Inside “Making a Murderer” and the Steven Avery Trial

Episode Notes

Transcript

Lawyer 2 Lawyer: Law News and Legal Topics

Inside “Making a Murderer” and the Steven Avery Trial

08/17/2016

Intro: Hello listeners! Just a quick announcement before we get started. As some of you have probably heard in the news, Brendan Dassey’s 2005 conviction was overturned on Friday and he will be released from his Life Sentence within 90 days, unless prosecutors file an appeal.

This happened after we recorded this episode, changing some of the things discussed, but it’s still an interesting episode and worth to listen.

Also, if you want more specifically on Brendan Dassey, check out the defending Brendan Dassey of “Making a Murderer” episode on Planet Lex.

Steven Drizin and Laura Nirider discuss representing Dassey during the appeal process. It’s a great episode. You can listen to it on  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or by searching Planet Lex on iTunes or your Podcast app, that’s all. Enjoy the episode.

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Dean Strang: The issues that “Making a Murderer” raised in the frame of two men’s individual journeys to the justice system but the issues in that frame really were much bigger and raised systemic questions about the administration of criminal justice in this country or really in any country.

Peter Linton-Smith: In the Dassey case, they really focused on his confession on the stabbing. In the Avery case, stabbing is never mentioned. The method of death is the shooting and it just — I was again just stunned how you can prove the same crime happened almost in two different ways.

Intro: Welcome to the award-winning podcast ‘Lawyer 2 Lawyer’ with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in a legal profession. You are listening to Legal Talk Network.

[Music]

Bob Ambrogi: Hello and welcome to ‘Lawyer 2 Lawyer’ on the Legal Talk Network. This is Bob Ambrogi, coming to you from out of Boston, Massachusetts, where I write a blog called LawSites, and also co-host another Legal Talk Network program called ‘Law Technology Now’ along with Monica Bay.

Before we introduce today’s topic, I would like to just take a moment to thank our sponsor Clio. Clio is the world’s leading cloud-based legal practice management software, thousands of lawyers and legal professionals trust Clio to help grow and simplify their practices. You can learn more about Clio at  HYPERLINK “http://www.clio.com” clio.com.

Well, Steven Avery spent 18 years in prison of Wisconsin for rape before DNA evidence exonerated him and he was released in 2003. Two years later, as Avery was in the midst of a $36 million lawsuit against the Manitowoc County Sheriff’s Department over his wrongful arrest and imprisonment and just shortly after his lawyer had deposed some of the key targets of that lawsuit, Avery and his nephew Brendan Dassey were arrested for the murder of Teresa Halbach; a photographer who had come to Avery’s property to take pictures of a vehicle he had for sale.

The resulting investigation and 2007 trial was made into the Netflix documentary series “Making a Murderer”. The documentary which raised questions about whether the Sheriff’s Department had framed Avery, became a sensation and made stars of Avery’s defense lawyers Dean Strang and Jerry Buting.

In the end, Avery was found guilty and sentenced to life in imprison without the possibility of parole. A new attorney has now taken on Avery’s case, and perhaps not surprisingly, Netflix has recently announced that it will produce more episodes following Avery’s continuing fight to prove his innocence.

Today on ‘Lawyer 2 Lawyer’, we are going to talk about this case and talk about the documentary with one of Avery’s defense lawyers as well as with one of the news reporters who covered the trial.

So let me begin by introducing our guests, and first of all, I am happy to welcome to ‘Lawyer 2 Lawyer’, Dean Strang along with Jerry Buting, who was one of the attorneys who represented Steven Avery.

Dean is a criminal defense lawyer in Madison, Wisconsin, in addition to being known for his work in the Avery trial, he is also well-known for his first book, ‘Worse than the Devil: Anarchists, Clarence Darrow, and Justice in a Time of Terror’.

Dean served five years as Wisconsin’s first federal defender, co-founded the law firm Strang Bradley, LLC. He is also an adjunct professor at Marquette University Law School, University of Wisconsin Law School in the University of Wisconsin’s Division of Continuing Educations. Dean is a member of the American Law Institute and serves on several charity boards including Wisconsin Innocence Project. His second book will be published early in 2018.

Welcome to ‘Lawyer 2 Lawyer’, Dean Strang.

Dean Strang: Thank you for having me.

