‘Making a Murderer’ attorney Jerry Buting and former Jefferson Parish prosecutor Jackie Maloney square off for a heated debate about the prosecution versus defense and how the portrayals on FOX TV’s ‘Proven Innocent’ compare to reality. ‘Proven Innocent’ airs Fridays at 9/8c on FOX.
Above the Law – Thinking Like a Lawyer
Bonus Podcast Prosecution v. Defense and the Realities of ‘Proven Innocent’
Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.
Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. Our special editions that we’ve been doing about the television show on FOX, ‘Proven Innocent’, which airs on Fridays at 9/8 central. This is one more in our special edition where we’ve been talking about both the show itself and some of the key issues that the show raises, surrounding wrongful convictions and the criminal justice system.
So, I’m Joe Patrice from Above the Law. With me is Elie Mystal.
Elie Mystal: I’m not wearing makeup.
Joe Patrice: No, you are not wearing makeup. This is the upshot of the audio medium that we work with.
Elie Mystal: It’s really embarrassing when you’re kind of in the makeup chair for TV and they are like they attack your nose like something is desperately wrong with it.
Joe Patrice: Oh, I’m sorry.
Elie Mystal: It’s kind of deflating right before you’re supposed to go out on camera.
Joe Patrice: Yeah, well. Anyway, so we are here and you are having a good day, it seems, you seem happy, which is rare.
Elie Mystal: Well, you know, I’m happy because I went back to playing my old video game as opposed to trying the new video game, which was desperately pissing me off.
Joe Patrice: Oh.
Elie Mystal: Joe, what do you think about the concept of games as a service?
Joe Patrice: Are you talking about the whole idea of you to buy it but then you constantly are having to download new stuff?
Elie Mystal: Yes.
Joe Patrice: Yeah, that seems like a way in which corporations are trying to steal all your money, yeah.
Elie Mystal: It’s terrible. So I bought the new game ‘Anthem’ from the respected game studio BioWare and the game released broken. It was just broken.
Joe Patrice: I’m sorry.
Elie Mystal: There were just things that were not — that were not though through, that were not planned out and it’s very clear they had me pay full price for a video game.
Joe Patrice: That was unfinished.
Elie Mystal: That was unfinished. With the understanding and expectation that because games are service now, I would just like play this broken game for a month, tell them all the things and the rest of the community would tell them all of the reasons why it was broken and then over time, they would fix the game so that it could get to the point where it was worth the —
Joe Patrice: Close to what it was.
Elie Mystal: Close to the cover price before they released new content that I have to pay for. And video games are doing this all across the industry and I cannot tell you how frustrating it is. It wouldn’t have been as frustrating for me when I was 20 and I literally had nothing else to do but like study, right?
Joe Patrice: Right, yeah.
Elie Mystal: I am a grown a**-man. I’ve got two kids, I’ve got like a few hours over the course of a week to play video games and I got to deal with a broken game. What the hell is that?
So yeah — no, last night, I gave up on ‘Anthem’ the game and I went back to ‘Destiny 2’, which was also broken when it came out but it came out a year ago, and so it’s fixed now.
Joe Patrice: Okay, cool.
Elie Mystal: This is the problem for like a lot of people.
Joe Patrice: Seems as though, I mean I’m happy that things that small are huge problems for you. I mean, that’s a sign that you’re in a good place.
Elie Mystal: You asked why I was —
Joe Patrice: You should look at more of a glass-half-full kind of world.
Elie Mystal: You asked why I was in a good mood. I’m in a good mood because I played a working video game last night as opposed to a broken one.
Joe Patrice: Very nice. Well anyway, let’s move on to something that’s a little bit more depressing, which is the state of criminal justice in this country. How about that? Oh yeah, so we’re continuing as we said with our special shows about the ideas behind FOX’s ‘Proven Innocent’.
Today, we have a couple of guests who come at the problem from different directions and we’re going to explore some of the differences in perspectives that go into how we make this system operate.
First of all, we will introduce Jerry Buting, you may remember him from the show ‘Making A Murderer’. He represented Steven Avery during his trial. He’s the author of the book ‘Illusion of Justice: Inside Making a Murderer and America’s Broken System’. Welcome to the show.
