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‘Making a Murderer’ Lawyers Discuss Justice After Steven Avery

Jerry Buting and Dean Strang on Avery’s appeal, the power of prosecutors and defending “the most hated man in Wisconsin”.

Jerry Buting and Dean Strang on Avery's appeal, the power of prosecutors and defending "the most hated man in Wisconsin".

Fans of Netflix’s 10-part true crime docu-series Making A Murderer may still be debating Steven Avery’s guilt or innocence in the 2005 murder of Teresa Halbach, but there is one thing on which there is near universal agreement –Dean Strang and Jerry Buting are the heroes this documentary series desperately needed. Even with rose-colored glasses firmly affixed to one’s face, Making A Murderer is a brutal reminder of how tenuous a guarantee ‘the right to a fair trial’ actually is. At worst, it was the soul-crushing story of how one man could be falsely convicted and imprisoned twice in his lifetime. If not for Avery’s Wisconsin-born, norm-core styled defense attorneys, this would have been bleak binge-watching indeed.

Related: How Making a Murderer’s Steven Avery Could Be Freed Without a Trial

The care and attentiveness they extended to their client as well as his entire family (not to mention the filmmakers), stood in stark contrast to the dismissive treatment doled out by local media, law enforcement and the district attorney’s office. The pair’s earnest pleas for justice and certitude — combined with Strang’s lustrous hair (does he use ALL the conditioner in Wisconsin, because it’s shinier in person?) — and Buting’s imposing stature, literally turned them into heartthrobs. There were Valentine’s Day cards, many memes and even a @SexyDeanStrang,Twitter account. Strang has even been tapped to star in his own docu-series, reportedly titled Dean Strang: Road to Justice.

While both seem slightly embarrassed by the attention — in fairness, mooning over Strang and Buting could be considered a coping mechanism for Making A Murderer inflicted depression — they have also seized the moment as an opportunity to draw further attention to the failures of the justice system. Strang and Buting recently embarked on a nationwide ‘Conversation on Justice’ tour, in which they discuss in further depth both the Avery case and the surrounding issues it highlights.

Why do you think you both were so beloved by Making A Murderer viewers? Is it because so many other people in the series are such garbage?
Dean Strang (laughing): You get to say that, I’m not saying that!

Jerry Buting: Are we recording yet?

We are.
Buting: People tell us that it’s because we’re sincere, genuine, caring about our clients and I guess that’s not what most people expect of criminal defence attorneys.

Strang: It’s been a long time since Perry Mason and To Kill A Mockingbird. It’s much more Better Call Saul these days. Even the positive portrayals of defence attorneys are often slick — and people distrust that. But I have no idea. I have no idea why this series resonated with people.

Avery’s current attorney, Kathleen Zellner, has said that she plans to argue ineffective assistance of counsel as part of her bid to have his conviction overturned. Do you want to clear anything up?
Strang: She’s doing what she should be doing here, which is looking at everything, including us. When it’s late in the process of trying to challenge an appeal, the route most acceptable to courts when they think someone ought to get a new trial is to blame the defence lawyers. She understands that, we understand that. It’s always hard to get a conviction reversed and often the most acceptable reason for granting relief from a court is to blame the defence lawyers. That’s not Kathleen Zellner’s fault.

Do you think the courts will weigh the facts of this case more seriously than if there hadn’t been so much media attention?
Buting: Well, that shouldn’t matter for a court, but it does matter in terms of people coming forward with new information, both factual and scientific. The documentary has certainly had an effect on that – what facts or science might be admissible and reliable enough to make a difference, I don’t know, but without the documentary, there wouldn’t have been the same willingness for people to come forward, perhaps.

I read an interview where you called Steven Avery the most hated man in Wisconsin.
Strang: At the time, absolutely.

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Steven Avery (Netflix)

Do you think that’s still the case, especially with renewed attention from Making A Murderer?
Strang: My sense is that while he’s not gotten any more popular in Wisconsin, the intensity, the hatred, has faded over time. But yeah, not only was he the most hated man in Wisconsin at the time, he was the most hated man in Wisconsin since Jeffrey Dahmer. I think there’s no question about that.

Buting: You know, in Wisconsin there are a lot of people who won’t watch [Making A Murderer] because they think they’ve heard enough and their minds are already made up. But those who have watched it, at a minimum, think he got a raw deal. That his trial wasn’t fair, the jury came from a biased pool…

Strang: There’s some force to that. I think that’s right. The people who have watched it in Wisconsin, they may not think that he’s innocent, but some of them I think are probably more willing to say, ‘But that’s not the way trials should work.’

There was backlash from critics who felt like the series favoured Avery, and that the filmmakers left out important evidence against him. Do you feel like critics have overly focused on Avery’s guilt or innocence, rather than the issues raised by the series?
Buting: Yeah, probably both ways — those who think that he’s guilty and that they left out evidence that would prove that, and those who think he’s completely innocent. Recognising that the filmmakers had to make editorial decisions – they couldn’t put the whole six weeks into a 10-hour documentary – the main points that were contested during the trial are well documented in the documentary. The witnesses say what they said, people get to see what they said and how they said it. The backlash was largely a concerted effort by the former Special Prosecutor [Ken Kratz] to try and change the facts and make points of evidence that really weren’t as important at the trial suddenly now more important because they weren’t in the documentary.

Was it disappointing to see media outlets seize upon Kratz’s criticism of the documentary in terms of his characterisation of what evidence the filmmakers left out?
But that’s so easy, because the narrative the public ever hears about a case is the police and prosecutor narrative. And that becomes the surveying stick, the accepted version of the events, because it’s the first coherent story we hear. So when the prosecutor then wants to resuscitate that version of events, it’s very easy for the media to say, ‘Oh, that’s right, we just go back to the first narrative that he gave and we measure the legitimacy of any other narrative by its distance from the prosecution narrative. This, to a very large extent, has been a one-man backlash and a backlash that’s very carefully refers to some police reports rather than the evidence at trial, which largely undermines the critique of the film.