(00:05:00)

Bob Ambrogi: And next, I would like to introduce Peter Linton-Smith. Peter was a television news reporter for 24 years covering primarily courts. Peter has covered cases ranging from first-degree murder, wrongful death, products liability, copyright dispute, employment, labor disputes. Peter was one of the reporters who covered Steven Avery’s trial, both his civil case and his criminal case between 2003 and 2007. He currently works at a law firm in Denver; Leventhal & Puga in Denver, Colorado. Welcome to the show Peter Linton-Smith.

Peter Linton-Smith: Thank you. It’s good to be here.

Bob Ambrogi: Well thanks. Dean, I want to ask you, in one of the early episodes, say, when, not long after you had come on to the program as one of Steven Avery’s defense counsel, there was a clip in which you are watching news video on a monitor which as I recall was the Sheriff who said something along the lines of why would I frame it when I could have just killed him? Did you at that point or at any point question what the heck you had gotten yourself into here?

Dean Strang: I certainly did at that point and probably at other points or at least reflected on what an atypical case Steven Avery’s was, just for the massive pretrial publicity he had received, and also the intersection of the civil lawsuit against the Sheriff’s Department with its initially hidden and then later slowly revealed role in the investigation of the ensuing murder case.

Bob Ambrogi: You and Jerry Buting are currently on a nationwide tour, you are calling “A Conversation on Justice”, in which you are discussing the larger implications of the case. I read that at least part of what motivated you and Jerry to want to launch this tour was, what you perceived as a lack of depth in news media coverage of the case. What was it that you wanted the public to understand about this case that you felt was not being conveyed to them through news coverage?

Dean Strang: Well, you are describing accurately our motivation, but understand that that motivation arose after “Making a Murderer” came out in December 2015, and what Jerry and I reacted to then was the tendency especially it seemed to us, it’s worse at the national level of large media outlets to spend 90 seconds or 2 minutes or maybe 3 minutes at most interviewing us or others who’d participated in “Making a Murderer” and to delve no more deeply than to discuss Internet meetings or overnight pop culture or phenomena that we were supposed to be.

Jerry and I both thought there was a great deal more to say about the issues that “Making a Murderer” raised in the frame of two men’s individual journeys to the justice system, but the issues in that frame really were much bigger and raised systemic questions about the administration of criminal justice in this country, really in any country.

Jerry and I thought a lot of those were worthy of a long-formed conversation, which is why we were drawn not just to the idea of a speaking tour, if you will, to the general public, but also to long-form for like this podcast, for example, or other lengthy or more thoughtful interviews.

Bob Ambrogi: Peter Linton-Smith, you were there covering this case, how well do you think the news media did in reporting on the trial and on some of the broader issues that it raised about the justice system?

Peter Linton-Smith: I got some mixed feelings about how the media did. Since I am no longer a member of the media, I am free to opine on our performance back then. I think to a certain extent it is difficult to cover the Avery story with all its complexity, with all its levels in the day-to-day media. I think the television media, the newspaper media, the radio folks who report on a daily basis did a reasonably good job on covering the hits, runs, and errors, but I think just by virtue of the constraints of time they have difficulty really digging deeper into the broader criminal justice issues.

So, to a certain extent I kind of give him a pass on that, but I also think that there was a tendency — I mean the media is a human endeavor and reporters tend to follow the path of least resistance and this was a case where there was the proverbial truck load of evidence and they simply again pursued the path of least resistance, all the evidence is there, it’s likely that he did it.

(00:10:24)

I think the good news here is though that the kind of news media attention that was generated by the case ultimately led to the “Making of a Murderer”, and this deeper reflection on the criminal justice system as a whole and this case in particular.

Bob Ambrogi: What about that documentary, the documentary has received its share of criticism by those who say it was skewed in Avery’s favor that it left out critical evidence that was unfavorable to him.

Dean, let me ask you first, how fair or acute do you think the documentary was in presenting what happened in this case?

Dean Strang: I think the editorial choices the filmmakers made were consistently fair, and that’s not to say that narrative, the viewer of “Making a Murderer” sees and hears and is left with is congruent with the predominant narrative you would have heard through the print and electronic media at the time of the trial.

And a part of that though is just attributable though I think to a couple of pretty straightforward factors. One, Peter is exactly right; the media on a day-to-day basis operate within a whole set of time constraints, viewership constraints, commercial constraints that really don’t apply or bind at all a film, or a series, whatever you would call Netflix presentation of “Making a Murderer”.

