January 5, 2016 | Criminal Law

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Making A Murderer : Netflix Documentary Reveals a Story of Exoneration, Conviction, and Our Flawed Justice System.

The Netflix documentary Making a Murderer exposed many of the flaws in our criminal justice system.  A significant number of those failures contribute to wrongful convictions.  The Innocence Project has identified six common causes of wrong convictions:

  1. Eyewitness Misidentification
  2. False Confessions / Admissions
  3. Government Misconduct
  4. Unreliable / Improper Forensic Science
  5. Informants / “Jailhouse Snitches”
  6. Inadequate Defense Counsel / Ineffective Assistance of Counsel (IAC)

The purpose of this blog post is to address the common causes of wrongful convictions that are allegedly present in the Netflix documentary Making a Murderer.  Thanks to the honorable and persistent effort of the Innocence Project (and many other groups) to exonerate those who have been wrongfully convicted, there are statistics on these common causes.

For example, “those proven to have been wrongfully convicted through post-conviction DNA testing spend, on average, more than 14 years behind bars.”  Notably, “[t]he real perpetrator was identified in 49% of exoneration cases [and] at least 130 violent crimes could have been prevented if the true perpetrator was initially apprehended instead of an innocent person.”  See Innocence Project Facts

Due to the public’s recent fascination with True Crime genre (Serial Podcast and HBO’s The Jinx), these issues are finally receiving national attention and much deserved conversation.  Regardless of whether you agree or disagree with the jury verdicts in the trials of Steven Avery and Brendan Dassey, this compelling 10 hour documentary is yet another illustration of the devastating effects of a broken system in dire need of reform.

Disclaimer: I am writing this blog post with the assumption that you, the reader, have either watched Making a Murderer or have read other articles about the documentary.  In other words, this article contains spoilers.  I am also not blind to the fact that a 10 hour documentary omits some of the evidence presented during two murder trials.

Common Causes of Wrongful Convictions in Making a Murderer

The common causes of wrongful convictions that are highlighted in Making a Murderer are (1) false confession, (2) government misconduct, (3) improper forensic science, and (4) ineffective assistance of counsel.

False Confessions (Juvenile with Learning Disability and Low IQ)

 

Based on the data collected by the Innocence Project, more than 1 out of 4 people exonerated by DNA evidence made a false confession or incriminating statement to police.  False confessions are significantly more common with juveniles.  Specifically, “65% of the juveniles exonerated by DNA evidence falsely confessed to crimes that they did not commit.”

Another study reviewed the exoneration of 340 convicted persons and found that false confessions occurred in 42% of juvenile cases, while only occurring in 13% of adult cases.  The big question: Why would an innocent person confess?

In Making a Murderer, Steven Avery’s nephew and co-defendant, Brendan Dassey, made multiple confessions and recantations after Avery’s arrest for the murder of Teresa Halbach.  Dassey was sixteen years old when he made the statements to police and has a reported IQ of 70.  It is not surprising that the circumstances in Dassey’s case contain a majority of the factors found in false confessions.

Below is a list of factors that contribute to a false confession

  • Duress and Coercion
  • Intoxication from alcohol or drugs
  • Diminished capacity / Mental Impairment
  • Ignorance of the law and the belief that it will be more beneficial to comply with police
  • Intimidation and the actual infliction of harm

Resources

Government Misconduct (Police, Prosecutors, and Judges)

The Innocence Project has exposed government misconduct at every stage due to DNA exonerations.  Note: Most police officers/prosecutors/judges are honest and serve the public with dignity.  Unfortunately, like in any profession, there are those who do not follow the law, have selfish agendas, and believe that the end justifies the means.

The common forms of misconduct by police

  • Improperly suggesting a specific individual during an identification procedure
  • Coercing false confessions from suspects
  • Lying and/or intentionally misleading jurors
  • Intentionally hiding exculpatory evidence
  • Providing incentives to informants to obtain unreliable testimony

The two prominent themes in Making a Murderer are that the Manitowoc County Sheriff’s Department (James Lenk and Andrew Colborn) planted evidence to frame Avery and that law enforcement officers (Mark Wiegert of the Calumet County Sheriff’s Department and Tom Fassbender of the Wisconsin Division of Criminal Investigation) coerced Brendan Dassey into making a false confession.  The documentary also raised the issues of prosecutorial misconduct and questionable rulings by the judges.