Jerry Buting: Thank you. Good to be here.
Joe Patrice: We also have with us Jackie Maloney, who comes at it from the other side of the table. A former prosecutor from Jefferson Parish in Louisiana but now is on the private practice side, so able to kind of see these issues from both sides of the table. So welcome to the show, Jackie.
Jackie Maloney: Thank you. Good morning.
Elie Mystal: Jerry, I wanted to start with you because I like most of America consumed ‘Making A Murderer’ and I am not the only one. This podcast Thinking Like a Lawyer does well, it would do better if it was about true crime. I think the number one podcast in America right now is ‘Over My Dead Body’ where our colleague David Ladd is actually featured heavily. It’s about the murder of a law professor Dan Markel.
Jerry, do you have a sense for why true crime whether they be true crime dramas or podcasts or what have you, do you have a sense of why those gripped the nation?
Jerry Buting: Well, it’s a good question and I’m sure that there are sociologists that are studying this phenomena right now. I mean it’s not like it’s a new genre. I mean we’ve had true crime for quite some time first in books and then on the TV and movies, but I think right now, one of the things — I mean maybe it’s because it’s still the adage, the truth is stranger than fiction.
I mean, if you look at some of the issues and the facts that are developed in these true-crime docu-series, if they were a fiction, a work of fiction people wouldn’t believe it. The fact that they are true that they’re — that we see actual corruption in the criminal justice system and unfairness and unanswered questions and those kinds of things, I think are probably very intriguing for people.
And so that would be my suspicion as to why people are that interested in it. I do think that there’s a risk of exploitation of other people’s harms, these are real people, real victims, real defendants and their families, some of them wrongly convicted, but I think there’s also the benefit of providing some transparency to the ordinary citizen about what really happens in our criminal justice system.
Elie Mystal: That was going to be my next question but I want to push you a little bit on that, on this issue of do you think this genre actually kind of helps us understand the criminal justice system or maybe hurts us because of the salacious nature of the kinds of stories and issues that actually make it all the way to a serial or ‘Making A Murderer’ or what have you.
In ‘Proven Innocent’ they have a true-crime kind of subplot. The protagonist is searching for the real killers and it kind of works as a TV show, you’re kind of like eating popcorn you’re like, oh, I hope she finds them, right? But when we talk about it, when it’s a not a fictionalized, when it is real, do you think that showing people, the criminal justice system, from that kind of starting point of a salacious kind of murder mystery or what have you.
Do you think that’s actually helping people understand how criminal justice is supposed to work or is it kind of is the dramatization of it actually a harm?
Jerry Buting: Well, I think there you can distinguish between products that really are designed to exploit that with a purely salacious type of a feeling to them and depictions of reenactments with a lot of blood and things like that that are — I think you can distinguish those from the more serious ones where even in those instances though like serial like ‘Making A Murder’ or Netflix’s ‘The Staircase’, you’re dealing with real people and there’s always a risk that that’s reopening wounds and making it difficult for everyone who is involved.
But, I do think that it’s really the best way so far for people to understand what really happens and what shouldn’t happen in our criminal justice system. I mean, people don’t have time to take off work and go down and watch a real trial.
When I first started practicing law, there actually were some retired people like that who would — we’d call them the court watchers. They’d show up for trials, it’d be completely unconnected to the new parties and they would sit and watch and the judges and all the participants knew that there were citizens watching what they did.
I think these documentaries at least give people some idea of what’s going on and for too long, we’ve had completely fictionalized unrealistic portrayals like frankly CSI or some of the others where science supposedly has the answer and they can get the results and half-hour and prove innocence or guilt beyond a reasonable — beyond any doubt, and that’s just not the way it really works in human affairs or in our criminal justice system. So I think ‘Proven Innocent’ actually does raise some of those more realistic scenarios that at least I see often in post-conviction cases.