The problem being that the media narrative of a case like this is so often determined by what the police and prosecutors say, but the media rarely goes back to correct that information if it’s revealed to be wrong.
Buting: That’s exactly right. They repeat the same stories. And it was maybe even worse in this case, because after the press conference by the Special Prosecutor that poisoned everybody, a gag order came down from the court – then neither side could say anything else. The media had to report something, so they just rehashed the same false narrative from that press conference over and over and over for 10 months.

Did anyone in the media reporting on the case at the time watch Kratz’s press conference and respond with skepticism?
Buting: But see, they didn’t know the other side until the trial began and they started seeing our cross examination — that first week, everybody was like, ‘Whoa, this is completely different than what we thought. This is a really close case.’ But even then, their skepticism didn’t often make it into the 2-3 minute portion that aired that night, for whatever reason, like their producers and editors picked different areas to focus on. It’s frustrating and that’s one of the reasons we decided to go on this tour, so we could have a conversation that is more in depth, where we can address some of the issues that are bigger than the Avery case.

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Ken Kratz (Netflix)

Was the Avery case simply a perfect storm of the worst of the criminal justice system, or are all of these problems far more common than people realise?
Buting: They are not uncommon, let’s put it that way. They’re not unique to his case. The thing that’s most unique to his case is that this is a guy who was wrongfully convicted and then later charged with something this serious.

Strang: And had a lawsuit pending over the prior conviction. I think to some extent ‘a perfect storm’ is a good description in regards to Avery. It’s less common for them to have them all bunched up in the way it was here.

Buting: Right, and a lot of the elements that you see – the police misconduct, the prosecutorial misconduct – are unfortunately not uncommon in many cases. When you look at the DNA exoneration cases that they’ve gone back and studied, a certain percentage of them have false confessions [20 percent], a certain percentage of them have false eyewitness identifications, a certain percentage have prosecutorial misconduct, but some of them have bits of each. So some of them have a perfect storm of their own, they just don’t also have the scenario where somebody has been exonerated and is suing the very people who are then prosecuting him again.

Strang: But you know what really is common? Brendan Dassey’s experience. Young, naïve, learning disabilities, developmental delays, very manipulative police interview techniques that completely mismatch the person in custody. That’s very common.

At some point, Kratz and company decided not to use the narrative Brendan Dassey laid out in his retracted confession to argue Avery’s guilt. How is trying two people for the same crime based on two entirely different narratives even legal?
Strang: That’s one of the most troubling things about the film, but unfortunately, inconsistent prosecution theories in successive trials for the same crime are not that uncommon. And by and large, courts tolerate that.

Buting: For example, when they have two defendants, but only one was the shooter, and the question is which one did it? In one trial, they may say defendant #1 did it, and in the next trial, they may say it’s defendant #2.

Strang: Especially to try to get the death penalty against each.

Buting: And the courts should not allow that, and the public should not allow that. The public needs to rise up against it and say, ‘This is outrageous.‘ Stand up and be heard, in the jury box, in the ballot box and in conversations with each other. The public needs to say, ‘We won’t accept this. This is not our country. This is not what we want.’

Strang: Because, look, it’s indisputable that if a prosecution presents inconsistent and irreconcilable theories to two different juries on the same crime, it’s indisputable that at least one of those trials is not a search for the truth. If one narrative is true, the other one can’t be true and if you’re presenting both of them, at least in one of those trials, you’re not on a search for the truth. And a fair question is whether, in either trial, they’re in search of the truth or just two convictions.

Buting: In this case, the continued prosecution of Brendan after the conviction of Steven Avery had probably a whole lot of different motivations, but one of the most obvious is that they knew Steven Avery was going to be appealing his case. They knew that there were a lot of questionable rulings and decisions that could potentially have resulted in a new trial for him, and they were not going to give up the possibility of trying to get Brendan Dassey to flip and be a witness against Avery, if it came to that. So they’re not just going to say, ‘Okay, we got what we wanted, Steven Avery’s gone, that’s the end of it’ and drop things against Brendan.

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Dean Strang, Jerry Buting, and Steven Avery in the courtroom. (Netflix)

At one point in the series, Dean, you said that cops frame people who they believe are guilty. Do you still think that?
Strang: Yeah, it’s almost always because they think someone is guilty and they fear that he will escape justice.

But how often is that kind of conduct based on a reasonable belief?
Strang: If you’re talking about a police officer who is willing to break the rules and plant evidence, you might also wonder how solid his conclusions about guilt are. But my point was simply that I think it’s exceedingly rare for a police officer to set out to frame someone he knows or believes to be innocent. The temptation to augment a case dishonestly — by planting evidence or just by writing a skewed police report or perjury-ing himself around the edges of trial — arises almost always when, for whatever reason, the police are convinced that they’re doing this to strengthen the prospects of conviction of a man they believe to be guilty.

Buting: It’s also very rare that police would have the kind of personal motive to frame somebody that may have been indicated in this case. Where the police are being sued and a county would go bankrupt.

That’s why it seems key to consider people’s biases – where race and class come into play in terms of how the police view different groups of people.
Right. ‘He’s not guilty of this, but he is guilty of something else, so let’s clean up the neighbourhood, take one more bad guy out.’ I’m sure there’s that attitude. The problem is, as a society, why have a jury trial then? We can’t allow the police to be judge, jury and executioner. Then we’re no better than a totalitarian state.