Junkyard Justice

In late December 2015, Netflix released ten episodes of the documentary Making a Murderer. Within days the story swept the world – an astonishing saga of the american justice system, of a man exonerated after 18 years in prison only to become the prime suspect in a brutal murder. ROBERT PIRRIE WS examines the competing narratives in an extraordinary 30 year courtroom melodrama.

Spoiler alert: contains details of the Avery verdict.

Teresa Halbach arrived at Avery Auto Salvage in Manitowoc County, Wisconsin on the cold afternoon of October 31st 2005. The vast yard was an anomaly in a county of farmers and the Avery family themselves an aberration to many – the apotheosis of hillbilly white trash from the wrong side of the tracks, a large brood who lived in a collection of trailers alongside piled up cars. Amongst the many branches of this family tree, some of the younger generation were well known to the local authorities. Halbach, a 25 year old middle class local and photographer for Auto Trader magazine was scheduled to meet with Steven Avery at his trailer home in the grounds of his parents’ yard. The assignment was a simple, routine job: to photograph a minivan that was for sale. She was seen by several witnesses during the mid-afternoon taking pictures. Teresa Halbach disappeared the same day. Stephen Avery appeared to be the last person to have seen her alive.

On November 11th, Avery was charged with the murder of Halbach after police found her car and charred bone fragments at different locations on the Avery Auto Salvage lot. His arrest seemed straightforward. Steven Avery, however, was no ordinary suspect.

  Steven Avery on his parents’ cabin property in November 2015, days before his arrest charged with murder for the murder of Teresa Halbach (picture © Milwaukee Journal Sentinel, Wisconsin).

Steven Avery on his parents’ cabin property in November 2015, days before his arrest charged with murder for the murder of Teresa Halbach (picture © Milwaukee Journal Sentinel, Wisconsin).

At the time he was taken into custody, Avery was in the middle of a $36 million federal lawsuit against Manitowoc County, its former sheriff Thomas Kocourek and former district attorney Dennis Vogel for his wrongful conviction in 1985 of the attempted rape of a Manitowoc woman, Penny Beernsten. Avery served 18 years for assault, sexual assault and attempted rape before being exonerated in 2003, when the Wisconsin Innocence Project took his case, eventually proving conclusively through DNA evidence that another man, serial rapist Gregory Allen, was in fact guilty of the crime. The Manitowoc authorities had long been aware that Allen was a suspect. Why, then, from the very day of the attack onwards had they focused all their energies on the arrest and conviction of Avery? And why, 20 years later, was he the sole suspect for the Halbach murder?

WHY, 20 YEARS LATER, WAS AVERY THE SOLE SUSPECT FOR THE HALBACH MURDER?

Steven Avery had become a local celebrity since his pardon. On October 31st 2005 - the very day Teresa Halbach disappeared - state legislators passed a bill to prevent wrongful convictions in Wisconsin. It was entitled the Avery Bill. Avery’s lawyers were deposing witnesses from the police for the multimillion dollar lawsuit. Prominent local law enforcement fi gures faced the threat of personal liability. Avery’s arrest for murder came at a fortuitous moment – too fortuitous, many thought.

Avery himself was adamant from the start that he was being framed for murder by the very people who had framed and convicted him for rape 20 years earlier. Just as this story started to gain traction with the media and public, Manitovoc County produced a spectacular and apparently conclusive new piece of evidence – the “confession” of Avery’s 16 year old nephew, Brendan Dassey. In a lurid and overexcited press conference broadcast live on television, Wisconsin Special Prosecutor Ken Kratz detailed – only after warning that those under 16 years old should leave the room – how Steven Avery had coerced his teenage nephew into helping him rape and brutally murder Teresa Halbach. Overnight, almost everyone, including Avery’s own sister – Brendan’s mother – was convinced of his guilt.

BESPECTACLED, DARK-SUITED AND SLIM THE TWO STAND OUT IN A SEA OF PLAID SHIRTS AND STONEWASHED DENIMS.

