November 30 2021

‘Making a Murderer’ and the limits of open justice

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‘Making a Murderer’ and the limits of open justice

For many of us, Christmas 2015 will be remembered as that time we binge watched Making a Murderer on Netflix. The ten hour documentary provokes a wide range of emotions rarely experienced whilst watching telly. The subject of the documentary is Steven Avery, a Wisconsin man who spent 18 years in prison for a sexual assault that he did not commit. In 2005, two years after his release and after Avery had filed a $36 million federal lawsuit against the county and named individuals responsible for his wrongful conviction, he was arrested for murder.

The documentary covers a decade of legal battles, from Avery’s arrest and conviction of murder to present day. It has a fly on the wall perspective where the viewer gets to experience things such as interviews inside police interview suits, examinations of alleged crime scenes, visits to crime labs and we get to see important parts of court proceedings relating to the case. This is raw justice in action. Having worked with wrongful convictions for nearly a decade, I am overwhelmed by the accessible and ‘open’ justice process that this documentary highlights.

In England and Wales such an open justice process does not exist.

A partial lifting of a long-standing ban on cameras in court rooms in 2013 meant that cameras were permitted in the Court of Appeal, but the ban still applies in crown and magistrates’ courts. Where cameras are allowed, stringent restrictions apply and only footage of lawyers and judges is permitted.

Furthermore, court transcripts are automatically destroyed after five years unless they have been placed under a preservation order. Once destroyed, the important verbatim record of what was said in court is lost forever. Similarly, defence solicitors’ files are destroyed after a period of six years unless they have been claimed by the defendant or passed on to another party. Those working with criminal appeals in England and Wales are left to piece together a case, and find the new evidence needed for an appeal, from a stale and fragmented mess often consisting of police interviews, statements and reports given prior to trial, and the judge’s summing up and sentencing remarks. This is highly problematic.

Omar Benguit was convicted of murder in 2005 and continues to maintain his innocence after three trials and two failed appeals. I work on Benguit’s case and tried to get hold of the court transcripts. Communication with the relevant transcription provider, Mendip Media Group, confirmed that apart from the sentencing remarks (four pages, available for £1.58) the transcripts had been destroyed several years ago. Benguit faced three trials on the same murder charge before the third jury found him guilty of the crime.

The court transcripts from the three trials would have provided invaluable information as to what actually happened in the court room to convince the third jury that he was guilty beyond reasonable doubt.

Investigation into Benguit’s background has revealed that in 1995, he had been arrested and held in police custody for a few hours for a horrific murder that he had nothing to do with (the real perpetrators were identified, convicted and sentenced). There was no link between this murder and Benguit, so the question of why the police arrested him and searched his flat must be asked. The defence solicitors who had represented Benguit at this time confirmed that, unfortunately, the files relating to this arrest had been destroyed.

In the US, full court transcripts are often a major part of any criminal appeal work. For example, in California court transcripts are generally kept electronically for at least 10 years and frequently much longer. This gives appellants a much better chance to fight their wrongful convictions. In England and Wales, legal aid for criminal appeals is very limited, and the additional expenses often involved makes it virtually impossible for many wrongfully convicted to achieve a successful appeal.

Being able to access a verbatim record of what was said in court, whether written out or video recorded, will work towards a more accountable criminal justice system. In England and Wales, this ‘evidence’ is systematically destroyed. In our age of information and technology, this is both unnecessary and unjust. Appellants in our jurisdiction deserve the same accessible and open justice process that can be seen in Making a Murderer. Reforms of policy and practice relating to court transcripts (and cameras in courts) are long overdue.



One response to “‘Making a Murderer’ and the limits of open justice”

  1. Emily Bolton says:

    Marika Henneburg makes an excellent point.

    The lawyers at the Centre for Criminal Appeals have worked on appeals in both the US and the UK, and have concluded that the UK lags behind the US in access to justice in this area. There is much talk of “secret trials” in the counter-terrorism field, but from the perspective of a US lawyer, all criminal trials in this country look like secret trials.

    This is because in the US you have access to the full transcript of the trial and in many states, all the police file and all the prosecution file, once a conviction becomes final when the direct appeal is denied.

    In this country we have none of this. As representatives of wrongfully convicted prisoners we feel like we are fighting their cases with two hands tied behinds out backs, hopping on one leg.

    The CCRC can access police and prosecution files under its Section 17 powers, but is so under-resourced that it cannot deploy this power where it should – and even when it does, it is forbidden by law from sharing these files with the prisoner’s lawyers.

    At the Centre for Criminal Appeals we spend hundreds of hours on individual cases and as a result know them better than the time-starved caseworkers at CCRC ever can – and therefore far better placed to recognize the significance of information in a police or prosecution document – but we are not allowed to see it unless the CCRC relies on it in referring a case back to the Court of Appeal. What about all the points of significance inevitably missed – and what about all the cases not referred?

    The transcript is also critical. In the courtrooms of cash-strapped states like Mississippi, a prisoner gets a record of everything that was said in his or her trial. In this country, the system was privatized, and now profit-driven transcription firms hold justice to ransom, demanding thousands of pounds to provide sections of transcript of a trial. Neither the Legal Aid system nor individual prisoners or their families can afford this, and so the recordings languish unreviewed, and the system goes unaudited.

    A criminal justice system cannot learn from its mistakes if it does not face them. At the Centre for Criminal Appeals, via our Open Justice project, we intend to shine a light into the darker corners of criminal justice, and access to transcript and police and prosecution files are top of the list.

    As it stands, the system in this country has its head in the sand by design – leaving the question did British Justice ever deserve its reputation for fairness and high standards, or has it just never been exposed to the light of day?

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