July 21 2022

REVIEW: A one-sided conversation with the Making a Murderer lawyers

REVIEW: A one-sided conversation with the Making a Murderer lawyers

REVIEW: A one-sided conversation with the Making a Murderer lawyers

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REVIEW: A conversation with Dean Strang and Jerry Buting

RNCM Concert Hall, Manchester, 22 Oct 2016

The last time I bought a ticket to see two middle aged men on tour, the evening involved heavy riffs, beer in plastic cups, fainting fans and a lot of air guitar. So, when Dean Strang and Jerry Buting, the former defence attorneys of Steven Avery, walked on stage to wolf whistles and screams… it raised an eyebrow.

Why? Well, they were unsuccessful. There was something strange about seeing lawyers on ‘tour’ – a spinoff discussion series about their former defence of a man convicted – and quite possibly guilty – of horrific offences (despite the likelihood of being ‘fitted up’). It was stranger still to see them received as rock stars and sex symbols (yes, really). Nevertheless, the pair have become unwitting celebrities following Making a Murderer, the popular series documenting Avery’s trial, prompting public outrage at his conviction and causing Strang and Buting to be seen as heroes.

The evening took the form of a Q&A hosted by Hannah Quirk, an academic from the University of Manchester, with questions submitted in advance by audience members. Strang and Buting explain that the idea behind the tour was for them to ‘use the microphone’ afforded to them through the series’ popularity, to raise awareness of ‘the systemic failures of the criminal justice system, as well as the broader implications of the Avery case’. Putting cynicism aside, this is a commendable purpose – definitely worth a cheer.

For those not acquainted, the 10 episode series covers the trial in Manitowoc County, Wisconsin, which led to the convictions of Avery and his nephew Brendan Dassey in 2007, for the rape and murder of a young woman in 2005. It highlights the possibility that evidence was planted to frame Avery, and that Dassey, who is 16 and has learning difficulties, was interviewed improperly. This is linked to the County Sherriff’s department having a conflict of interests, as they are subjects of a civil lawsuit, having previously wrongfully convicted Avery.

A biased documentary?
As the show’s popularity grew (and with it, outrage at Avery’s conviction), so too came critique that the show was biased towards the defence. In terms of airtime given to parties involved in the case, Strang and Buting agree. They received a lot of camera attention, as did Avery’s family. Strang (the one that looks vaguely like Michael McIntyre) argues that the unequal weighting was due to those on the side of the defence choosing to co-operate with the filmmaking to a greater extent. He also states that the filmmakers tried to balance the narratives by including parts of the prosecutors’ press conferences. Buting (the one that looks vaguely like Woody Harrelson) reflected that it would have been interesting to hear first-hand from officers and others appearing for the prosecution, how they felt the trial was going, their views on how evidence was received and their views of the unfolding events.

The pair were also asked about the omission of some pretty damning evidence. The prosecutor, Ken Kratz, has stated that crucial information was not seen on camera. There was DNA evidence allegedly of Avery’s hands on the bonnet latch of the victim’s car (which investigators were led to by an omitted part of Dassey’s confession), and the victim’s phone, camera, tooth and a rivet from her jeans, found burned on Avery’s property. Additionally, there was evidence that Avery requested the victim to come to his property, hiding his identity and giving fake details to overcome the victim’s apprehensions. Further, Avery allegedly spoke about torturing young women, and purchased leg irons, prior to the murder.

Most of this was not presented to viewers – which may explain the outrage at his conviction. When asked about the omission of crucial evidence by the series, Strang and Buting stated that three hours of screen time were afforded to the five full weeks of evidence – so inevitably, not everything could be covered. Interestingly, Strang believes that the evidence omitted was not crucial.

Flaws in the US justice system
Several questions centred on the way evidence was treated in court, such as the EDTA ‘bad science’. According to Strang, US courts would typically not disallow evidence if the way it was handled was questioned. He explained that the jury would be told to decide on the value or integrity themselves. Strang informed the audience that, interestingly, changes in evidential rules made three years after the case, would mean that the EDTA evidence would likely not be admissible now.

Buting cites the Reid 9-step interviewing technique (where the interviewee can be lied to and effectively coerced) as a major problem in the US, in comparison to the UK’s ‘PEACE model’. Specifically, he attributes Dassey’s confession, much of which he argues was coerced and untrue, to the controversial Reid technique. When asked which changes he would recommend following the case, abandoning the Reid interview technique was suggested straight away, along with mandatory taping of all interviews. (Currently there are no national standards – most states do not require interrogations to be recorded.) Crucially, he stated: ‘A lot of people think that if the jury get it wrong, it’ll just be fixed on appeal. Not the case. 92-95% of appeals fail.’

Strang recommended that increased care should be taken when selecting jurors who will be impartial. This, he explained, was because of the huge amount of online information and publicity the case received – daily press conferences (another distinguishing US feature) meant that jurors need only tune in to some form of media for information and comments about the case to potentially prejudice their view. To limit this, Strang and Buting limited press conferences to only discuss trial events that had happened that day.

What really highlighted their concerns over jury prejudice, and the difficulty of their job as defence attorneys, was illustrated by a comment Buting made about Avery having very blue eyes. He spoke about the need to take this into consideration when deciding whether Avery should take the stand – as it ‘might be believed amongst the community that eyes were windows to the soul’. His implication is concerning – but the fact that the lawyers felt it necessary to consider the potential effect of Avery’s eye colour upon jurors is an equally uneasy truth. Viewers are completely unaware of these small details of the trial – yet they inform much greater decisions, such as Avery not testifying – which can drastically affect juror’s views.

Is Avery innocent?
Finally, the question on everyone’s mind: do Strang and Buting believe Avery is 100% innocent? Buting stated that he ‘wholeheartedly argued for his innocence’. Interesting choice of words. Buting’s reasoning was the absence of all the normal evidence that should have been present in the prosecution’s proposed narrative. He also reasoned that Avery had no motive, and that the County Sheriff’s Department had a clear conflict of interests.

Absent from the entire conversation, was any discussion about the possibility that Avery was factually guilty, yet the conviction was unsafe due to misdeeds done by the County Sheriff’s Department. Both the documentary and talk highlight compelling evidence of the justice system failing Avery and Dassey – yet little was presented to establish that they were not involved.

The Q&A was an interesting and intellectually stimulating evening, but I am left with more questions than answers. Although billed as a ‘conversation’, only one side was presented. Let there be no mistake – defending an accused person to ensure they receive a fair trial is honourable, and the lawyers’ hard work on Avery’s case seems admirable, particularly in exposing dubious tactics by investigators. It is also excellent that lawyers are increasing public awareness about the factors causing miscarriages of justice.

However, there are more direct ways to disseminate the issues and learning points from the case, than a Q&A with a general audience. Rather than discuss ways to redress issues causing miscarriages of justice, this tour aimed to ‘keep the conversation going’. It would be naïve not to note the publicity and income generated (though it should be noted that some of the proceeds will go to equal justice charities). As rapturous applause and more wolf-whistles fill the concert hall, I wonder what the victim’s family would think.

As it stands, Avery remains convicted and appealing. Dassey’s conviction was overturned, but he remains in custody while State prosecutors appeal this decision. The case has been passed to fresh lawyers.