his previous trial.

What was shocking to me, however, was the certainty with which the FBI analyst testified the blood in Halbach’s car could not have come from that older sample in evidence. He testified that EDTA, a preservative, would have been found in the sample. Setting aside that dubious statement, he testified that, to a reasonable degree of scientific certainty, EDTA was not present in samples that he never tested. I literally paused the show when the analyst said this.

When I was a prosecutor, it was nearly impossible to get analysts from the New Jersey State Police to testify to anything beyond a reasonable degree of scientific certainty unless there was no possible way they were incorrect. I don’t know whether this is a contrast of the NJSP standards to the FBI standards, or whether this particular analyst played it fast and loose, but for the analyst to tell a jury that EDTA was not present in samples he never tested was shocking. There is no way to know what effect this had on the jury, but it is worth noting it was a critical piece of evidence and its context was likely misstated.

Regardless Of Guilt Or Innocence, Avery Will Likely Spend the Rest Of His Life In Prison

Most people think the appeal of a criminal conviction pertains to whether the jury “got the wrong guy.” In fact, jury verdicts themselves are almost never overturned. An appeal largely pertains to mistakes that the judge made, and then at a later point mistakes the defense attorney made. It doesn’t seem either of these factors will come into play here. First, Avery received excellent legal representation. Second, and even though I don’t have the benefit of knowing every decision the judge made in this case, it did not appear any one legal ruling materially altered the state of the trial. In sum: Avery has a tough hill to climb on appeal. Most of that process will only pertain to legal issues, not issues of guilt or innocence.

The Process is More Important Than the Outcome

As many of my clients and colleagues know, I have a passion for criminal defense because all citizens, even those who may be guilty, have the right to a fair trial.

This makes me think of my favorite line in the entire document, which came from Avery’s attorney Jerome Butting: “We can all say that we’re never going to commit a crime. But we can never guarantee that someone will never accuse us of committing a crime. And when that happens, good luck in this criminal justice system.”

Maybe the next time someone asks me, “How do you defend these people?!?” I’ll pull that one out.