Making a Murderer – an English lawyer watches Netflix

Making a Murderer – an English lawyer watches Netflix

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Right now, murder is hot

– Dateline NBC Producer

 

Introduction

Right now, as the unnamed producer says in Episode 4, “murder is hot“. Or, at least, programmes about murder are hot. Eighteen months ago was the Serial phenomenon, which I came late too. But when I get involved, I was quickly hooked and listened to most of them back to back.

The latest true crime show, which is being compared to Serial for obvious reasons, is Making of a Murderer.

If you’ve not seen it, then what follows does contain some spoilers. The story is not plot driven, and so knowing what happens won’t stop your enjoyment of it – it’s the way the story is told rather than the story itself.

 

What’s it about?

It’s a ten part documentary series, currently being shown on Netflix, that traces the legal travails of Steven Avery a 53 year from Wisconsin.

Mr Avery had a few convictions growing up, but was convicted of attempted rape in 1985 for attacking a woman when he was just out of his teens. 18 years later he was released after DNA evidence showed that he was innocent.

He sued the local county and other officials, claiming $36 million in damages for wrongful imprisonment, claiming that the prosecution was not just a miscarriage of justice, but was brought about deliberately.

As this case was going through the system, Mr Avery was arrested for a new case of murder. The evidence seemed strong – the victim’s car was at his property and searches revealed that her bones were found their also, along with smears of her blood in his car. Additionally her car key, with Mr Avery’s DNA, was found in his house.

Additionally, his nephew Brendan Dassey confessed to being a secondary party to the murder, and implicated Mr Avery with him.

All in all, it looked fairly bleak for the pair of them. And so it proved, in separate trials both were convicted of the murder and sentenced to life in prison.

The ten part documentary takes in the whole story from 1985 to the present day, but focussing on the trial. This unpicked the investigation and left people in much more doubt about his guilt than the brief summary above would suggest (and judging by the internet, rather a lot more than a bit of doubt).

 

Is it worth the hype? 

Yes.

Leaving aside the legal aspects, it’s a gripping and compelling drama that is told in an expert way. Apparently it ended up on Netflix because other TV stations didn’t want it, which looks a huge error on their part – this looks like it could be the latest ‘sleeper’ hit.

You know from the start (most likely) what happens, and yet that doesn’t detract one bit from the enjoyment. It runs in at around 10 hours of viewing, which is a lot of time to invest (or a weekend of binge watching if you’re feeling a bit under the weather), but well worth it.

It packs in the whole back story and two murder trials in this time and, although it focusses on the family of Steven Avery, it doesn’t come across as being partisan. And it makes lawyers into sex symbols – what’s not to like?

But if you wanted film criticism, you’d go somewhere else, right?

 

Differences between England and the US

So, what to make of it from a legal point of view?

For those brought up on Law & Order and other US Courtroom dramas, it was good to see that real life criminal cases are presented much more similarly to English cases that you would imagine.

Of course there’s differences, but you get the feeling that with a ‘Nutshells guide to Wisconsin Criminal Law’ you could rub along ok (not starting on a murder of course) – and vice versa. There is a real familiarity about the process.

It may be that it was the way that it was shot, but you got the feeling that there was more time in the US during the trial process for everyone concerned – no nonsense like “Better Case Management” or “Stop Doing Justice!” in Wisconsin – the constitution there does have its advantages in slowing down the juggernaut of the state.

It is at the end of the trial process that you see the real differences. Mr Avery and Brendan were both convicted of First Degree Murder. Mr Avery got life without parole – a whole life tariff. That is more than he would get here (see here for how tariffs in England are calculated), but he would still have a tariff of 30+ years; not much difference for someone in his 40s when convicted at the end of the day.

Brendan was a different kettle of fish – he got the equivalent of a life sentence with a tariff of 42 years. This is way over what he would have got here. As someone who was 16, he would have had a starting point of 12 years. This may have gone up given the nature of the crime, but be balanced out by his secondary role. I would guess at a figure of around 15 years for him before he could apply for parole.

The appeals process are also different. Here, you get one shot to the Court of Appeal and that’s it. In theory you could go to the Supreme Court, but that is only on a big point of law and there’s only a handful of cases a year.

The US has much more to offer a convicted defendant. Firstly (and apologies – I’m not a US lawyer so can’t guarantee this is right) you get the right to ask the trial Judge to direct a re-trial. I get the feeling that this is rare (but I would love to have that here, just to see the look on certain Judges faces), and then there is an appeal to the Court of Appeal and the Supreme Court.

This being a state case, you can then go again (different test, different issues, but similar enough for these purposes) in the Federal Court.