Second, the family of the accused here cooperated with the filmmakers. So you got to know Mr. Avery’s mother, Brendan Dassey’s grandmother, you got to know his sister who is Brendan Dassey’s mother, his father, you saw them at home, and they became three-dimensional people in a way that just does not happen in again, day-to-day media coverage, as Peter put it with hits, runs, and errors; and for very understandable reasons the Halbach family decided not to participate in the documentary. No criticism at all of them for that decision on my part. I would have made the same decision, had I been forced into their unfortunate shooters, but they didn’t, so you didn’t see the victim’s family, and the prosecution team chose not to participate, whereas the defense team did participate.

That wasn’t the fault of the filmmakers, they asked everybody, they sought everybody’s participation, but the choices that lawyers, law enforcement people and then family members; both of the victim’s family and the accused’s family made, I think to some extent influenced heavily the narrative that the filmmakers did and could present.

Bob Ambrogi: Peter, what about from where you sat? What was your perception of the documentary, and how it compared to what you saw it happen as a news reporter there?

Peter Linton-Smith: I thought the documentary was excellent, and if you spend any amount of time in the media you’re going to be accused from time-to-time of doing a story that may be unfair to one side or the other, and the reaction that I would get from people when I told them my feelings, raised a few eyebrows. And I would tell them, “Look, I’m not obligated to give you a fair story. I’m obligated to give you fair reporting, and you have as much to do with the end result of this story as I do.”

In the media there is no formal discovery process. We don’t have subpoena power, and so all we can do, is ask for your side of the story. And as Dean pointed out, the filmmakers in this case gave the same opportunities to the State that they gave to the defense, and the State opted not to participate. And I think it’s a little disingenuous at this point once the film has come out to complain that it’s in some way one-sided.

(00:14:52)

What I think the filmmakers did was, quite frankly, bend over backwards to try and show the State’s side of the case. I didn’t hold the stopwatch to it, but I think the amount of time that the State was on camera versus the amount of time that Dean and Jerry were on camera was roughly equivalent. And the end result is largely the result of the decisions made by the parties involved to participate or not to, and the viewer is left with that end product, and I think the end product may have been somewhat favorable to Avery, but I think in the end it was fair.

Bob Ambrogi: Well, one of the things we saw because of the fact that as Dean said the defense team agreed to cooperate with the filmmakers was some of the conversations, Dean, between you and Jerry outside of the courtroom as you were sitting around strategizing about the case or meeting with family members.

I think a lot of lawyers are still not even comfortable with the idea of cameras in the courtroom. I am wondering what it was like to put on a defense with cameras looking over your shoulder even outside the courtroom. Were you ever afraid that the presence of the cameras would somehow detract from your defense?

Dean Strang: Yes, and it was uncomfortable, I think more for me than for Jerry actually, just because of our different temperaments. The filming in the courtroom was not at all uncomfortable because it was almost invisible to the participants that courtroom was set up for the media. So the cameras were small and ceiling-mounted. They were remotely controlled from a media room right behind the gallery in the courtroom, so that was easy, and the only awareness, reminder that we had in the courtroom that we were being filmed is the judge asked us if we were allowed to wear mikes.

Outside the courtroom was very different, as you point out, Bob, there it was a camera, and some degree of setup. Now, the filmmakers had a small crew at the time, they were quick at setting up and then taking down, so it was as un-intrusive as it could be, and they also didn’t chase us; they scheduled times with us when they could film us.

But I was very self-conscious about it. I wasn’t worried by the time we actually did it about privilege issues, because we had sorted those out with the filmmakers. There was just a firm line that we wouldn’t cross, we wouldn’t disclose privileged communications.

There is a separate ethical issue, as lawyers know, on confidential information related to a representation, and with that we couldn’t have participated really without the client agreeing to allow us to share confidential as opposed to privileged information.

So there he agreed that the client’s family very much wanted us to participate in the film once we joined the defense about four months after Mr. Avery was charged and almost four months after the filmmakers had set up camp and begun work on the film. But I never really did get terribly comfortable sort of with the out of court, sitting on the sofa kind of stuff or being filmed in the car. When I look at “Making a Murderer” I see and hear a Dean Strang who is conscious of the camera.

Bob Ambrogi: Dean, I know that I am going to lose you in just a couple of minutes because you have a conflict. If you have a moment, as you are going around on the speaking tour, I know you talked a lot about the need for people to work to improve the criminal justice system. There was a line in the documentary; I think it was Jerry who said, good luck in this criminal justice system if you are ever accused of a crime. What’s your message as you are growing around speaking, what are you telling people they should be doing to bring about change in the system?