Joe Patrice: So, Jackie, I want to bring you in to talk about one thing that in one of our prior episodes I made a comment about how the show is set up where Gore Bellows, the Kelsey Grammer character is — I offhandedly said the bad guy and I was corrected and to say that’s not really true that he occupies more the antagonist but his internal motivations and all are not necessarily all bad.
He occupies a space and he has a real commitment to justice which he interprets in a way that’s slightly different than some of the other characters. And so with that idea about antagonist, it strikes me when we talk about the criminal justice system that on the prosecutorial side, you face kind of a weird balance because on the one hand, there are pressures to put people in jail because that’s protecting society in a way.
But there’s also this serving the community role that you have to balance with which is am I using this power that I kind of have responsibly and like how do you — how do you constantly keep in mind whether or not one impulse is pushing you one direction or the other.
Jackie Maloney: That’s a lot of questions. My first answer is that the character that’s portrayed in the show is utterly corrupt. I think that he is a terrible presentation of what a prosecutor is or should be. I was offended by him, and the second that he agreed to take a lesser charge on a homicide case in exchange for hiding evidence that he was held in a prior trial told me everything I needed to know about what kind of character he was.
So that would never be to me a realistic portrayal of what a prosecutor should be or what kind of prosecutors I worked with or what kind of prosecutor I was trained to be. That’s the first thing and there was never a balancing act. It’s a bright-line rule. You have Open File Discovery, you turn over all evidence that’s favorable to the defense, you turn over all evidence.
The only thing that you don’t turn over in connection — and I have tried — I worked in New Orleans in Jefferson Parish. I handled — tried almost 150 jury trials, handled probably close to 10,000 cases during the course of my career which was 14 years as a prosecutor, I’ve been in private practice now for about seven years. But there’s no balancing act. You do the right thing at all times and I always did and everybody else that I worked with always did.
So the presentation of that character on the show was 00:11:48. I mean I thought it was — I thought it was designed obviously to get a reaction from your audience, but not necessarily a realistic portrayal of who we were when we were doing that job. There is no balancing test. There is right and there is wrong. And you always do the right thing, and you don’t behave like that.
Elie Mystal: Jackie, if I might press you, what kind of world would you want to live in to best hold prosecutors accountable who don’t do, who don’t have the kind of ethical and moral stringentness that you are expressing? Just because your practice in Louisiana, the Connick v. Thompson case kind of sprung to mind, like how do we go about just for our listeners who don’t know Connick v. Thompson is basically the prosecutor withheld or was accused of withholding exculpatory evidence that could have potentially or almost surely helped a defendant. How should our system kind of hold prosecutors accountable when they do make mistakes or when they are actively doing the wrong thing?
Jackie Maloney: Well, a prosecutor who is found to have actively done the wrong thing should be held accountable. I think each case should be judged on a case-by-case basis. If someone has done something intentionally, that’s one thing. If someone has done something negligently, that’s another thing, and that’s for the Bar Association and the courts to take a look at.
Because of the cases that came before me there was one individual that was primarily responsible for some of the issues that percolated through the Orleans Parish District Attorney’s office and because of that there were policies put in place by Mr. Connick and we utilized those policies, the remaining 699 people that worked for him who went on to become federal judges and federal prosecutors and politicians and private attorneys and moms and dads and people who didn’t stay in practice.
The remainder of us, we utilized Open File Discovery. I know that in every homicide case I tried or capital case I handled, I always put together what’s called an Open File Inventory and identified each piece of discovery that was turned over to the defense and attached a copy of everything that was turned over, went through and identified it very carefully and very specifically and that way there was no question about what was turned over if it’s not on the list, they didn’t get it. If it’s on the list, it’s in the record and they got it. I was never going to be caught in that sort of a situation and I think that most of the people that I worked with and I trained were trained properly and I can’t imagine any of them ever being negligent or intentional in behaving that way that a prior person had behaved in that case that you’re describing.
But to answer your question somebody who is negligent or intentional and withholding information should be dealt with accordingly and very severely, because that’s totally unacceptable.
