Many doctors don’t like watching TV shows that take place in a hospital or depict the ins and outs of the personal relations and struggles that doctors go through on TV as they may be unrealistic, damaging to the aura that surrounds doctors or that they are damaging to the profession. Many lawyers feel the same way including my dad, George Tragos, the founding member of the law firm I currently work with. I, on the other hand, can’t get enough of these Legal TV shows. I love laughing at the inaccuracies, laughing about some of the comical things that actually do happen when practicing law, and feeling sad about the accurate depiction of many injustices that occur in our judicial system. Because of this love of the legal drama I’ve decided to start a blog breaking down some of the shows, documentaries, and movies I watch that depict the life of a lawyer or follow a legal case.
No legal drama is more current right now than the documentary series Making a Murderer. However, so many articles have been written about the evidence that was left out, the theories of who did it, and the pounding of a fist for someone saying that there is no way that Steven Avery or Brendan Dassey committed these crimes. That’s not what I’m going to talk about in this article, so if you’re looking for a theory of how to get these men you feel are innocent out of prison, you can go ahead and stop reading. Instead, I want to take a look at this documentary from the perspective of a client, an attorney and the judicial system as a whole.
THE CLIENT’S PERSPECTIVE:
Clients want to feel like they are an attorney’s only and most important client. While they obviously realize this is not true, it is also not an unreasonable thing for them to think and feel. And as an attorney, we should want them to feel like our only and most important client, especially for an attorney that practices criminal defense. A criminal defense attorney deals with the life, liberty and pursuit of happiness of each and every one of their clients. When a client is arrested and charged with a crime they are looking at jail time, probation, fines, and the stigma of a criminal record. This can affect their their job prospects, their families, and their freedom. Therefore, it should be every criminal defense attorney’s goal to make their client feel like his or their case is the only and most important case they have.
In Making a Murderer on the other hand, you see that in Steven Avery’s initial case where he was wrongfully convicted and exonerated as well as Brendan Dassey’s case where he was charged and convicted for the murder of Teresa Halbach, that they wanted to, but did not feel like, their attorneys’ only and most important client. Many articles I’ve read about this stated that this is the cruel reality of low income and uneducated citizens because of their inability to afford a private defense attorney. There is some truth to that, as you see when you compare the court appointed lawyers or public defenders in this documentary with the two private attorneys that Steven Avery was able to retain in his case for the Teresa Halbach murder. Dean Strang and Jerome Buting are portrayed as much more capable and much more skilled than any of the court appointed attorneys.
The documentary even made it seem like Steven Avery was their only and most important case, because they were not only doing TV interviews for this case, but they were also traveling and staying in what seemed to be a hotel room or some venue outside of their hometown and outside of their main office. In the documentary you often saw them working at Steven Avery’s house or at some unknown location that was obviously not a law firm. The reason that private defense attorneys can make clients feel this way and sometimes court appointed attorneys or public defenders cannot is not based on the skill of the attorney, but oftentimes based on the workload of that attorney. Private attorneys can pick and choose their cases and are able to spend the time and resources necessary on each case when the time comes for them to buckle down and go all‑in on the case. On the other hand, court appointed attorneys and public defenders sometimes are forced to take more cases than they can handle. Something many people outside the legal community don’t know is that many of the nation’s greatest criminal defense attorneys got their start as a public defender or an attorney that took court appointed cases. Today some of the best criminal defense lawyers I know are public defenders or court appointed lawyers. So again, it is not that these attorneys are incompetent or uneducated, it merely may be that they are a victim of their own circumstances. The client’s perspective in this documentary is that the private defense attorneys do a much better job putting together a defense than any of the public defender or court appointed attorneys.
When I watched this documentary and think about it from a client’s perspective my first thought is in the realm of criminal defense-you get what you pay for. If you listen closely, you’ll hear the settlement amount Steven Avery received, how he spent that money on attorneys, and that their fees were in the neighborhood of $240,000.00 to represent him on this criminal case. In addition to the money, Mr. Strang and Mr. Buting are now traveling the country speaking about this case and have garnered fame and respect based on the work they put in a case that they lost. So again, from a client’s perspective it’s not always about winning and losing, but it’s about having a fair defense and feeling like your case is important. This documentary showed that Steven Avery was provided with a fair and competent defense, whether or not the prosecution and law enforcement action was fair, is another question.
AN ATTORNEY’S PERSPECTIVE:
As an attorney who prides himself on ethics and hard work-two individuals stuck out to me. The first was Ken Kratz who was the Special Prosecutor, District Attorney of Calumet County, Wisconsin who prosecuted the Halbach murder cases. The fact that this man was supposed to be a public servant and an administrator of justice made me. His recitation of Brendan Dassey’s coerced confession in front of the media to taint any semblance of a jury pool that may have been available to Steven Avery and Brendan Dassey is unethical, embarrassing to the profession, and unfortunately true in some cases. On the other hand, especially in our county, the bad apples are greatly outweighed by the great prosecutors that we are lucky to have. My favorite part of the entire documentary, as sad as this sounds, is when Ken Kratz was subjected to the public ridicule of his sexting scandal and his fall from grace. I never like to see someone fail or struggle, but in this case, I believe his injustices caught up with him.
