“Making a Murderer”. Photo: Courtesy of Netflix.
It has been tough getting into the swing of things after the holidays. It’s not because there is nothing to talk about; quite the contrary. With Affluenza Teens and Bill Cosby and stand-offs on Federal Land it’s an embarrassment of riches when it comes to legal subject matter right now.
Then I binged Making a Murderer last weekend on Netflix.
WOW. Everyone with even a slight interest in how criminal cases really work in real life needs to see this. It’s like the O.J. case on steroids. You just know I had to write about it.
For now, I am going to try to avoid getting into the central issue of the case, which of course is supposed to be the central issue in EVERY criminal case (but, unfortunately, frequently isn’t): Guilt or Innocence.
The main thing I want to emphasize about this case is that even after you set aside the central issues – like whether Avery and his young nephew, Brendan Dassey, are guilty of murder and the possibility that police planted evidence – the main themes criminal defense attorneys like me encounter every day are all represented here. A heinous crime and innocent victim, horrible facts, unfair and biased investigations, cops who skew the facts to get a conviction, unfair rulings in court, a community up in arms and looking for an eye for an eye, rightly or wrongly, inconsistent evidence, false confessions, recanting witnesses, vengeful victim family members. It is all here.
Spoiler Alert: If you have not yet watched “Making of a Murderer”, do so before you read this.
I may give some critical plot points away. Also, I am writing this with the idea that you have seen the show and will know what I am talking about. It might not make much sense otherwise, even if the lessons to be learned by this case are universal. That’s because the lessons are only universal to those of us who do this every day. The fact that they are not universal to the general public (read: potential jury pool) is why they cause so much confusion and controversy. In reality they are a fact of daily life in the so-called criminal “justice” system.
It is hard to know where to start. The Lawyers are tempting. They run the gamut from the best of the best to the worst of the worst. It makes me want to vent my spleen when I see what some of them did here, especially Dassey’s idiot excuse for a lawyer. But what deserves a mention first is the way that everyone rushed to judgment.
When OJ’s lawyers made “The Rush to Judgment” a central theme in their trial, many of us criminal defense lawyer types groaned. We use this argument frequently. That’s not because it is convenient or always helps us win; it’s because the rush to judgment is precisely what often happens in criminal cases. And it is what happened here. Big time.
This fact is revealed in many ways. But nothing is more telling than the first phone calls made by the police. Almost immediately after evidence came in possibly linking the murder to Steven Avery, the one who had recently been released after serving almost two decades for a crime he definitely did not commit, the police had made up their minds. He did it.
Without questioning witnesses, without interviewing any of the many people who lived in the compound with Steven Avery, without first carefully analyzing any of the forensics, the call coming in over the radio said it all: “Is Steven Avery in custody yet?” Again, wow. Charged, tried and convicted with virtually no investigation. The very definition of “rush to judgment.”
You see, frequently it is not that there is some giant conspiracy going on. Granted, here, it appears that there may have been at least a small conspiracy. The victim’s car key magically found (after several fruitless searches) in the bedroom during a search conducted by officers who were supposed to be nowhere near the investigation due to a potential conflict of interest, is a good example. At least one or two of the cops were probably involved in planting that evidence. It sure looks that way. That theory is well supported by the fact that they had a personal motive to plant it.
Avery was suing them all, more or less, and on the verge of succeeding with that lawsuit. The potential cost to both the county and to the individual cops involved in helping secure his earlier false conviction would have been devastating. It seems insurance would not have covered it. They stood to either lose their jobs or their houses or everything. At least that is how they probably felt. With a new charge on Avery for something as devastating as Murder that little lawsuit problem would disappear and all of their worries with it. Can you really trust an investigator to be objective and neutral and fair when their whole lives are on the line? Uh, no.
And they weren’t. You can tell not only from the way the cops investigated the new case, the horrible murder of Teresa Halbach. Planting evidence, ignoring exculpatory evidence, jumping on “confessions” that anyone with an objective viewpoint would see as faulty. You can also tell by the way the prosecutors drank their Kool Aid. Of course, the main nightmare prosecutor, Kratz, is apparently complete scum. (More on that later.) But he did not have to be complete scum. I’ve seen otherwise decent prosecutors become monsters when they get caught up in protecting bad cases and dirty investigations. They just don’t know any better, and they are programmed to go with the just-convict-the-guy flow.
Therein lies the rub. Because it is not always a personal thing. It has become part of the group mindset that permeates every aspect of law enforcement. Bad people do bad things and if we think you are bad and think you did a bad thing then you must have. Period. Evidence be damned.
The best example of this comes when Kratz calls a young woman (who is related to Avery and Dassey) to the stand to repeat what turns out to be a bogus statement implicating her relatives. She breaks down crying as she testifies that Dassey really in fact did not confess to her, that he said nothing and that she made the whole thing up.
Knowing what I know about the planted evidence and coerced confessions and biased investigation that went on in this case I immediately saw a girl cracking up over her guilt for making up stories about the boys. Why? Because I see people lie and cheat every day to try to punish people or get some attention or just because they are manipulated into saying things by the police. It happens. Every day. I recognize a valid recantation when I see one (and I see many… as in many many many bogus recantations.) So I’m not biased one way or the other.
Here, she was obviously telling the truth when she said she lied about her statement, if that makes sense. It’s a bit illogical, I know, but not when you are familiar with the problem. All the cops and prosecutors and poor victim’s family members saw was a girl succumbing to pressure from “the family” to change her story. The idea that she made up a false statement was incomprehensible to them, even as they argued that she was now making up a new statement in front of everyone’s eyes.
Think about it.
Most prosecutors (and judges for that matter, bless them all) just don’t see that. They are so convinced in the justness of their cause that they can’t see the problems. They’re like the parents of an out-of-control teen, oblivious to the kid’s shortcomings, doting on his every word and deed. Prosecutors are like this with cops. They swallow it all hook, line and sinker, which is clearly what the prosecutors did here.
When Kratz was commenting on her recantation he was obviously convinced that she was lying… when she said she was lying. The idea that she lied to the cops and now here in court, under oath, having sworn to tell the truth, every eye in the room upon her, she was actually being truthful, essentially confessing to a crime herself for false reporting, was unfathomable to him. Impossible for his tiny little biased prosecutor mind to comprehend. (Sorry if I sound so unprofessional, but when I found out about his sexting scandal all hope was lost for me to try to be objective with this clown.)
So, there you have it. The Central Theme of What Went Wrong. It was impossible for anyone involved in the law enforcement side of the investigation of this case to be objective, either because they just couldn’t think that way, or because they were actively involved in tampering with evidence.
What remains to be seen is how the specifics about this case support this view. As I like to say, more on that later…
If you would like Craig Platt’s help with a legal issue, you can find his contact information here or fill out a confidential, easy form about your case.