Dean Strang: Well, first of all, accepting that it’s fallible and looking past the often blustery insistence of judges, prosecutors, defense lawyers, police officers that the outcomes are highly reliable and that justice has been done. I think the public needs to take a lot less of that at face value and to be much more skeptical of claims of the reliability of our system.

I think people also need to engage with the humanity of the various actors in the system. People involuntarily drawn in, like victims and the accused or their respective families, and the people voluntarily who work in the system as its professionals.

(00:19:58)

And when I say engage with the humanity of these people, understand that we have got all the usual human strengths and weaknesses, we have good days and bad days, we act on motives that are pure and noble in some ways and entirely impure and ignoble in other ways, and just being aware of this and I guess trying to get a peek in to the black box that is a courthouse.

And then we have also urged people really to take on with less reluctance the role of juror when their time comes and understand how hard that role is to perform honestly and courageously, but how important it is and how Jerry and I both made the point a number of times that when you serve as a courageous and honest juror in either a civil or a criminal case in our system, you are upholding the very same value that United States Armed Forces get sent to Afghanistan or Iraq or other foreign battlefields to uphold, and you get to do it at home without the threat that somebody will blow up your Humvee.

So we tried to give something of a pep talk to people, both on engaging with the system in whatever ways excite them, whatever ways pull them in, whether that’s victims rights, fully informed juries, racial disparities, judicial elections, whatever it is that lights you up, mandatory minimum sentences, the death penalty, for or against it, to try to get people to engage as good citizens in that respect and to work with the humanity of the system, but then also to grab and make the best of the opportunity to serve as a juror when it comes around.

Bob Ambrogi: Dean, I think you have to drop, unless I am wrong; I would love to have you longer, but if you need to go, I will let you go. Peter, maybe you can stay with us for a moment. And Dean, let me just thank you very much for taking the time to be with us. It has been a real pleasure to speak with you today.

Dean Strang: Thanks Bob and good to hear Peter, as always.

Peter Linton-Smith: It’s good to hear you Dean.

Bob Ambrogi: Thanks a lot Dean Strang, one of the defense attorneys in “Making a Murderer”. And before we move on to our next segment we are going to take a quick break to hear a message from our sponsor.

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Welcome back to Lawyer to Lawyer. This is Bob Ambrogi and we are talking today with Dean Strang, one of the defense lawyers in the documentary “Making a Murderer” and also Peter Linton-Smith, one of the news reporters who covered the trial.

Peter, before I let you go I just wanted to give our audience — to hear a little bit more from you. I mean, after your experience of covering this trial, I can only imagine that those in the media pool had any number of conversations downtimes during this trial about what was happening there, but what was your take away about the criminal justice system, not just from here, but from covering it for years?

Peter Linton-Smith: It was by far one of the most interesting stories I have ever covered, but at the same time it was one of the most disturbing. I think the general feeling among the media was privately when Avery was arrested, that this was most likely going to be a not guilty by reason of insanity plea.

You have to keep in mind that in late 2003 through 2004, Avery had really become the name associated with wrongful convictions in the State of Wisconsin, if not in the country, in large part because of, if not outright law enforcement misconduct, certainly law enforcement sloppiness in 1985. He spent 18 years in prison for a crime he didn’t commit, he turns around and sues and then gets arrested.

And when the defense began or the defense case began to emerge I think the feeling, again, privately among the media was this is never going to work, it’s just not plausible.

(00:24:54)

And then as the evidence began to develop and materialize it was surprising. I think we have this predisposition to trust law enforcement, to trust the criminal justice system, our judges, our prosecutors, but when you look at this case it is very, very difficult for anyone I think to take an objective look at this case and say that law enforcement functioned well, that the prosecution functioned well, and that the criminal justice system functioned well. And it’s a frightening case, because it’s a story that could happen to anyone.

Bob Ambrogi: Was there anything from your perspective in the courtroom that either the defense team or the prosecution team did during the course of the trial that from your perspective really made a difference in how the case turned out.

Peter Linton-Smith: I don’t think anything — either side did anything specifically with regard to how the case turned out, and I think it’s — one of the things that I am glad that the Netflix series has done is sparked this deeper, broader conversations about the criminal justice system.

I think that when we think about the criminal justice system, we have these things of presumption of innocence, burden of proof, guilt beyond a reasonable doubt, and I don’t think we really apply the fact that these are not just abstract concepts, these are actual things written into jury instructions.

