Making a Murderer: Changing the Conversation
Did he do it?
That’s the question being debated all over the country as hundreds of thousands of people watch Making a Murderer, question what happened in Manitowoc, Wisconsin, and sign petitions supporting pardons or new trials for Steven Avery and Brendan Dassey. Pro-prosecution pundits such as Nancy Grace, alarmed at the groundswell of support for the two men, are screaming that the men are guilty. They are joined by ex Calumet County prosecutor Ken Kratz, who convinced two separate juries to convict the men before he was forced to resign his position and disciplined by the bar for sexting domestic violence victims whose cases he was prosecuting.
It’s time for us in public defense to change the national conversation to the important issues of injustice raised by the series that apply not just to the two convicted in Wisconsin, but that happen to our clients every day. The contrast shown by the film between the representation Steven Avery received from his two outstanding lawyers (both of whom have worked as public defenders in the past) and what happened to Brendan Dassey, is what we need to highlight to those in our states who fund public defense so we can truly achieve just results for our clients.
The film and its popularity have created a unique opportunity for us to change the way governmental bodies view indigent defense. Legislators, power brokers and politicians rarely concern themselves with public defense other than to worry about how cheaply they can get away with funding defense agencies or contracts with private lawyers. The outrage over Brendan’s representation by appointed counsel (DO NOT confuse his first lawyer with the outstanding staff at the Wisconsin Public Defender Office) opens the door for us to discuss how to improve the quality of representation for all the indigent Brendans of the world. We need to bring our agenda of better pay, reasonable caseloads and money for good experts to the fore so our clients have the same opportunity to defend themselves against the power of the state, malicious prosecutors and biased police investigations.
Sufficient funding for public defense is not the only important issue on our agenda. Brendan Dassey’s interrogation was an outrage. The documentary only shows a small slice of what occurred. Brendan was interrogated five times and each time the police took advantage of his youth and intellectual limitations by using sophisticated interrogation techniques that are employed every day by American law enforcement. Some of these methods are taught all over the country by the leading trainers in police interrogations, John E. Reid and Associates; but their latest books and articles acknowledge that these techniques should not be used on juveniles and cognitively disabled persons because of the risk of false confessions. Furthermore, Reid and other trainers make it clear that police must never contaminate a statement by telling the subject facts that only a true perpetrator would know. During Brendan’s interrogations, police fed him facts and got him to change his statement to conform to those facts so his statements would fit their theories of what occurred. Fortunately, for Brendan, his interrogations were recorded in their entirety, giving viewers a taste of how unfair it is to use such tactics against a vulnerable suspect. While many jurisdictions now record police interrogations, it’s essential that this be mandated everywhere. We should follow the example set by Great Britain, where law enforcement are no longer permitted to lie to suspects about evidence, promise them leniency and other types of interrogation techniques known to induce false confessions. Courts and legislatures must address this issue and proscribe use of these types of techniques, especially on our most vulnerable citizens.
The film also underscores how fragile the presumption of innocence is and how easily a press-hungry prosecutor can destroy the presumption well before trial. Prosecutor Kratz’s grandstanding press conferences created an environment where it became impossible for Avery or Dassey to get a fair trial. Recent interviews with jurors from the Avery case have made it clear that jurors adopted facts to reach their verdict that were never presented in the trial, including facts from Dassey’s confession.. The allegations and “facts” were leaked to the press and broadcast to the public by Kratz and law enforcement, poisoning both Dassey and Avery’s chances of getting a fair trial. What happened was a gross violation of professional ethics and prosecutors who conduct themselves in this manner and try their cases in the media should be subject to professional discipline.
Finally, the courts must adopt stricter standards for the admission of forensic science in the courtroom. Prosecutors called an FBI expert to testify about an unvalidated test and claimed this proved that Avery’s blood found by law enforcement in the victim’s car could not have been planted by the police because the preservative EDTA was not found in the blood. As the National Academy of Sciences noted in it’s 2009 publication, Strengthening Forensic Science in the United States, a Path Forward, many types of evidence routinely admitted in our courts are not validated and some are outright junk science that have no place in a courtroom.
Making a Murderer has given us a golden opportunity to advocate for change. Even many who feel Steven Avery is guilty are sensitive to the issues raised by the film with respect to public defense, false confessions, prosecutorial misconduct and flawed forensic science. There is no time like the present to keep the discussion going about issues that are much more important than whether Avery or Dassey committed these crimes. Let’s raise our voices now while we have the right kind of attention focused on what’s wrong with the criminal justice system.