Mimesis Law
20 January 2021

Charging a Murderer, Steven Avery

Feb. 3, 2016 (Mimesis Law) — The Netflix docu-drama, “Making a Murderer,” is a cultural phenomenon. And if you’re a lawyer, it’s probably resulted in a landslide of questions from your family and friends. If you haven’t seen it, it’s basically like a ten-episode “Dateline.” The story revolves around Steven Avery’s wrongful conviction for rape, exoneration, civil suit against the county, then arrest and trial for murder of a woman.

The story is presented in such a way to provoke two thoughts in viewers: that it is entirely possible that one man is wrongly convicted twice, and the county sheriff’s office is either inept or corrupt. Plus, it has almost the perfectly written anti-hero, a successful prosecutor who admits he behaved like an over-the-top dick, engaged in a pre-trial publicity stunt that is unethical in many states, and then was forced from office and disciplined for sexual comments aimed at social workers and victims. Unlike Anita Alvarez, I am not suggesting that you have any sympathy for him. Finally, it has probably benefited from the sex symbol status now acquired by of one the plucky, underdog defense attorneys. So, it touches all the bases for popular entertainment.

For most attorneys, the second question from the lips of family and friends is “Do you think Steven Avery was guilty?” The first question was, of course, was “Have you seen Making a Murderer?” To the non-lawyer, this is a cut and dry question, something like is the sky blue or is water wet? Yet, Avery’s own attorneys take a nuanced approach when answering that question:

“Where do you stand on Steven’s Avery guilt or innocence? Are you allowing for the possibility that he may not be innocent?

JB: Neither one of us was there the day that he met Teresa Halbach, so nobody than God can say what happened. But…there’s no question in my mind that he should have been found not guilty. I think he very likely is innocent of this crime and has now been subjected to another second tragedy of wrongful conviction.

DS: In my view, the people who claim certainty about his guilt are wrong to claim certainty, and the people who claim certainty about his innocence are wrong to claim certainty — and they’re missing the point, which is, what do we do when we’re left with uncertainty?

The fact that this man consistently maintained his innocence and never said something suggesting his guilt is probably the most powerful indication to me…that he didn’t do it. People like Steven Avery, who come into the world poorly equipped to deal with police interrogation or media scrutiny or having their every telephone conversation recorded for 16 months — if they’re guilty, it comes out.”

That answer reads a lot like a qualified, “Steven Avery is probably guilty;” those answers just have to be de-lawyerified first with the decoder ring passed out with your bar certificate. Judging from the lack of experienced defense attorneys racing out to the press to defend Avery’s innocence, that’s probably a widely held view. On the other hand, every non-practicing academic sees their own particular pet issue in the inkblot before their eyes, with most of the commentary focusing around police and prosecution issues.

For example, the lack of certainty, mentioned above by Strang, was picked up and written about by Keith Findley, co-director of the Wisconsin Innocence Project. (Disclosure: Keith Findley appeared at a parole board hearing on behalf of a client I represented while a public defender.) His prescribed remedy is as follows:

Humility — that’s a pretty good prescription for fixing what ails our system. The humility to recognize that sometimes we are wrong, even when we are most certain. The humility to recognize we are all affected by cognitive biases that can mislead us. The humility to recognize that the system and the evidence it relies upon are flawed and can be improved. And the humility to recognize that when we occasionally get it wrong, we must do something about it.

Findley certainly appeals to a noble idea, but one that seems to be a generally ill fit for our adversarial criminal justice system. But even his prescription lacks potency, acknowledging that the next step after recognition is “doing something about it.” What exactly that something is, we aren’t told. On the other hand, John Pfaff, an academic at Fordham, with no apparent experience practicing the law, implies a more Marxist solution to the problem, in his article entitled “Why do prosecutors go after innocent people”:

Thus the costs of wrongful convictions are disproportionately borne by the group with less political power, or at least a weaker political voice. (Urban minorities are also the biggest beneficiaries of effective crime-fighting by prosecutors, which makes their reduced political voice all the more troubling.)

I’m not saying that this leads prosecutors to willfully go after disproportionately minority urban defendants, innocence be damned (although it certainly helps explain why, say, the current response to rising opioid abuse by whites has been more public-health oriented than the response was to crack cocaine). But it surely means that when deciding whether to file charges in an uncertain case, prosecutors will be more likely to focus on “safety” over “error” — to file rather than dismiss — since the suburban voters want to be safe, but it isn’t their families who bear the costs of error.

You can be forgiving if it never occurred to you that the bourgeois is oppressing the proletariat through prosecutor’s charging decisions. Feel free to not credit the law and economics professor who pays no mind to his own observation that the group bearing the greatest cost receives the greatest benefit. Needless to say, the professor’s rationale is about as solid as a chocolate bar left in the car on a hot summer’s day.

