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A Real Lawyer's Take on "Making a Murderer"

A Real Lawyer's Take on "Making a Murderer"

averyMaitland is a real lawyer and if the gallery ever gets in a jam I would totally call him except he has never given me his number even though I have known him since like, 2002. — Acadia

If you haven’t seen the show, lots of spoilers to follow.

I can’t shake the feeling that Steven Avery got a fair trial.

I hate sitting at the conclusion. Because, five episodes into “Making a Murderer” I hated everyone in Manitowac, Wisconsin and really believed that everyone there did Avery dirty. I’m not saying that by the time I finished Netflix’s 10-part documentary I completely moved to the mindset of everything being fair, on the up and up and all good. There was a lot wrong about what happened to Steve Avery, but, as a criminal defense attorney, this is the question I keep coming back to.

And, while it’s impossible to make a definitive statement about the fairness of a trial based on a 10 part documentary, what was presented on the show itself leads me to this conclusion. And, I hate myself for that.

I can sit here right now, and there are a minimum of three things presented by the documentary that I think were “planted” or otherwise manipulated in some manner in order to paint Avery as guilty. The key in his trailer, the bullet in the garage, the location of the vehicle. All three of those things stand out. Then, there’s the lack of forensic evidence at the two locations police and prosecutors thought of as the likely murder locations: the garage and the trailer. Then, you’ve got the bones. A clusterf*** of logic surrounds those damn bones and the barrels in which they were burned.

Because, on the one hand, man, Steven Avery is the worst f***ing criminal: he left his blood in this damn RAV4. But, on the other hand, man, Steven Avery is the best f***ing criminal: he cleaned up two potential crime scenes perfectly, not a trace of forensic evidence in there!

avery2I’m not going to try and discuss guilt or innocence. My day job is a criminal defense attorney. Of course I thought there was reasonable doubt presented by the documentary. I also realize that there was evidence, by both sides, left out of the documentary. Some of this reinforces the ideas the series leaves you with. Some run counter to the series. You can google those. There’s lists of ten that are all over the place, chillin’ on webpages, just waiting to serve as a click bait.

The Avery case was a dream for a defense attorney. To have all that evidence pointing towards reasonable doubt. There was a lot there. I wasn’t wildly impressed with Avery’s attorneys in the courtroom and what they did with that evidence. But, it’s difficult to truly assess. The documentary was lengthy, detailed, but, ultimately it’s only a snapshot. Particularly, the closing arguments by the defense were lacking. Avery’s attorneys came across great in the scenes outside of the courtroom. They gave a s***. They clearly busted their ass on Avery’s behalf.

There’s a point in the testimony of Brendan Dassey’s trial where the cop snaps off that these guys had 5 days to clean up. As a defense attorney, you love when cops go off book like this. They spout a theory of the case that none of the much smarter people they discuss the case with believe. Cops like to swing their dicks in courtrooms. Sometimes they can’t resist hitting you with their theories like a ton of bricks. But, no. That shit is nonsense. They don’t know what their talking about most times.

That’s the line you want to kill them on. Burn the bodies in all sorts of burn barrels because they’re handing you your reasonable doubt on a platter. Crush them.

theresa-halbachBecause, what that cop is telling you, is that they believe either the trailer or the garage were the locations for the kill. Dassey and Avery cleaned up amazingly after. Please. Spare me that. Something would have been found. The only thing that makes sense about either location being the scene of the death of Theresa Halbach is if Avery Dexter’d that room completely before the crime. So you crush them on this. Have to. Turn it into their theory of the case, even if it is only one damn cop mouthin’ off because he wants to sound smart when he’s anything but.

Maybe Dassey’s attorneys went for it and came up short when it comes to golden moments like that. Maybe they missed those moments.

Same holds true with Avery and his trial. There were moments there.

As I opened, I can’t shake the idea in my head that Steven Avery received a fair trial. Trial. Of course, everything about Making a Murderer rests on the shattered remains of what the filmmakers believe to be our criminal justice system.

But, to be clear, the right to a fair trial doesn’t include a right that your theories of the case are accepted or unchallenged. If cops planted evidence, and, I certainly think there’s at least a high probability of that, it’s unfair to Steven Avery. But, the trial itself, that wasn’t necessarily unfair. It’s a difficult point to parse out for people unfamiliar to the criminal justice system. Still, it needs to be done.

