Saturday, October 20, 2018

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).] 


  1. This is fair comment as a general observation about the realities of being a defense lawyer and it is true that some criticism of Buting & Strang has all the benefit of hindsight. They did a good job in many ways but there were huge gaps.

    However, I don't agree Zellner's criticisms were as you imply. She acknowledged they could not pay for the sort of expertese she has at her disposal even if she thinks they could have used their budget more wisely.

    Rather, she criticises them for failing to make the case with facts and evidence they already had in many, many instances. I think now, having seen how much more information they had at their disposal, that failure stems from their lack of conviction (at that time) about Steven's actual innocence. They were focused on saying only that the prosecution didn't make the case rather than on proving his innocence.

    Zellner also makes a huge point about how much was withheld from the defense which of course they could do nothing about. She criticises their argumentation - especially for so often failing to put the evidence they did offer in full context which they so easily could have. They jury were left in many instances to infer things, rather than having them plainly pointed out to them - dots needed to be joined up for them. This is fair, constructive observation and I suspect B & S are fully equal to it - they are decent men who want to see justice done. She is absolutely right that the prosecution's case was - and still is - truly dreadful, too.

    One thing in particular that stands out: Dean Strang argued at closing that he did not believe the police knew Avery was innocent! Ergo they were not trying to frame him, as such. He handed the case to the prosecution right there: these cops were good guys trying get the result which they believed served justice. They might have gone over the line a bit. He totally undid the clear impression that had emerged from the facts that the police were more than a little dodgy about this. He also conveyed that he didn't necessarily believe in his own client's innocence himself, that this was merely semantics for him, whether the prosecution had actually proved their case and not whether Avery was in fact innocent. What on earth was he doing reassuring the jury about how genuine the cops were? He seemed to imagine his misguided tilt at seeming reasonableness would somehow be more compelling for the jury. Disastrous. He had more than enough evidence that something was truly rotten about this case. Professionally speaking, he should absolutely have conveyed that he was 500% certain of his client's innocence.

    1. You raise many good points, but I disagree with three of them.

      1. As for Dean's closing argument, I think it makes sense to say, as he did, that the police believed Avery was guilty, and they therefore cut corners and did sloppy work and even lied and planted evidence in order to prove what they already believed to be true. To argue that the police were trying to frame a man they believed to be innocent, while letting the real killer go free, would have been a tough case to make.

      2. I'm confident that Jerry and Dean would have vigorously defended the case regardless of their personal opinion about Avery's actual guilt or innocence. In an adversarial system like ours, we defense lawyers are not allowed to pre-judge the client's guilt and then do less of a job when we think they're guilty. This is true even if the client confesses to us. (The only limitation is that we are not ethically permitted to put on the client's testimony at trial if we know it to be false.) In other words, criminal defense lawyers aren't affected by personal opinions, if any, regarding guilt or innocence. Kathleen Zellner is a rare bird in that she only represents clients she believes to be innocent. The system would collapse if more than a small percentage of lawyers did this. I don't know of anyone else who takes this approach. (I'm not criticizing her. Freeing the wrongfully convicted is important work, and of course your time is spent more productively if you pre-screen for innocence.)

      3. As far as closing argument, there is a good case to be made that a defense lawyer should never try to prove the client's innocence. If you do, and if the state's case is slightly more credible that the defense case, then you could lose. The better practice, in most circumstances, is to argue that the state did not prove its case beyond a reasonable doubt. There are different opinions on this, but as a rule, I do not want to take on a burden that I don't have, i.e., convincing the jury of my client's innocence. It's an especially tough task, particularly given the limits on the third-party defense that the judge imposed on Jerry and Dean.

      Thank you for reading the Legal Watchdog and commenting on the post!

  2. With respect, the defense would have been much better off making a firm case for their client without explicit, favourable reference to the prosecution's convictions. Madness. That's going way over the line. At that point some jurors may very well have been thinking that something more was afoot. Let them think it! Look what was at stake for Avery! The prosecution's conduct of the case was outrageous - and their motives not good. He didn't intend it but DS effectively told the jury to ignore all of that.

    Buting & Strang did vigorously and expertly defend their client regardless of their convictions, but their private ambivalence showed through more than they would have intended - in their tone, in their choice of words and in certain decisions they took. And in interviews after the release of the first MaM.

    This is textbook armchair criticism after the fact but it doesn't mean it isn't true.

  3. There are far too many instances where Buting and Strang exhibited poor judgement.

    In my opinion they lacked a strategy and were at times ill prepared.

    They made many many bad decisions.

    Kratz knew this was a huge trial they had to know that also - where are the interns, where is their strategy, and as far as expert witnesses one of the 2 they called (the state called 14) the one the called on the bones - they didnt even have him actually examine the bones - this is not hindsight if they didnt understand calling an expert witness to testify on the bones who never saw the bones wouldn't be compelling they shouldnt be in the court room! I can imagine their conversation with their expert - "is it gonna cost more if you actually examine the bones? Well yes! Ok - nevermind just use eisenburgs report" come on this is ludicrious!

    But the biggest thing to me is that they could have impeached the testimony of just about every one of the states witnesses easily - the opportunities presented themselves - and they either didnt catch them or simply refused to use them.

    Sure there are plenty of things you can judge them on and write them off as hindsight but there are just as many that no hindsight is required that using just sound judgement is all they would have needed

    1. I'd be curious as to where you think they should have impeached witnesses, but failed to do so.

      As far as experts, I'd have to read the entire transcript to form an educated opinion on that, but it is very common, for both the state and the defense, to call experts for general purposes when they have no involvement with the facts of a particular case.

  4. I regrret some of my earlier comments here. Not fair to Buting & Strang. After watching MaM2 I had been disappointed to realise how much evidence B&S seemed to have ignored. Having watched the first season again, I just wanted to say that I was wrong. While it's true they omitted to explore some of the evidence, the case they made nevertheless went straight to the heart of what appears to have happened, with economy and precision. Namely, the police did not commit this crime as part of some vast conspiracy to get Avery, but they did what they could to blame it on the guy they wanted to believe was guilty.

    B&S went too far imho by crediting the police with actually believing Avery was guilty - that made them out as moral actors. The truth was that the police had no way of knowing who was guilty based on the case they made and all the evidence it seems they suppressed and/or planted. B & S gave Kratz his opportunity to say: "If the police know he is guilty then does it matter about planted evidence?" Brazen and outrageous of course.

    Post conviction and MaM, B & S were also ambivalent about Avery's actual innocence in interviews - esp. Strang.

    Zellner's theory of the crime is no different at all in its essentials from Buting & Strangs. And as has been said, she has vastly more funds with which to explore the facts and evidence. I'm back to my original view: they did a pretty superb job in extremely difficult circumstances. They carefully filleted the core of the case and worked on that. There was also some monkeying around with the jury and we know that 7 of them originally were voting not guilty. Plainly therefore they must have done a pretty good job.