Like the above articles, crime docu-dramas, “Making a Murderer” for example, that focus on stories of wrongful convictions, belie the reasons why innocent people do sometimes get charged with crimes. Foremost, the decision to charge is a prospective and probabilistic conjecture framed by the legal principles, i.e. will a jury be convinced beyond a reasonable doubt that this person committed this offense.

At the end of “Making a Murderer,” the viewer has seen all the defendant’s arguments, evidence, as well as evidence and arguments post-trial. This disguises that essential adversarial nature of the system.

Presumably by filing charges, the prosecution believes that the suspect’s guilt can be proved beyond a reasonable doubt. And it is the job of the defendant’s attorney to undermine that case as best possible. In large measure, the uncertainty about whether the prosecution can succeed in the face of defense counsel is often built into the charge. For example, the element of serious harm might be difficult to prove, so a lesser form of assault is charged than what might have been possible. Or it might factor into a prosecutor’s decision whether to bargain the charge or sentence.

Consider, in the Steven Avery case, some of the evidence known to the prosecutor at the time of charging: victim was last seen by person with a criminal history that includes allegations of rape (not the wrongful conviction) and some violence, the victim’s car was found on the Avery property, partially hidden, with blood in it, remains were found in a burn pit along with personal items in the burn barrel, and other possible suspects “alibied” each other.

Then later DNA tests confirmed that the blood in the car was the victim’s and Avery’s, and a bullet with the victim’s DNA was found in garage. Later, defense counsel, as they should have, did their best to undermine this evidence. But, again, at the point the charging decision was made, there was a lot of evidence that pointed solely at Steven Avery. And this evidence doesn’t include the mysterious key to the victim’s car, or co-defendant’s confession, which wasn’t used at trial. It’s plain to see why defense counsel opted for the “police framed Avery” theory.

The expectation is that the trial and the presentation of evidence will not go perfect; in fact, it never does. But even when an acquittal happens, that alone isn’t cause to doubt the charging decision itself. For example, it is common in domestic violence cases for victims to recant their testimony. If the victim denies or minimizes the criminal behavior, then it’s usually hard to get a conviction. Further, sometimes procedural rulings can benefit defendants. If a confession is suppressed, and the remaining evidence is relatively weak, which in turn could lead to the acquittal of a guilty defendant.

Likewise, a successful post-trial motion may not mean the prosecutor was careless in charging the defendant. DNA-based acquittals happen most often in cases of erroneous witness identification. In hindsight, the DNA clearly demonstrates that the witness was wrong, but at the time of charging, that was likely not evident to the prosecution.

Certainly, DNA-based reversals on claims of wrongful convictions have taught prosecutors to be more careful, but prosecutors are not and cannot be neutral, grand inquisitors. Prosecutors are the accusers that must present the evidence necessary to convict defendants, and as a result, they cannot ignore evidence of actual innocence when charging a defendant. Sure, occasionally prosecutors are wrong but so are the European-style inquisitors.

Prosecutors everywhere must wrestle with whether the suspect is innocent or guilty. But shows like “Making a Murderer” invite the viewers to review claims of actual innocence from hindsight and blame overzealous prosecutors. Likewise, academics and reformers should first seek to understand how the charging process works before they criticize it.

5 Comments on this post.

Leave a Reply



Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • CLS
    3 February 2016 at 8:41 am - Reply


    Your close on the charging process reminds me of a poignant statement made by a stand-up comedian who used to work as a public defender in my neck of the woods.

    “People are only interested in “Making a Murderer” because it’s like porn. You’re more interested in the outcome than the process.”

    Indeed, people should work to understand the charging process, and the way people on my side of the table handle that process, before jumping on the Mass Outrage Machine stuff like “Making a Murderer” and “Serial” perpetuate.

    But that would require actual thought, and people spending more time reading and researching instead of finding the next binge watching show or looking at cat pictures on Facebook.

    • Andrew King
      4 February 2016 at 7:39 am - Reply

      I like that analogy.Thanks.

      • Cornflake S. Pecially
        4 February 2016 at 9:34 am - Reply
        • Cornflake S. Pecially
          4 February 2016 at 9:37 am - Reply

          Len Kachinsky

          Len Kachinsky

          Len Kachinsky


  • Jay
    3 February 2016 at 3:12 pm - Reply

    The ol’ bait and switch. We begin by pointing out the prosecutor in this case was a massive jerk and likely unethical, we end by stating prosecutors have a tough job and they’re just trying to prosecute the cases they believe they can win.

    This is the way they used to talk about cops. I suppose it makes sense that now that we’re finally talking about prosecutors, we have to start from the beginning.