The circumstances behind virtually every piece of physical evidence linking Avery to the murder was obtained in a suspicious or incomprehensible nature: (1) Halbach’s Toyota RAV4 in the salvage yard; (2) Halbach’s car key in Avery’s bedroom; (3) Avery’s blood in Halbach’s car; and (4) the bullet in Avery’s garage.  The hardest pill to swallow is the involvement of the Manitowoc County Sheriff’s Department in the investigation, and the Department’s uncanny ability to find evidence in places that had previously been searched multiple times.

As for possible prosecutorial misconduct: The prosecutors in Avery’s case held routine press conferences prior to trial, outlining every piece of possible evidence collected by the police.  Specifically, the lead prosecutor, Ken Kratz, provided a detailed account of Dassey’s “confession” to the media.  In addition to diluting the presumption of innocence (tainting potential jurors), Dassey’s statement was almost entirely inconsistent with the physical evidence.

At Avery’s trial, the State chose not to call Dassey as a witness or to introduce his “confession” as evidence.  The prosecutor confidently stated in his closing argument to jury that the evidence pointed unequivocally to one person, Steven Avery.  The State then proceeded to trial against Dassey, arguing an entirely different theory of how the murder occurred.  This “win at all cost” practice is unethical and it undermines the integrity of State’s role to prosecute crimes.

Prosecutors are ministers of justice, not advocates.  This is a crucial distinction.  Prosecutors should also not feed the media beast, as it does not serve in the interest of justice.  The Center for Prosecutor Integrity “estimate[s] 43% of wrongful convictions arise from misconduct involving prosecutors and other officials.”

Again, I am not admonishing all prosecutors.  The vast majority of prosecutors are honest and seek what they believe is a just result.  I am simply pointing out the existence of a serious problem that prevents those accused from receiving a fair trial.

South Carolina Supreme Court Justice Donald Beatty addressed the issue of prosecutorial misconduct in South Carolina several years ago at the annual Solicitor’s conference.  In response, 13 out of the 16 Circuit Solicitors signed a petition to recuse Justice Beatty from ruling on criminal cases and grievances against prosecutors.  This reaction is similar to the prosecutor’s statement in Making a Murderer about challenging the integrity of the government at your “own peril.”

Below is a list of the common forms of misconduct by prosecutors

  • Withholding exculpatory evidence from the defense (discovery violations)
  • Intentionally destroying or altering evidence
  • Allowing witnesses to provide false or misleading testimony
  • Pressuring defense witnesses not to testify
  • Presenting fraudulent and flawed forensic expert witnesses
  • Intentionally making misleading and/or inflammatory arguments to the jury

As for questionable rulings: It appears that the judge in Avery’s case allowed the State to present “last minute” expert testimony regarding blood evidence on a weak/unreliable area of forensic science, but did not allow the Defense an opportunity to obtain their own expert to conduct additional testing or to rebut the expert’s testimony.

The judge in Dassey’s case properly relieved defense attorney, Len Kachinsky, as counsel because Kachinsky allowed the police to interrogate his client (a juvenile with a low IQ) without him being present.  Despite his prior ruling, the judge refused to suppress that statement at Dassey’s trial.  These rulings are clearly inconsistent and difficult to reconcile.

Improper Forensic Science (Expert Testimony and Testing of DNA, Blood, and Physical Evidence)

Also known as “junk science”, there are many forensic techniques that have not been subjected to sufficient scientific evaluation and have resulted in wrongful convictions.  These include hair microscopy, bite mark comparisons, firearm took mark analysis, fingerprinting, and other forensic techniques.

The most significant flaw with expert testimony supported by “junk science” is that these testing methods have minimal to no scientific validation and have inadequate assessments of their reliability.  Many of these testing methods also lack acceptable standards for quality assurance, peer review, and control.  In other words, these tests do not meet the accepted standards set forth in the scientific method.

In Making a Murderer, the State presented three expert witnesses whose testimony dealt with forensic science.  The first expert witness, Leslie Eisenberg, a forensic anthropologist, testified about the bones found in a burn pile behind Avery’s trailer.  Eisenberg testified that, in her expert opinion, the bones could not have been moved to that burn pile.  She appeared certain and her opinion did not waver during cross-examination.

Evidence contradicting the expert’s opinion

  • There were three burn piles.
  • The burn pile farthest away from the property contained a partial hip bone.
  • The full evidentiary value of the bones was possibly compromised by the police shoveling and using sifting screens to collect the bones.