Elie Mystal: Jerry, in your case, in that case there was the subject matter of ‘Making A Murderer’, one of the — I think it’s fair to call antagonists in that show was Ken Kratz, the prosecutor who prosecuted Steve Avery and Brendan Dassey. Now he’s resigned from that post, I believe, but how would you have liked to see him kind of held accountable for some of the things that we saw him do during the show?
Jerry Buting: Well, the most egregious thing he did I think was the press conference in which he poisoned essentially the entire jury pool throughout the State of Wisconsin by describing this salacious graphic murder rape mutilation of body when in fact there was no evidence to support and in fact the physical evidence disproved it, and the state had to have known that at the time of the press conference. We didn’t discover until about a month later when we finally got the discovery and saw that they already had the crime-lab going through the entire place and there was no evidence to support that kind of a murder scene or rape or anything; but, he was never held accountable.
I had a number of prosecutors contact me even when it was going on, right afterwards and saying, I can’t believe he just did that. You can debate whether or not he crossed the line, but no one ever filed a complaint against him. The enforcement of holding people accountable through lawyer regulations or even judges through judicial misconduct commissions and things like that are toothless, nothing ever happens.
Somebody did a study of cases in California, 200 or something that were reversed by the Court of Appeals with strong — this is over a significant period of time with strongly worded opinions about prosecutorial misconduct and in that one instance did any judge, any of the Court of Appeals judges even refer those people to the Bar for an investigation about whether they should be disciplined.
The attorney discipline process does not work when it comes to the few and it is few prosecutors who stretch the rules or cross the line. There needs to be I think something more effective. California now has just passed a law to make it a felony if a prosecutor is found to have deliberately withheld exculpatory evidence, which is a little bit more teeth than the Brady Rule, but who’s going to prosecute those prosecutors? I mean, that’s a serious problem.
I think what we really need to do is open up civil liability, making prosecutors civilly liable if they are the few bad apples and they do deliberately withhold evidence, but let me just also broaden the focus a little bit. This isn’t always bad actors who do these kinds of things.
I talk about a case in my book Ralph Armstrong where a prosecutor who had a good reputation as being a reasonable, fair prosecutor but in this particular case he was so close to it and so convinced in his own mind that the defendant that he prosecuted was the guilty perpetrator that he was later found by the judge to have destroyed evidence in bad faith and in violation of the court’s order not to do so.
He also suppressed a confession by a third party for 15 years that I only discovered in part because of a tip I got when the Avery trial was going on. Now, is he a bad person? No, I think that prosecutors are human beings and it’s got to be difficult for them when they have particularly in a homicide where they have bonded with parents of the victim and for decade later or however many years later to come and say I’m sorry Mr. and Mrs. Smith, but not only did we convict the wrong person but the real killer of your daughter went free. That’s got to be hard on a human level and I think that there are these sort of unconscious resistance of prosecutors to accept the possibility that they did make a mistake and some of them are compelled like prosecutor in my case to bend the rules or break the law in order to try and maintain that conviction rather than have it reopened.
So, it’s not just corrupt prosecutors that we’re talking about, it’s a human failing that some people have, and I think it’s an understandable failing. It maybe takes better training or better oversight, but ultimately, I think if there’s the prospect of serious civil financial penalties against these prosecutors, it will kill them from doing that.
Joe Patrice: I mean, in some cases it’s not even necessarily a bad act or like we get conflicting eyewitness accounts because eyewitness testimony has issues, and at a certain point the decision-maker has to say, like those are the ones that seemed more believable than these when I’m going forward and building a case. And to some extent that’s a decision and even in the best of faith that decision might end up creating a wrongful conviction, you believe the wrong ones and that could be because you’re too close to it or — or just because you made a judgment call that happened to be incorrect.
One of the things that I was going to ask you, Jackie, about was there’s a phenomenon in some —
Jackie Maloney: Can I address what you just said?
Joe Patrice: Yeah, go for it, yeah.
Jackie Maloney: You’re looking at it the wrong way. A trial attorney prosecutor, first of all, a case originates in the screening division and intake division where all the witnesses are evaluated and then the case gets set up to the trial division, at least that’s my experience in Louisiana.