The next individual that made me sick in this documentary was Lee Kachinsky. Mr. Kachinsky, whom I’ve read now is a judge, was more concerned with the media and his fame than he was his client. I’d like to think that it is not a common occurrence for criminal defense attorneys to hire investigators to coerce a second confession from their client. I’ve never heard this happening before in our industry and would like to think that he’s not just a bad apple but he is an orange in the basket full of apples that are criminal defense attorneys. To compare him with the criminal defense attorneys I know would be an injustice, and inaccurate. The fact that he openly spoke about his client confessing and taking a plea deal did not only hurt his client’s case, but it was an embarrassment to the criminal defense attorney community. Again, this has nothing to do with the competence of Lee Kachinsky because of his court appointed status, this is a character issue and not a competence issue. Instead of working on a defense or attacking the prosecution’s case (including a gold mine of coerced statements), he decided to get as much face time in front of the camera as he possibly could. He was way too happy about the sad circumstances surrounding his client and it was a lesson on ethics all on its own.
While this documentary was obviously slanted towards Steven Avery and against the prosecution, these two individuals stuck out to me as despicable.
FROM THE JUDICIAL SYSTEM’S POINT OF VIEW:
Many people think that the confession of Brendan Dassey was coerced, the conviction of Mr. Dassey and Mr. Avery was wrongful, and the judicial system has ruined two men’s lives who did nothing wrong. While I always agree that a criminal conviction and time in prison is a sad event, the judicial system does have checks and balances in place to protect the rights of the citizens. There are many things that a jury, and the general public, did not see that occurred in this trial. There are rules in place that keep certain facts and events from the jury in a trial for reasons that have been litigated, judged, and legislated. Many times a jury will not see photographs because they are too graphic and would be used just to “inflame their passions”, some statements are not allowed in trials because their accuracy cannot be determined, and some evidence is often disallowed because its purpose is to trick or confuse the jury rather than to prove a relevant point. Often times the general public hates that these rules exist. They believe the jury should hear anything and everything that has some connection to a case or a defendant. The problem is, these irrelevant or inflammatory facts can be used to take the jury’s attention away from the law and relevant facts upon which they have to make their decision. Without protections such as these anyone that has ever made a mistake in their past would continue to be convicted of that whether or not it had anything to do with their current situation. Additionally, without proving the accuracy of a statement, self-serving lies would be admitted into evidence from both sides which again, could create an unjust outcome. As much as I disagree with the way these laws are applied at times, it is clear, justice would not be served without them.
Therefore, to think that we know the whole story based on a 10‑hour documentary would be ignorant. Everyone is entitled to their own opinion, obviously, but we will never know everything that occurred and everything that the lawyers, judges and law enforcement officers knew about this case.
Additionally, the fact that this documentary obviously insinuated that these convictions were wrongful, that does not mean that an appellate judge or post-conviction attorney has what is necessary to overturn these convictions. A seemingly coerced confession (which was available at trial) does not mean an appellate judge should overturn a conviction that was the result of many other factors and pieces of evidence. In fact, if such evidence existed, my guess is these cases would be overturned and America as a nation, I’m sure, would rejoice. There are procedures and rules in place that while at times can seem unfair and many of the general public do not like, without them our judicial system would fall apart.
I have to agree that our judicial system is more difficult to navigate for a person that is uneducated and of low socioeconomic status. I think this is a fact, and a problem. However, it does not change the current rules in place, and it does not mean that every uneducated and low socioeconomic convict is innocent or was not provided a fair defense.
P.S. MY THOUGHT ON WHETHER THE CONVICTION WAS WRONGFUL:
I couldn’t help myself, I have to put my 2 cents in on what I think about whether or not this conviction was wrongful. After viewing a small part of the evidence and facts in this case (the entire documentary from beginning to end, in addition to numerous articles written about what was left out) my gut tells me that Steven Avery had something to do with the murder of Teresa Halbach. However, as the rules in criminal courts in our nation stand, I do not believe the prosecution held its burden in proving Mr. Avery and Mr. Dassey’s guilt beyond a reasonable doubt. Therefore, if I were on the jury my vote would have been for not guilty. Again just because my gut tells me that Mr. Avery is not innocent, does not mean that the prosecution proved his guilt. If we as citizens do not abide by the rules and laws of our land, it opens up avenues for innocent people to go to prison. I stand with Ben Franklin when he said “that it is better 100 guilty Persons should escape than that one innocent person should suffer”.
Brendan Dassey on the other hand, I do not see how there was enough evidence to charge him with this crime, let alone convict him of it. The coerced confession was a sad reality of what law enforcement officers who don’t play by the rules can do to an uneducated and impressionable individual. His conviction was the toughest for me to watch. Again, I would like to believe in our judicial system and believe that there was a lot more evidence than we were able to see in the documentary, because based on what I saw, I just don’t get it.