The second expert witness, Sherry Culhane, a DNA Technical Unit Leader for the Wisconsin State Crime Lab, testified that the bullet found in Avery’s garage contained Halbach’s DNA.  She also testified that Halbach’s DNA could not have been transferred to the bullet through contamination, despite that she inadvertently introduced her own DNA during testing.

Ironically, the State opposed Defense Counsel’s motion to observe the DNA tests on the basis that it could cause contamination.

Culhane admitted that this was the first time she had not discarded her findings due to contamination (protocol instructs her to find the results inconclusive).  Instead, she filed for a deviation of protocol to include Halbach’s DNA profile.  Culhane also admitted that she spoke to Detective Fassbender prior to the test results and was told that the police wanted to “try to put her [Halbach] in his [Avery’s] house or garage.”

The third expert, Dr. Marc LeBeau of the FBI, testified that Avery’s blood found in Halbach’s car did not contain the chemical EDTA.  This expert opinion is probably the most significant because it directly contradicted the defense’s theory that the police planted the blood (using the vial of previously collected blood in the Clerk’s office).  The question is whether this testing method and expert testimony is nothing more than junk science.  It appears that testing method for EDTA was rare and unreliable.  It also appears that the FBI not only rushed the test results, it did not test all of the blood samples.

Inadequate Defense – Ineffective Assistance of Counsel (IAC)

On the issue of inadequate defense:  “A review of convictions overturned by DNA testing reveals a trail of sleeping, drunk, incompetent and overburdened defense attorneys, at the trial level and on appeal.”

In my opinion, the performance of Dassey’s initial defense counsel, Kachinsky, is the epitome of ineffective assistance of counsel (IAC).  When compared to the legal standard for deficit performance, it is difficult to argue that Kachinsky’s performance did not fall below an objective standard of reasonableness under prevailing professional norms.

Outline of Kachinsky’s conduct as defense counsel:

  • He made a statement to the media prior to meeting his client.
  • In that statement, he claimed that his client was morally and legally responsible for the crime and implicated Avery’s the mastermind of the murder.
  • He allowed the police to interrogate his client (who is a juvenile and has a low IQ) without him being present.
  • He directed his investigator to influence his client into making another incriminating statement with the intent to strengthen the State’s case against Avery.

Steven Drizin, a nationally recognized Law Professor from Northwestern University School of Law and Staff Attorney at the Center for Wrongful Convictions, assisted in Dassey’s post-conviction relief (PCR) case.  One of the memorable moments in Making a Murderer is when Drizin impeached Kachinsky after he denied making the above statement while under oath.  To no avail, the judge found that Dassey was not prejudiced by Kachinsky’s actions.

On the topic of zealous advocacy, I have the utmost respect for Dean Strang and Jerry Buting for their representation of Steven Avery.  Unless you have been in their shoes, it is impossible to comprehend the stress of being the only impediment between the awesome power of the State and a publicly despised/possibly innocent defendant.

Flawed Criminal Justice System

If you desire further proof of our criminal justice system’s shortcomings, there were 6 death penalty exonerations in 2015.  There have been a shocking 156 death row exonerations since 1973 (Note: These statistics do not include cases that were reversed on appeal or where post-conviction relief was granted and subsequently resulted in life in prison or an Alford plea to a reduced charge).

When the ultimate penalty is at stake, there must be confidence in the system that is seeking to “justifiably” kill one of its citizens.  The exoneration of death row inmates prove that our system is good at one thing, obtaining a conviction.  The Supreme Court of the United States recently stated:

“[The State’s argument] ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”

Lafler v. Cooper, 566 U.S. __, 132 S. Ct. 1376 (2012)

 
 
“[T]he simple reality that 97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas. Plea bargains have become so central to today’s criminal justice system that defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel that the Sixth Amendment requires at critical stages of the criminal process.
Missouri v. Frye, 566 U.S. __, 132 S. Ct. 1399 (2012)

If you binge-watched Making a Murderer on Netflix, you will become obsessed with these recommendations.

Documentaries like Making a Murderer

TV Shows / Movies

Books

Resources

DISCLAIMER: The author is not affiliated with the above organizations and this article reflects only the views of the author.

Jeffcoat Criminal Defense Lawyers
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DISCLAIMER: This article is only for informational purposes and does not constitute legal advice.  This article does not create an attorney-client relationship.  Any result achieved on behalf of a client in other matters should not create any expectation of a favorable result and does not necessarily indicate that similar results can be obtained for other clients.   If you have a legal problem, you should consult directly with a licensed attorney because every case is different and must be evaluated on its specific factual and legal issues.

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