At this point defence lawyers Dean Strang and Jerry Buting were appointed to act for Steven Avery. Considered the best in the state of Wisconsin, the two men had not worked together before, but soon formed a formidable partnership. In a bitter irony, Avery could only afford them because of the several hundred thousand dollars the County had paid for his previous wrongful imprisonment. Bespectacled, dark-suited and slim the two stand out immediately in a sea of plaid shirts, stonewashed denim and overweight law enforcement offi cers. The rapport established between them and Avery’s parents - his puffy-eyed, careworn mother and taciturn, burly father – is one of the documentary series’ most touching side notes. The careful way Avery senior hands Buting his leverarch fi les as they head into court says more than words about his respect for these out-of-town lawyers. Quite simply, as USA TODAY headlined a picture of the two on 10th January 2016: “These are the good guys”.

Strang and Buting, both experienced trial lawyers, seem fairly well-versed in cases of suspected police corruption. Yet it soon becomes clear that even they have never seen anything like the Manitovoc case. Making a Murderer contains footage of Strang watching a documentary about the case – broadcast before the trial had begun – in which Manitowoc County Sheriff Ken Petersen says, “If we wanted to eliminate Steve, it would’ve been a whole lot easier to eliminate Steve than to frame Steve... or if we wanted him killed, it would be much easier just to kill him”. Thus would the County be rid of Avery and his $36 million lawsuit. “I can’t believe what I’m watching” Strang says.

By this time, the story had come to the attention of documentary filmmakers Laura Ricciardi and Moira Demos. Ricciardi herself was a former lawyer, a fact that proved useful in the extensive legal research required to make sense of the case. For ten years they followed Avery, Dassey, their families and lawyers through court cases and appeals. Unable to interest established television networks in America such as PBS and HBO in their fi lms, the women eventually met with Netflix, who agreed to an unprecedented 10 hour documentary series.

The series was made available to view on 18th December 2015 an the critical and public recognition was instant – Avery’s lawyers began receiving 1,000 emails a week, with #MakingAMurderer trending worldwide on Twitter. Avery’s elderly parents – for many viewers, two of the heroes of the piece – began receiving mail from all over the world. And at the heart of the public response was an outpouring of anger at what many saw as a determined and organised campaign to convict an innocent man of a murder the authorities knew he did not commit. The American justice system was suddenly under the microscope of the new media age.

THE PRESUMPTION OF INNOCENCE IS FOR THE INNOCENT MAN

Competing narratives were at the heart of the appeal of the series. Netflix’s own trailer ran with the teaser: “Who will you believe?” Whilst academics have long studied the idea of narratives in the justice system, generally the competing narratives are simply those of the prosecution and defence. Furthermore, both these narratives include the concept that the burden of proof lies with the prosecution. Every aspect of this trial of the American heartland saw a fatal inversion of the constitutional rights of the accused man. In the Avery case, it became clear that prosaic notions of innocent until proven guilty, or the right to a defence, were irrelevant. “The presumption of innocence”, Ken Kratz reassured the jury during his summing up, “is for the innocent man”.

It became clear that those watching the Netflix series found the trial and its outcome an unbearably addictive and compelling real-life drama. Many watched the ten hours’ worth of television in just one or two sittings. The viewer’s growing sense that the trials were inevitably going to result in a guilty verdict – no matter what the evidence – led to a sense of impotent fury. By the time of Avery’s sentencing, and with the comment from the judge that Avery’s crimes showed a worsening trend, it was as if his earlier exoneration was obliterated from the record.

This comment by Judge Willis had its roots in narrative strands employed by the prosecution, echoing some of the most potent elements of the American pioneer myth: the Sheriff in the Wild West town protecting the honest citizens from the outlaw families beyond “civilization”. Kratz exploited this instinctive and embedded fear – encouraging witnesses to suggest that, even if Avery was innocent of the 1985 crime, at least the population had been safer with him in jail. Some prosecution witnesses, under oath, stated they believed Avery was guilty of that earlier crime.