For me though, the biggest difference is the way that such a documentary would be handled in England. Much of this story was told through the lens of the cameras in Court, the interviews with witnesses, and other trial material.

Obviously cameras are not in Courts in England as yet, but it’s not just that – I cannot imagine a couple of unknown filmmakers being given access to all the same material in England. We are much more closed in our legal system here – the police and prosecution release very, very little. You would not get videos of the police interview, and probably not even the witness statements let alone the full set of case papers.

It was only half way through that I noticed that seemingly all the calls on the police radio were recorded and released – this means that a phenomenal amount of material was made available that would not even exist in England. This would appear to mean that there is much more material available to determine whether justice was done.

Making a Murderer would not ever be made in this country because there is just not the same amount of material, and access to material, as there is in the US. And that’s before we start with the fact that it would have been shut down in an instant by a deluge of libel writs.

 

 

Could it happen here?

That’s the main question that I’ve been asked by non lawyers. This is all predicated on the basis that Mr Avery was stitched up of course. Could it happen? Of course it could. We know from older times (Guildford 4, Birmingham 6 etc) that it did, but does it still happen now?

I can say that in the last 12 years I can think of two times where I can be sure that officers have fabricated evidence (and because of our much weaker freedom of speech laws that the USA, I need to be a bit vague about this).

In one case it seemed to me that the evidence of the police officer was so obviously flawed that I applied to exclude it. The Judge declined, and the jury convicted my client (although this evidence probably wasn’t determinative).

Was she guilty? I don’t know but I don’t think so. Either way, it left me with a sour taste in my mouth. When she was sentenced, she got a ‘touch’ – I’d like to think that the Judge reflected on it.

In the other case, I also made an application to exclude on what I thought were very strong grounds. We didn’t get that far as the case was dropped before the argument was heard.

It may be that I am a bit naive, but an out and out stitch up of someone known to be innocent is exceptionally rare. Maybe because it is so rare it is ironically easier to succeed though, as people don’t really believe that it will happen.

This is not based on any data (which is pretty hard to get in any event) but I would guess it’s as rare here as it is in the USA. Very rare, but not completely out of the question.

 

So what did happen, is he guilty?

I don’t know. As with Adnan Syed, I certainly think it’s safe to say that the conviction does not appear to be a safe one, but that is far from the same test of course.

There is obviously more evidence in Mr Avery’s case than was put into the documentary, some of which gives pause for thought. For example, hand and leg restraints were found at his address, the DNA on the key was from Mr Avery’s sweat, and the bullet that was found was tied by DNA and ballistics to his gun. That is in addition to what appears a very strong case anyway.

And yet … it was very worrying seeing how the investigation panned out, and quite a few things that did not make sense and not just in the loose ends that you get in any criminal trial. The behaviour of the police in general was appalling and it would seem that they had pegged Mr Avery for it from the off, and didn’t investigate any other suspects (a failing that law enforcement in England and Wales often fall prey too).

The confession from Brendan Dassey seems pretty worthless (he was someone who seemed genuine when he had to ask in cross-examination what ‘inconsistent’ meant). For what it’s worth, I suspect it would have been admitted in England, although it would probably be close. And even though police corruption is rare, if they were going to pick a case, it would be this one.

I would say that I’d bet more on the innocence of Adnan Syed than Mr Avery, but both would appear to be miscarriages of justice in the sense that looking at it now, it is hard to see that there is proof beyond a reasonable doubt.

But whatever the truth of it, and it is likely that we will never truly know, one thing is worth bearing in mind. There are thousands of Adnans and Steven Averys in prison protesting that they were wrongly convicted. Not all of them have the resources or access to the media to prove their case. And not all of them will be guilty, which should be a sobering thought to all of us.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

3 COMMENTS

  1. Considering that a conservative estimate of the amount of erroneously convicted death row inmates in the US is in the ballpark of 4% [1], one can draw one’s own conclusions about how many innocents there are behind bars more generally.

    [1] Gross, S. R., O’Brien, B., Hu, C., & Kennedy, E. H. (2014). Rate of false conviction of criminal defendants who are sentenced to death. Proceedings of the National Academy of Sciences, 111(20), 7230-7235.

  2. I recently read Injustice by Clive Stafford-Smith (it was a Christmas present from my Mum!) and it seems while there may be more appellate opportunities in the US, in fact the grounds upon which you can seek relief are so narrow and restrictive as to be useless plus there is a marked reluctance to undermine the Police or trial Judge.

    Having binged watched the series, I couldn’t say Avery didn’t do it but more importantly, I couldn’t be sure that he did.

    I am not so sure that a Judge would let in Brendan’s confession given his lack of understanding over his rights to a lawyer.

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