Defending Steven Avery, with Making A Murderer’s Dean Strang

Episode Notes

Transcript

ABA Law Student Podcast

Defending Steven Avery, with Making A Murderer’s Dean Strang

04/25/2017

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Intro: Welcome to the official ABA Law Student Podcast, where we talk about issues that affect law students and recent grads. From finals and graduation to the bar exam and finding a job, this show is your trusted resource for the next big step. You are listening to the Legal Talk Network.

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Chris Morgan: Hello and welcome to another edition of the ABA Law Student Podcast here on Legal Talk Network. I am Chris Morgan, Governor of the Law Student Division’s 12th Circuit and a 3L at the Gonzaga University School of Law in Spokane, Washington.

Joining us today is Mr. Dean Strang. Dean practices law in Madison, Wisconsin as a shareholder at Strang Bradley. He was Wisconsin’s first Federal Defender and has argued in the United States Supreme Court, five Federal Circuits, and the Wisconsin Supreme Court.

Dean is a lecturer on the adjunct faculty at the University of Virginia School of Law. And his first book ‘Worse Than the Devil: Anarchists, Clarence Darrow and Justice in a Time of Terror’ was published in 2013.

He was recently featured as one of Steven Avery’s lead defense attorneys in the award-winning Netflix documentary series ‘Making a Murderer’.

Hey Dean, thanks so much for joining us here on the ABA Law Student Podcast. I really appreciate you taking the time.

Dean Strang: Thank you Chris and everybody else for having me.

Chris Morgan: So let’s start with a little bit about you. Did you grow up in the Wisconsin area?

Dean Strang: I did. I was born on the south side of Milwaukee and spent most of my childhood in a suburb just south west of Milwaukee.

Chris Morgan: Did you always know that you wanted to go to law school or was it something, an interest that you developed kind of as you got older?

Dean Strang: The latter. I had no intention of going to law school until I was really in my junior year in college. I had always intended to be an editorial cartoonist, as long as I can remember, having a plan for the work I wanted to do, and it was my junior year in college when I decided that as much as I really loved political cartooning, it probably wasn’t going to be a good 50 year job for me, for a variety of reasons. That turned out I think to be a remarkably mature decision, but I really didn’t have much of a plan B after scrapping plan A.

My dad’s older sister was a lawyer, still is a lawyer, and sort of the brightest person in the family and so he thought that law school might be a good idea for me. I resisted that somewhat, but this would have been 1981, going into 1982, and at that time there was, as you may well know, just a voracious demand for young lawyers coming out of law school, you could almost be a zucchini and get into law school. And so in a sense it was a path of least resistance for me at the time.

Chris Morgan: So after graduating law school did you always know that you wanted to practice criminal law or did you bounce around in some other areas of practice for a while?

Dean Strang: The very candid answer is no. I ended up in criminal law really by serendipity. I had no intention of practicing criminal law and indeed I had no plans from the beginning to the end of law school of ever participating in any litigation or any courtroom oriented practice, so it was really serendipity that I ended up in criminal law.

I started out of law school with a large civil firm in Milwaukee. My intention had been to do employee benefits work, but the firm after I accepted its offer, the firm told me, well, they didn’t really need anybody in the employee benefits department; they did need somebody in the litigation department.

I wasn’t very happy about that, but they tried to mollify me, in part by saying, I could do employee benefits litigation and indeed they kept that promise, so much of the litigation I did for the first two-and-a-half years out of law school was ERISA litigation, employee benefits litigation, and then a series of accidents led me into criminal defense eventually.

Chris Morgan: So having your own firm at the time when you guys took the Steven Avery case, were you familiar before that about his pending lawsuit against Manitowoc County, was it something that was on your radar maybe only in the news?

(00:04:55)

Dean Strang: Well, yes, I was familiar with the pending lawsuit. If you paid any attention to local news and lived in Wisconsin at the time, you were aware of that, of his exoneration in 2003 and then the later federal civil rights litigation. So I knew what any reader of the newspaper at the time would have known.