And so, all of the witnesses would give a statement generally and all that would be documented in the police report, they may have separate statements that are transcribed and have tapes or CDs. All of that gets turned over to the defense, there’s no decision to be made, there’s no cherry-picking of witnesses, it all gets turned over, that’s what Open File Discovery is. Then the defense has access to all of that information that is the way it’s supposed to work. So, the way that it’s portrayed on TV is not the reality of what happens.
Here, we have Open File Discovery and we turn things over and the defense has access to review all of the potential inconsistencies or statements made by witnesses that they perceive to be inconsistent then they can utilize it on cross-examination, so.
Joe Patrice: Yeah.
Jerry Buting: Can I?
Joe Patrice: Yeah, go for it.
Jerry Buting: Jackie, you mentioned Open File Discovery a couple of times and I — there are parts of the country that don’t have Open File Discovery and it’s —
Jackie Maloney: Well, they should.
Jerry Buting: They should, but there’s also different ways to define that. In Wisconsin, we supposedly have Open File Discovery but it varies from county to county. There’s one county here where you don’t get the DA’s file, you get a essentially a dummy file that you go through to look at the discovery and there’s nothing to prevent them from not putting something in the file that should be in the file, and that’s not always just coming from the prosecutor’s office, it can be coming from the police.
I mean one of the things that’s they’re still going to be hearing on in the Avery case but one of the things that’s been documented now is that there was a forensic evaluation of a computer that may have provided evidence of a third-party suspect, other than Steven Avery, who could have committed that crime and the report was deliberately not filed by the detective in evidence. He kept it in his personal possession. I don’t know if it was in a shoebox or what but it was never even filed. So the prosecutor didn’t — as far as I know a prosecutor didn’t see it, maybe they did but it clearly wasn’t in the evidence for the defense as they go through the list of items like you mentioned to even know that it was there.
So there needs to be a better — I think one of the problems is the whole discovery process that relies on prosecutors to decide what’s important and what’s not.
Jackie Maloney: Well, that’s — what I’m saying is that there — you take the decision completely out of a prosecutor’s hands and everything gets turned over in my opinion, the only thing in the — and the Appellate Courts here have held it up, the only thing that doesn’t get turned over to the defense immediately is the address, phone number, and personal information of the witnesses for safety reasons.
There was a homicide case tried here that the Appellate Courts, the state and the defense litigated, the timing of when that information should get turned over to the defense, they could go out and interview all these witnesses when there was genuine safety concerns and they held that several days prior to trial was sufficient.
The defense obviously argued that wasn’t good enough, they needed more time, but that was the only issue about when to turn over the physical locations of the witnesses so that they could be taken into protective custody or protected just in case anyone would try to harm them.
That’s the only information I would argue that shouldn’t be turned over at the inception of discovery. Everything else should be turned over, there’s no decision to be made. It all goes. All of it and if there’s information that a detective has that’s not turned over, that’s a huge problem because here in Louisiana, the DA’s office is imputed with the knowledge of what the police know.
So the DA would get in trouble if the police didn’t turn over information to them, everyone would get in trouble.
Elie Mystal: Can I jump in here? I have a question for both of you. How do you guys feel about the ability of juries to actually sift through all of this information and evidence and make intelligent kind of decisions? It comes up a lot in the show that we’re talking about where kind of evidentiary issues and junk science issues are one of the reasons that we find out that a lot of people are wrongly convicted.
Certainly in real life we know that to be true. A lot of people are wrongly convicted on the strength of evidence that is either junk science or the jury overvalued as Joe was talking about kind of an eyewitness testimony more than they should have. So how confident are you from both of your respective sides in the ability of juries to actually know the difference between kind of solid evidence and junk evidence.
Jerry Buting: I’m not at all confident. In fact I’d go even broader than that. I don’t think most judges frankly are able to understand the difference. One of the problems we’ve got with, I mean, junk science is a serious problem. Time and again now DNA cases have proven that something like microscopic hair comparison or bite mark evidence that was used to convict somebody then DNA later proves they are innocent.