Others – particularly those viewing in 2016 – saw a more modernist narrative: the hopelessly insular and incestuous small town establishment protecting its own; so complacent and so secure, prosecutors barely troubled to observe the formalities. Avery was questioned without a lawyer. Evidence that would have been inadmissible in any other courtroom became central to the case against Avery. Judge Patrick Willis repeatedly overruled the objections of Strang and Buting on points central to the constitutional ideal of a fair trial: prosecution witnesses were introduced without notification; sworn testimony was contradicted under oath.

THE INNOCENT SCAPEGOAT AND HIS HEROIC LAWYERS WAS NOW TRENDING AROUND THE WORLD.

With the exposure resulting from the Netflix series, these new narratives came into play. Overwhelmingly, the viewers questioned not only if Avery’s guilt had been proven, but if Avery was guilty of anything at all. The innocent scapegoat and his heroic lawyers – not a storyline many in Manitowoc ever endorsed – was now trending around the world. Strang and Buting became internet stars – articles, memes, twitter accounts, and even a Tumblr dedicated to Dean Strang’s “normcore” fashion-sense, sprung up overnight. Over 250,000 people signed a petition addressed to the White House requesting a Presidential pardon, something the President did not have the power to grant. American Vogue attributed Strang’s appeal to his “hugely magnanimous spirit and seemingly never-ending reservoirs of empathy”. The two defence lawyers were variously cast as every lawyer-as-hero in American folklore – Atticus Finch being the most frequent comparison.

Yet, the lawyer-as-villain narrative was never very far away either. There are instances of both prosecution and defence negotiating their own fluid definitions of what responsibilities the profession owes its clients. Many were troubled by the behaviour of Brendan Dassey’s original lawyer, Len Kachinsky, whose cartoonish view of the lawyer/client relationship seemed to have sprung from the animated world of the Simpson’s and its deal-making lawyer Lionel Hutz. Whenever Dassey tried to say he was innocent, his own legal team told him he was guilty. When Dassey himself – an intellectually limited 16 year old boy – eventually found the courage to request a new lawyer, the judge refused.

Dassey was left with nobody who wanted to hear anything other than that he would plead guilty. The videotaped interview conducted by Kachinsky’s investigator, Michael O’Kelly, with the teenager, is perhaps the most disturbing piece of footage in the entire documentary. O’Kelly – working for the defence team – email Kachinsky that families like the Averys have to be “cut off at the root”. He is interested only in coercing Dassey into a confession.

Eventually, Kachinsky exhausted the patience of the court and was replaced by other court-appointed lawyers, who allowed Dassey to plead not guilty and to testify on the stand. Although Dassey attempted to explain why he would have confessed to a crime he was now claiming he did not commit, his lawyer’s questioning was incomplete and unprepared. He was found guilty and sentenced to life imprisonment.

In the ten years following the murder trial Avery and Dassey have exhausted the appeals process. In both cases, the first level of appeal was held before the same judge as the original trial. Both are still incarcerated, in Avery’s case with no possibility of parole. In yet another familiar narrative, Avery has become the prisoner seeking justice for himself, now ploughing through dozens of legal boxes without any professional help. In early January 2016 Avery formally requested permission to view Making a Murderer, the series about his life. Permission was refused.

I’M SAD... THAT WE HAVEN’T MASTERED JUSTICE ANY BETTER THAN WE HAVE.

Is it a mistake to view all this as a distinctly American problem? There are obvious factors – the election of Sheriffs, the success rates of District Attorneys and Special Prosecutors – that do not apply in Scotland. Yet many of the disquieting aspects of the Manitowoc case centre around the burden of proof - a topical term in 2016. How secure are the rights we take for granted when league tables of successful prosecutions become weapons in political point scoring? The American constitution is often presented as an exemplary document in delineating the rights of the individual to justice in a free society. However, the law depends for its efficacy upon the integrity and personality of judges, lawyers and law enforcement officers and upon a wider understanding in society that legal principles and rules must be applied faithfully, without distortion, in every case, without exception, to spare the innocent from losing their liberty. The system is always at the mercy of human failings and worse. As Dean Strang said to the press and televison after hearing the jury find Steven Avery guilty of murder: “I’m sad... that we haven’t mastered justice any better than we have.”