I also happened to know the two lawyers who were handling that federal civil case for Mr. Avery; one of them had been a former partner of mine and the other I had known just as a — he is a fairly prominent plaintiff’s lawyer in Wisconsin, was then, and is now.

Chris Morgan: So how were Jerry Buting and yourself approached about taking on Steven’s case to begin with?

Dean Strang: Well, the two lawyers I just mentioned is lawyers in the federal case gave Steven Avery Jerry’s name and my name and probably another name or two, knowing those lawyers, as potential lawyers to hire to defend him in the newly filed state murder case.

I think Steven happened to call me first and I met with him. He and I both were interested in bringing Jerry into the case. Jerry and I had worked together on a number of cases before Mr. Avery’s and always had enjoyed collaborating. Jerry and I view our skills as being complementary and we have compatible personalities. So we really always have looked forward to working with one another, and this seemed like a good opportunity to do that. Steven Avery agreed and that’s how it happened.

Chris Morgan: So once you guys were hired it sounds like it’s a ways away from where you were practicing. I have heard, did you and Jerry have to rent a place for the length of the trial?

Dean Strang: We did. We did. The courthouse was two, two-and-a-half hours from where I live in Madison, Wisconsin and over an hour-and-a-half from where Jerry lives in a suburb on the west side of Milwaukee, so that was just too far, way too far to consider commuting during the trial.

So Jerry and I rented furnished apartments about 10 or 15 minutes from the little courthouse where the trial was held. We had separate apartments, but I was up and he was down in the same building.

Chris Morgan: Starting off initially, when you are first starting to work on the case, what was your understanding of what Manitowoc County’s involvement in the case would be or kind of what it should be, given the conflict of interest?

Dean Strang: I knew from the saturation media during the days when Teresa Halbach was considered a missing person that the Manitowoc County Sheriff’s Department was saying publicly itself and through others that it had recused itself from the investigation and had turned everything over to the neighboring county’s Sheriff’s Department, and for that matter, to the neighboring county’s district attorney. That’s what anybody listening to news was told during that period of time and in the weeks following.

I learned I think after I began to represent Mr. Avery that it just wasn’t so, that in fact the Manitowoc County Sheriff’s Department had participated importantly in every step of the investigation, and indeed that most of the significant physical evidence from the prosecution’s perspective actually had been found by or first in the custody of the Manitowoc County Sheriff’s Department, notwithstanding its supposed recusal.

Chris Morgan: Did you and Jerry do your own independent search of the Avery grounds; I know it’s a pretty big area to cover, was that one of the first things on your guys’ radar was to go out there and kind of explore the grounds yourself?

Dean Strang: Yes, and I wouldn’t describe it as a search, but very much a site visit. And I am a believer that in every case, I don’t care whether it’s a white collar fraud case or what it is, but in every case one really needs to go to the scene, needs to go to the milieu of the client and of the alleged crime. You really need to get a feel for place and I view that as essential.

So that was something Jerry and I did immediately after he got involved, and I may already have been up there once in the week or ten days between my entry into the case and Jerry’s.

(00:10:00)

Chris Morgan: So flash forward to the trial, there’s a scene in the documentary that kind of struck me, and I think it struck a lot of people, where you are talking about the presumption of innocence in Steven’s trial and you tell the judge essentially that the state should start every criminal case swimming upstream, and the strong current against which they should be swimming is the presumption of innocence. In your view, was the presumption of Steven Avery’s innocence eliminated before this trial even started?

Dean Strang: Yes, functionally it was. I think it would be hard to argue otherwise with a straight face. The pervasive pretrial publicity, the antipathy against him among many in his home county, and especially one of the prosecutor’s press conferences, the one on March 2, 2006, the day after Brendan Dassey was arrested, effectively destroyed a presumption of innocence.

And Steven Avery entered that trial presumed guilty as a practical matter, witnessed the fact that something like 129 out of 130 jurors who were considered for empanelment on his trial jury answered their questionnaire saying that they already believed that he was guilty or probably guilty.

Chris Morgan: At the voir dire stage when you guys were picking in and paneling a jury to begin with, did you find it difficult to find suitable jurors who weren’t already too predisposed to make a neutral evaluation of the case?

