Making a Murderer season 2: In defense of the defense lawyers

I’m greatly enjoying Making a Murderer season 2.  As expected, however, it’s a little heavy on the emotional angle—how much footage can we watch of Avery’s mother painfully traipsing through her house?—and a little light on the law, at least for my taste.  But so far it’s quite good, and Kathleen Zellner’s theory of what really happened makes a lot more sense than the state’s theory presented at trial.  Nonetheless, MaM2 is painting an inaccurate picture of the criminal justice system in at least one respect.

The documentary includes some direct and implied criticism of Avery’s trial lawyers, Jerry Buting and Dean Strang.  And this criticism is coupled with action scenes of Dassey’s and Avery’s new attorneys doing all sorts of extraordinary things in their clients’ defense.  For example, Dassey’s appellate lawyer has an entire team around her to simulate oral argument at the Seventh Circuit.  And Avery’s new lawyer, Kathleen Zellner, has a team of paralegals and is shown traveling around the country to consult with experts in a variety of fields; they then conduct several tests, experiments, and recreations of events.

To judge Buting, Strang, or any trial lawyer by these insane standards is pure madness.  The legal work being done in MaM2 is simply not possible in most cases, or even in 99 percent of cases, or even in 99.9% of cases.  More important, much of it would not even be admissible in court.  In fact, to say that State v. Avery & Dassey is a one-in-a-million case doesn’t even begin to paint a picture of the rarity of what is being shown in the documentary.

The documentary did have some brief interviews with Buting and Strang, and they gave a little bit of insight into what it’s like to actually defend a case at the trial-court level.  To restate some of what they said, and to add to it, the difficulties in trying a case include the following:

1.   The trial lawyer will often be faced with hundreds of pages of discovery and hours of DVDs and CDs.  Avery’s case was even worse.  Sure, there were two defense lawyers, but there were many thousands of pages and hundreds of hours on disc.  Making sense of all this, reconciling the conflicting information, deciding what is important and what is fluff, and then having it at your fingertips is a near impossible task.  And during the trial itself, even the best laid plans will fall apart rather quickly.  (See below for more on that.)

2.    The defendant will usually not have any money for experts or even investigators.  Cobbling together money for the lawyer’s initial retainer amount is tough enough.  And good luck getting court-appointed experts.  You saw the treatment that Avery and Dassey got in the Wisconsin state court system—do you think those judges would be eager to open up taxpayers’ wallets to help two defendants who were charged with murder and, therefore, widely presumed to be guilty?  A request for many of the experts like the ones used by Avery’s appellate team would have been laughed out of the trial court.  Therefore, defense lawyers are nearly always forced to rely on cross-examination of the state’s experts.  And sometimes, this is the better approach, as defense experts would be subject to cross-examination by the prosecutor.  I have had cases where the strongest part of the state’s case was its cross-examination of my experts; I would have been better off without them.

3.    The issues that look important in hindsight, once the trial is over, may not have seemed important at all during the preparation stage or even during the trial itself.  In other words, what looks like an error after-the-fact was most likely a perfectly reasonable decision—maybe even the best decision—at the time it was made.  And keep in mind that Avery did not have unlimited money to prepare his defense; therefore, Buting and Strang had to prioritize and make decisions under severe financial constraints.  Should they have hired Expert C?  Maybe not, particularly given that Experts A and B whom they did hire were deemed more important at the time and, further, the facts they needed out of Expert C could be obtained through cross-examination of other witnesses.

4.    Once trial begins, all bets are off, as the trial will have numerous moving parts.  For example, the prosecutor’s theory of the case is a moving target and is more slippery than Ken Kratz at a press conference.  Witnesses amazingly, but routinely, change their stories from what they previously said or even wrote in their formal statements.  The trial judge will rule on objections in bizarre ways and contrary to well-established law, thus throwing everything off kilter.  And of course, prosecutors will cheat in unexpected ways during all phases of trial, which will create even more chaos and problems for the defense.     

In sum, trials are an absolute “shit show” that are uglier than the worst piece of modern art.  Even those trials that last only two or three days and have only five or six witnesses will often devolve into pure chaos.  Don’t be fooled by Buting’s and Strang’s calm demeanor during the trial as shown in the original Making a Murderer; they were juggling dozens of moving parts as things unfolded in unpredictable ways right before their eyes.

Granted, another defense team would almost certainly have made different decisions both before and during trial.  But that’s unavoidable, given the dozens (and sometimes hundreds) of decisions that defense lawyers must make throughout a case, combined with the imperfect information on which those decisions are based.  But even if a different defense team had worked Avery’s case, it is incredibly unlikely the end result at trial would have been any different.  Adding a defense expert here, or a piece of evidence there, is not likely to have swayed the jury one way or the other after hearing all the witnesses and seeing all the exhibits presented at trial.

Rather, as Ken Kratz hoped when he was giving his pre-trial presser (extra sweaty edition, here), Avery’s jurors may have decided his guilt before they ever stepped foot into the jury box.

[For more on the Avery and Dassey cases, see my books Anatomy of a False Confession (Rowman & Littlefield) and Convicting Avery (Prometheus).]