And one of the problems we’ve got is that the gatekeeping function that was set up by the US Supreme Court in the Daubert case where judges are supposed to have hearings before trial and make a determination whether certain evidence, scientific evidence or expert testimony can or cannot be admitted. The problem is, we’re having people who are largely illiterate in science that includes most lawyers and most judges and most jurors making these decisions to allow this kind of evidence in and then people often rely unfairly on the strength of that evidence that might often be enough to convince them beyond reasonable doubt and cause them to ignore other issues like somebody’s alibi perhaps.
So I’m not confident that judges are trained properly to be able to screen out this kind of evidence that lawyers are properly trained, that’s one of the things I’d have a particular niche and interest in my whole career on, and I’m working now to try and help change that and help people understand. I think shows like I don’t know just beat up on CSI, but it has caused a real disservice and that jurors I think come into court having watched that show for years and think that science can always prove guilt or innocence when it cannot.
There either often isn’t science to support — evidence to support it at all or the science is nowhere near as strong like this example in the most recent episode of ‘Proven Innocent’ where the — I think it’s called the Float Test, where they can try to determine whether or not a baby was born alive or not.
A lot of these opinions that are presented really went unchallenged at trial, should have been challenged or shouldn’t have been admitted at all.
Elie Mystal: No, the CSI effect is really there have been studies on it. Jackie, do you trust that if you present the evidence both sides fairly in front of a jury, that kind of a jury can come to a reasonable decision about what evidence has utility and what doesn’t?
Jackie Maloney: Well, I think the one thing that I wholeheartedly agree with Jerry on is that the CSI effect is a nightmare. When I was voir diring juries here in Louisiana, I mean we had to start doing a CSI portion during voir dire to let juries know that that’s not real. I’d have to ask how many people watched it and did they understand that we didn’t have the ability to solve a case in an hour, I mean, it was ridiculous. I mean, CSI had a more damaging effect for cases than I could have ever possibly have anticipated. So I’m sure it helped and hurt both sides. I’m not sure what the net negative effect was on or positive was on either side but it was just a nightmare.
As far as the reliability of jury verdicts, I mean I think you have to take each case on a case-by-case basis. I don’t know what specific junk science you are referring to. I mean I listened to the episode that Jerry is referring to about the Float Test. I’ve never had a case involving a Float Test before I’ve had other cases involving other types of unusual sciences.
But in those cases, the defense brought in experts and prior to trial, we had pretrial admissibility hearings using the Daubert factors and in some of those instances, the judge found that the science was not reliable and disallowed the evidence and in some instances, they allowed it and then the defense brought their experts in and the jury listened to both experts and made decisions.
And I think those decisions were rationally based. And sometimes they weren’t always favorable to the prosecution. So, I mean, it wasn’t like we were always winning with the science that we presented and I have a lot of confidence in the jury verdicts that we got, and they weren’t always convictions.
I think juries, for the most part, always try to do the right thing. They do, based on what’s presented and I was always satisfied, not always happy with what happened but always satisfied that a jury went back there and did what they thought and good conscience was the right thing.
Joe Patrice: Well, thank you so much for joining us today.
Elie Mystal: I really want to 00:29:35 this for like another hour.
Joe Patrice: I know, I know, I know. But unfortunately we have actually gone our time and they have busy jobs that they have to get back to. So, thanks for joining us. As always, we’d like to thank FOX who sponsored this episode. ‘Proven Innocent’ is on Fridays 9/8 central on FOX. So be sure to watch that.
I’ll also throw a shout out to Smith.ai, who sponsors our regular non-special podcasts so if you stick around we’ll have another episode of that coming soon too.
Elie Mystal: They are all special.
Joe Patrice: Yeah, well, they are very — it’s like a very special blossom, yeah, like they are all special, but this was very special.
So, yes, thank you to Jerry Buting and Jackie Maloney for joining us today. Thank you for listening everybody. You should subscribe to the podcast, give it reviews, all of that sort of thing, should read Above the Law.
Follow us on Twitter. He’s @ElieNYC, I am @JosephPatrice. Listen to the other shows in the Legal Talk Network’s table of programs, and with all of that, I think we are done and we will talk to you soon with another episode.
Elie Mystal: Peace.
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