Dean Strang: Yes, very difficult. I just told you where we started with the large jury pool overwhelmingly predisposed to believe Mr. Avery was guilty. And then we had six peremptory strikes with which to work during the roughly week that we spent on jury selection. And most jurors if they are interested in serving on a high profile case, as I think many of the members here were, are able to navigate their way through questions that might disclose cause to strike them.

Panel members are sworn to tell the truth during jury selection to the court’s questions and questions from counsel, but it’s often very clear from the tenor of the question what answer is desired by the judge or by the prosecutor or for that matter the defense lawyer in asking a question. And jurors who would like to serve I think often can frame their answers in such a way that they don’t disclose cause to strike them. So you are left with a hopelessly inadequate number of peremptory strikes to try to remove the jurors least suited to judge someone fairly and impartially.

Chris Morgan: So there’s another scene, perhaps another one of those that really took audiences back a little bit, where Manitowoc County Sheriff Kenneth Petersen says on an interview that it might have been easier to just kill Steven Avery than to frame him. What was going through your mind when you saw that interview for the first time?

Dean Strang: I was stunned would be an overstatement, but not by much. I have never known just exactly how to assemble the attitude of a law enforcement officer who might give voice to that kind of sentiment. Is he suggesting that in his mind morally it would have been possible to kill Steven Avery? Is he suggesting that these are rough moral equivalencies being suggested? Is he simply ruminating foolishly aloud to a reporter? I have never even known as I say how to assemble what the frame of mind of an experienced law enforcement officer might have been in making that sort of preposterous comment. And it still speaks out to me is something that just is askew from the sort of way that I expect and by experience have come to know that experienced professional law enforcement officers look at the world and their jobs.

(00:14:54)

Chris Morgan: So many people ask the question, if not Steven Avery, then who? I am curious, did the judge limit your and Jerry’s ability to present alternative theories for who may have killed Teresa Halbach?

Dean Strang: Yes, the judge precluded us offering any specific alternate possible perpetrator. What he did specifically is hold that none of the eight possible suspects we tendered and briefed, as to none of those were we able to meet the standard that he devised, which was that we had to show opportunity to commit the crime, a possible propensity, if you will, to commit the crime, which was at that point settled Wisconsin law, and I think not exceptionable.

But he added a third requirement which is that we show motive of a possible alternate suspect, and that made it impossible, because now the admissibility or availability of an alternate suspect, evidence about an alternate suspect was made to turn on in effect the character of the victim. That is if you had to show someone who had a reason to kill this young woman, a motive or a reason for wanting her dead, no one possibly could show that. Why? Because she had good character. She was young. She had given no offense to anyone on the planet, so far as I know, and nobody had any possible reason, rational reason to want her dead.

So there is a reason that the prosecution is never required to prove motive in a murder case, but here the judge imposed on the defense a burden of proving motive if we wanted to offer alternate suspects. That functionally made it impossible to offer alternate suspects and indeed the judge foreclosed that evidence.

That was a very difficult ruling for the defense, because the question you asked, if not Steven Avery, who, Jerry and I knew at the outset every juror would be asking that question as well, and we weren’t then allowed to try to provide an answer.

Chris Morgan: I have always thought, and obviously this is in my infancy as a law student and young lawyer that sometimes the public kind of has a fundamental misunderstanding or a hard time understanding the burden of proof in a criminal case and what reasonable doubt is all about. So my question is, how would you define reasonable doubt and do you think the prosecution here was able to prove their case beyond a reasonable doubt?

Dean Strang: Well, you have got a premise in there and then two questions. I think your premise is correct. I think the public in general struggles with burdens of proof in a criminal case, what they mean and how to differentiate the highest standard proof beyond a reasonable doubt from an intermediate standard proof by clear and convincing evidence from the normal civil standard of proof by preponderance. Those are concepts that I think are pretty abstract to most jurors and framed in language that’s not the argot of everyday life. And judges in general, courts in general don’t make it any easy or for jurors in the jury instructions they give trying to explain reasonable doubt. Those instructions again are often couched in language that’s arcane, if not altogether archaic.