Because, there’s a bit of bulls*** in that final episode. The one that kind of wraps things up. And, one of Avery’s lawyers waxes poetically about how he would hate to be falsely accused of a crime in this country.

That notion, more than any other in this docu-series is crap.

avery4The American Criminal Justice System is largely a game. One thing to remember: the design of the system is one that allows many guilty to go free and very few moments where the innocent are convicted. It’s interesting that a lot of people believe the presumption of innocence was out the window for Steven Avery. This rings hollow if you believe the representation in the show where the jurors initially voted with 7 of them on Not Guilty and only 3 at Guilty.

Did I make an argument for it being OK for the innocent to be found guilty? I don’t know. I feel like I stated a fact. Take it how you want, but, we designed a system in which we allow guilty people to go free simply because we hate the notion of innocent folks finding their way behind bars.

Brendan Dassey got screwed. I hope sincerely that he gets a new trial. I’m rooting for those Northwestern lawyers. I think most people will be. I could spend more words about Brendan and the awfulness of Len Kachinsky. But, with every word typed, there’s a high likelihood I smash my laptop screen with my fist in anger.

As a criminal defense attorney, with the vast majority of my caseload being cases appointed to me by the court, Kachinsky’s failure is what all of us are fighting against. That perception that an appointed attorney is a lesser attorney because you’re not handing them stacks of cash. The overwhelming majority of attorneys that take appointed work bust their ass for their clients. But, there are indeed Kachinsky’s amongst us. Unfortunately.

One thing that I want to point out is that, among Kachinsky’s mistakes, people point out that he should not have been pursuing a plea agreement. That, somehow he was not being loyal to his client by pursuing a plea when his client proclaimed his innocence. To put it bluntly, you’re committing malpractice as a defense attorney if you don’t pursue a plea even if your client proclaims innocence.

Didn’t mean he should leave the kid alone with detectives. Didn’t mean he should have had his investigator coerce a confession out of his client. Didn’t mean they needed to create evidence for the prosecution, in the form of coerced drawings. Kachinsky went about that all very poorly.

He’s a god damn judge now, I read? Come on.

There might be something there in the trial record that grants Avery a new attorney. I just don’t feel as if it is in the documentary.

Steven Avery not receiving a fair trial really comes back to a few points: the planting of evidence and Brendan’s confession. Brendan’s confession wasn’t used at trial, so, we can dismiss that when discussing whether Avery’s trial was fair. As for the planting of evidence…none of that is a slam dunk. And, Avery’s defense had the opportunity to attack that evidence.

avery5Here’s something Dean Strang said at the trial that stuck with me. When talking about the cops framing Steven, he said something along the lines of…police frame people to make a weak case against a guilty person stronger.

And, with those brief words, you’re setting fire to your reasonable doubt.

It was one of the most cringe inducing moments of this documentary that did not include Brendan Dassey. The point Strang is going for, of course, was that cops assumed that Avery was guilty. But, it was awkwardly made in form and diminishing to the building of their case.

I don’t want to disparage the individual attorneys much. I’ll stop with that example. It’s difficult to judge an attorney based on only a fraction of the trial work that they performed. But, this was terrible. Don’t invite jurors to throw out your reasonable doubt.

And, hopefully they pounced on Ken Kratz, the prosecutor (I can’t believe I haven’t used his name before now), when he said that reasonable doubt is for the innocent. F*** you. Hopefully Strang or Buting followed this up with a correct statement of reasonable doubt, and then, hopefully the Judge followed it up with an instruction to the jury about what is reasonable doubt.

Avery’s case is captivating because there’s a lot of evidence that leans heavily towards being out of the ordinary, coupled with the case not having a clear plan of execution. No one can say definitively how or where Theresa Halbach was murdered. It leads to the intrigue that surrounds the series.

There are a lot of flaws represented by the series, but, ultimately, what Making a Murderer shows is an exhausting fight against those flaws. There’s a lot that I didn’t touch on here, and there are so many moments that stand out to different people (the calling in of the RAV4 license plate, by police, days before it was found; the top of the blood container and other DNA evidence). It’s impossible to touch on everything. Feel free to discuss in the comments.

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  1. Acadia Einstein

    I am starting to believe the sheriff who said it would have been easier to kill him.

  2. Chikuba Kyojin-Shu

    It would be so interesting if you could find a cop to comment on the police procedures. The “awfulness of Len Kachinsky” is more than matched on the police side.


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