And in this case I am still frankly baffled as to how the jury came up with the verdict that they did. I have sat in court for 20 plus years and I have attempted to put myself in the position of the juror and tried to understand how they connected each evidentiary dot to the other and reach the verdict that they did. And in this case I just cannot quite understand how they reached that verdict.

And when the deliberations went on as long as they did, the conventional wisdom is that the longer the jury is out, the more favorable it is to the defendant, and they were out for a Thursday afternoon, all day Friday, all day Saturday, and actually asked permission to come back and deliberate on Sunday, and did so all that day, and the verdict came in on the Sunday evening about 6 o’clock, and when it came back guilty on the first degree murder, but not guilty on the mutilation of a corpse, even the verdict form itself just didn’t add up.

Bob Ambrogi: Did you make any attempt to interview any of the jurors after the case?

Peter Linton-Smith: No, and they have maintained their silence throughout, and in the series only the juror who was dismissed because his daughter had been in a car accident during the deliberation spoke, and that’s the only thing we have gotten from any of the jurors. They have maintained some sort of a pact through all these years surprisingly not to speak publicly, and I am still surprised that there hasn’t been a crack in that armor.

Bob Ambrogi: And did you cover any of the Brendan Dassey case?

Peter Linton-Smith: I did.

Bob Ambrogi: Was there a contrast that you saw in that trial versus Avery’s trial, either in how the cases were presented or just how they were received by the public?

Peter Linton-Smith: Well, the key difference of course in the Avery and the Dassey case was that Dassey’s confession was the key piece of evidence in his case, and of course there was quite a bit of discussion around the alleged stabbing of Teresa Halbach.

What I found interesting was that you almost had two different theories of the case based on the same crime; in the Dassey case they really focused on his confession on the stabbing; in the Avery case the stabbing is never mentioned, the method of death is the shooting and it just — I was again just stunned how you can prove the same crime happened almost in two different ways.

Bob Ambrogi: Yeah, what troubled me most about watching the documentary about the Dassey case was the initial defense attorney Len Kachinsky, who just seemed to, not just offer poor defense, but almost a defense orchestrated against his client. And there was this scene in the documentary, I don’t know whether any of this — I guess some of this came out during the trial of Kachinsky’s investigator questioning Brandon Dassey, and the documentary almost made it seem as if he was attempting to very clearly steer him toward a particular statement, into making a confession. I don’t know if any of that came out in the trial, but it was just awful.

(00:29:54)

Peter Linton-Smith: Yeah, it was pretty stunning. At the time of the trial and at the time of the case, none of us in the media knew just how bad things had gotten with Kachinsky. We knew that the primary reason for his replacement was the tension between the Dassey family and their claim of lack of aggressive defense and so he was replaced.

So what we knew at the time was that there was this difference of opinion; we just didn’t realize just how bad things had gotten, and it’s surprising that he was taken off the a public defender list for only six months for his conduct in that case.

Bob Ambrogi: Well, Peter, we are just about at the end of our time for this program, and if you would care to offer any final thoughts about this experience, about your coverage of the case, about the documentary, anything at all, we welcome you to do that at this point.

Peter Linton-Smith: Sure. Well, the case is not over. As you know, Avery does have a new set of attorneys and she has a fairly good track record of winning exonerations or freeing those who have been wrongfully accused, and she has at least suggested that there is some new physical evidence, some new evidence that may actually confirm or at least corroborate the allegations that of a frame up. Her motions for a new trial are currently due on August 29. So I have definitely got that circled on my calendar; I can’t wait to see the motion.

Bob Ambrogi: And of course as we are recording this, just yesterday there was news that Steven Avery had written a letter to a magazine ‘In Touch Weekly’ in which he claimed his attorneys did not effectively represent him and did not effectively investigate the case.

Peter Linton-Smith: I saw that and I was actually a little surprised by it, because I will tell you, having covered courts for 20 plus years, I don’t think I have ever seen a more vigorous defense or two better advocates for their clients than Dean Strang and Jerry Buting. They did a masterful job.

I suspect that Steven is frustrated, as well he should be, he has lost another nine years of his life, and it’s understandable that he would lash out somewhere, but I think that it’s going to be interesting to see what happens on August 29.

Bob Ambrogi: It will be. Well, Peter Linton-Smith, thank you very much for taking the time to be with us. It has really been interesting to hear your perspective on this case.

Peter Linton-Smith: Thank you Bob!

Bob Ambrogi: And that brings us to the end of this episode of Lawyer 2 Lawyer. This is Bob Ambrogi. We appreciate your listening. Please join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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