My own functional definition of proof beyond a reasonable doubt would be, you know, do you have a doubt for which you can articulate a reason or practically speaking, if it was your brother on trial, would you be willing to listen to the evidence in a fair-minded way and turn to your brother and say, yes, I am prepared to convict you.

Chris Morgan: Do you think that the prosecution was able to prove their case here beyond a reasonable doubt?

Dean Strang: I can’t speak to how the jurors perceived the evidence here. Their verdict at least asserts that they found the proof sufficient against Mr. Avery. What I can say is that, and I try to be as objective and fair as I can be and I look back at the evidence I heard with my front row seat in that trial, I as a juror could not possibly have found that the evidence satisfied me beyond a reasonable doubt that Mr. Avery killed Teresa Halbach.

Chris Morgan: Why do you think people were so taken by ‘Making a Murderer’, kind of after you have had some time to reflect and see how popular that the series has gotten, is there something that stands out to you as to why it’s become so popular or why people are so drawn to this story?

(00:20:02)

Dean Strang: I have only tentative ideas about that and my ideas probably are no better or more sophisticated than yours are Chris. The tentative ideas I have in sort of scattershot fashion would be that the ten episodes of at least the first installment, if you will, of ‘Making a Murderer’ gave over three hours of screen time to actual footage from Steven Avery’s murder trial and then gave another hour, hour-and-a-quarter, hour-and-a-half, something like that to actual footage from Brendan Dassey’s murder trial. And I don’t know, but that might be unprecedented in English language film documentary covering trials. I don’t know. It struck me as more actual trial footage than I had ever seen or heard in any true crime documentary I had ever watched. So that might be part of it.

Another part I think is the story is intrinsically fascinating. Steven Avery’s background as an exoneree who served 18 years wrongfully in prison for a rape he didn’t commit makes him an unusual person, and even unique so far in the annals of American justice. He is the only exoneree who after his release has been charged with a crime as serious as homicide later. So that may be part of the interest.

And there’s no doubt in my mind that the videotaped footage of the police interview of Brendan Dassey grabbed many people viscerally. And even a few years, before 2005 or 2006, videotaping of that interview would not have happened. It was only about that time or in that era that videotaping of police interviews of juveniles in custody or adults for that matter became commonplace.

So those are some thoughts about what may have grabbed attention and interest as thoroughly as this film did.

I know too that for most countries, most nations on this earth, there’s no such thing as cameras in a courtroom. So if you are Irish or if you are Swedish or Dutch, or you lived in the Ivory Coast, this might be your first opportunity to look at what actually happens in a courtroom somewhere, here in American courtroom, but a courtroom as opposed to a dramatic reenactment or a fictional portrayal of courtroom proceedings. So I think internationally some of the appeal of the movie might be rooted in that reality, that this is just an actual peek inside a courtroom at real proceedings as opposed to fictional ones.

Chris Morgan: So going off of that in the age of new technology and media and cameras in the courtroom, how important do you think it is that we maintain that type of transparent ability for the public to see what’s going on, how important is that to preserving the integrity of the system as a whole?

Dean Strang: You know, I don’t know whether this would surprise you or not, I actually have sort of mixed feelings about cameras in courtrooms. On balance it’s probably good for the reasons we might group under the heading transparency, as you just suggested, or allowing a broader swath of the public to watch what government officials are doing in their names.

But there’s also something lost with cameras in the courtroom too. Cameras can affect in subtle ways the behavior of witnesses, the behavior of lawyers and judges. And the camera in the courtroom I think is not a great surrogate or not a fully adequate surrogate for coming down to the courthouse yourself in a country like the United States, in which almost all court proceedings are open to any member of the public, unless it’s a juvenile on trial or there’s some very special reason to close a courtroom.

I realize that most people can’t take the time or aren’t in proximity to come and watch proceedings in courts, but something is lost of course when the camera becomes the observer mediating between the member of the public and the proceedings itself.

(00:25:07)

Chris Morgan: What has life been like for you since the series came out, I know it’s been busy, but have you kind of been all over the place?

Dean Strang: Well, ‘Making a Murderer’ came out on December 18, 2015, a date I won’t soon forget, because it did changed my life dramatically and very quickly after the premiere of this film. And my life is now, some 15 months later, getting back to normal gradually, or back to the life I had before December 18, 2015.

But I don’t regret a moment of what’s happened. I have been very fortunate to hear from thousands of people, almost uniformly thoughtful in their reactions to the film, generous, and kind to me, and emailing me or writing to me or occasionally calling me. The hundreds of encounters I have had on the streets have been polite uniformly.

And I have had a wonderful opportunity to speak and to listen and to engage with a pretty large number of people on issues of criminal justice, much broader than those peculiar to Steven Avery’s case or those particular to Brendan Dassey’s case.

I have had a chance to engage with people who are intrigued by ‘Making a Murderer’, intrigued by those two cases, I have had a chance to engage with them on what is much more general to be drawn from those two cases or any case and what we might think of going forward outside the narrow or sort of isolated context of Manitowoc County, Wisconsin and two cases that now were tried ten years ago.

Chris Morgan: So last question for you here, what advice, if any, do you have for law students who are aspiring to practice criminal defense work in the future?

Dean Strang: Keep track of your own humanity and I think restore and replenish it by recognizing the humanity in every client you represent and in every victim you encounter, every citizen, witness you are asked to examine.

The really beautiful thing about practicing law is it’s an inescapably constantly human endeavor. You see the best of humanity. You see the worst of humanity sometimes. You see human conflict and often very poor resolution of human conflict. And you are part of a very human system, where everybody from a judge on a state Supreme Court, on down to a part-time police officer in a small town, everybody is human, has strengths and weaknesses, and has to be understood as a human being who is a work in progress, just as do our clients and all the other people we encounter in courtrooms.

And I think that while lawyers sometimes burn out on law, you don’t burn out on human beings, you really don’t. If you look for what’s made them who they are, why they act as they do and how you can help them sort of rethink the path they are on or not repeat mistakes they may have made in the past, this can be enormously rewarding work.

If you are interested in criminal defense too, I think you ought to not rule out thinking about prosecution. And it’s not that every criminal defense lawyer could be a prosecutor or every prosecutor a criminal defense lawyer. In fact, my own experience has been that the best prosecutors never could defend, and the best defenders never would be comfortable prosecuting.

But I say law students ought to think at least about prosecuting, because the most direct and most effective way to try to shape justice, shape a just outcome in a given case is to prosecute it, not to defend it. It’s the prosecutor who can decide not to issue charges. It’s the prosecutor who can decide to issue lesser or fewer charges than law enforcement officers may be recommending. It’s the prosecutor who can decide to dismiss a case when she begins to have questions about whether the proof is sufficient or whether continuing the prosecution is simply the right thing to do.

(00:29:58)

Defense lawyers are reactive and often quite disempowered in the process. So for someone who is really motivated to pursue justice, the most immediate opportunity to do that often lies in working in the prosecutor’s office, not the defense office.

That said, if you are a defender, you are a defender, and again, I think the sustenance in that lies in appreciating the rich humanity in which you are immersed all the time in this work.

Chris Morgan: Well, hey, I just want to thank you again Dean. Your work on the Steven Avery case and in ‘Making a Murderer’, I know has done a lot, it’s opened a lot of people’s eyes and either introduced them to the criminal justice system or introduced them to some of the inequalities or problems with transparency that we often find within the criminal justice system.

So I just want to thank you so much again for joining us. I know you are a really busy guy, so I appreciate you taking the time to come on and talk with us.

Dean Strang: It was my pleasure Chris. Thank you very much for asking me.

Chris Morgan: Well, that’s it for us today here on the ABA Law Student Podcast on Legal Talk Network. Thanks again to all of our listeners. Be sure to hop on to iTunes and check out and rate our page and the podcast. You can also reach us on Twitter at @abalsd.

Until next time, I am Chris Morgan. Thanks for tuning in.

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