What Does ‘Making A Murderer’ Reveal About The American Justice System?

Making A Murderer became a national obsession over the past month, a hit with true crime junkies (guilty) and all-purpose couch potatoes (also guilty) alike. In the aftermath, armchair detective work and the argument over what Steven Avery did or didn’t do became a frequent topic of conversation. But whatever you think about the case, and no matter whose almost equally improbable version you believe, the show raises an even bigger, scarier question: Is this really how the criminal justice system works?

While watching the show was alternately shocking and infuriating to people like me, who don’t spend much time in court (knock on wood), I wondered what the same experience was like for people who do. Speaking to Charles Dresow a high-profile defense attorney in Marin County, and (separately) to Michael F. Hellmann, a deputy public defender in Solano County, to get a few perspectives on it, I tried to have one of those conversations about the justice system Laura Ricciardi and Moira Demos claim they were trying to start.

As long as we’re going to play armchair detectives and Monday morning lawyers, I figure we might as well have some professional supervision.

Whither Len Kachinsky?

Brendan Dassey’s memorable, Alfred E. Neuman clone of a lawyer — at least as the show depicts him — told the press that Dassey (Steven Avery’s nephew) had basically participated in the crime, but only under the influence of “evil incarnate” (in the form of Avery). And this was before he’d even met with his client. Which, frankly, seems like less than effective lawyering. Of all the show’s implications, the possibility that someone falsely-accused and ill-equipped to make intelligent legal decisions would end up with a ventriloquist’s dummy for a lawyer might be the scariest. Are there lots of Len Kachinskies out there?

Hellmann: No one likes public defenders. No one. I’m used to it at this point. It is kind of unfair. [Here I assured Hellmann that people probably weren’t lumping Kachinsky in with all public defenders. -ed.]  I think [Kachinsky] is an anomaly. I’ve never heard of someone trying to actively incriminate their clients. That was really rather horrifying. In most cases I think you’re actually better off going with the public defender. I have to say, it’s like anything, there are good public defenders and bad public defenders. The good public defenders, they really know the judges they’re in front of and the prosecutors they work with, so they know all their idiosyncrasies and really what’s going to piss them off. A lot of times, you can actually get a better result if you stick with the public defender.

Dresow: It’s hard to comprehend what Brendan Dassey’s first lawyer did. Absolutely unbelievable. It’s hard to watch. The real tragedy is if you read enough appellate opinions affirming convictions you see that this type of so-called lawyering is all too common. The media angle of it is fascinating too. Most of these cases happen in front of empty courtrooms.

Hellmann: I think [Kachinsky] was a court-appointed private attorney, and there’s a difference between [that and a public defender]. Most counties, in California at least, have a public defender’s office, it’s run by the county, and all the people who work there are county employees. What the court can do if there isn’t a public defender’s office in that county, they can go to the local bar association or they can have a contract with certain private attorneys in the area to take court-appointed cases. And that is usually the worst system you can imagine. There was actually an appellate case about that recently. It was arguing that because [court-appointed private attorneys] are only paid a certain amount per case, that there’s actually a disincentive to do any work.

Len Kachinsky explained how he came to be involved in the case in episode three, in one of the show’s more memorable interviews:

I just came in third in a primary for judge here in Winnebago County, it was kind of a bruising experience, as politics can be. And I got the call from the public defender’s office about 10 days after the primary to represent Mr. Dassey.

My basic takeaway here: If you’re ever in a position to need a court-appointed lawyer, be aware of whether you’re getting a professional public defender or a guy who came in third in a primary.

Did Avery’s Attorneys Play Too Nice?

Another question I had coming out of Making a Murderer was about something Avery’s lawyer Dean Strang says in his closing statement: “If and when police officers frame evidence, they are not doing it to frame an innocent man. They’re doing it because they believe the man guilty. They’re not doing it to frame an innocent man. They’re doing it to ensure the conviction of someone they’ve decided is guilty.”

Which, despite Strang’s otherwise stellar work, seems like an unnecessarily nuanced point to try to sell to a jury. It’s almost like he’s bending over backwards to give demonstrably negligent police work the presumption of good intentions. It seemed true, but unnecessarily complicated, and at the very least, we know it confused Donnie Wahlberg. Did they play too nice?

Dresow: Trials are a morality play. There good guys and bad guys. Most jurors come into a trial wanting to believe the law enforcement officers involved are the white hats. If it’s a law enforcement misconduct-type case, you have to work very hard to get the jury to set aside the notion that the law enforcement officers are the good guys and are cloaked with some extra type of credibility just because of their job. [That line] seemed to be an effort to give the jury a motive for the long-time law enforcement officers  involved to have done the terrible things necessary to convict an innocent man. It’s a nuanced but necessary argument.

Hellmann: That was a difficult case. I kind of think that was their only option. I don’t think they played too nice at all. I thought they did the best they could do under the circumstances. They may have come off as sort of soft-spoken, but to be effective in court, it’s not just what a jury sees or what a camera sees. It’s all the motions, the legal arguments, the pretrial motions… A lot of people expect that to be effective, you’re going to bang your hands on the table, and you’re going to throw books or whatever, but that’s just not how it is. Some of the most effective defense attorneys I know are incredibly soft spoken, and it works really well for them.

Putting the Defendant on the Stand

Steven Avery didn’t testify at his trial, while Brendan Dassey later testified in his. One of the most convincing parts of the show is Avery himself, who, unlike Dassey (again, at least the way it was depicted on the show) never seemed to change his story. He acted the way we traditionally expect the falsely accused to act — adamant, and sort of pissed off. Wouldn’t that have been good for a jury to see?

Dresow: The major drawbacks to having a client testify include the ability of the prosecution to use evidence that was [previously disallowed] as impeachment evidence during their cross examination. For instance in a resisting arrest trial a defendant might have prior convictions for resisting arrest. A judge might disallow the prosecutor from introducing evidence of the priors during their initial case, but rule that if the defendant testifies, the prosecution can bring in proof of the priors to impeach the defendant’s credibility. If Steven Avery had prior convictions or incidents involving aggression towards women he might have not taken the stand to avoid evidence of the prior conduct from being admitted to impeach him.

Knowing what we do now about Avery’s ex Jodi Stachowski’s allegations of a pattern of aggression toward women (the most damning of anything that’s come out, in my mind), this sounds like it may have been a consideration.

Dresow: A defendant’s testimony creates an all-or-nothing moment. You can either win or lose your case depending on how the testimony goes. The Constitution provides an absolute privilege not to testify and the jury is instructed not to consider the lack of testimony for any purpose. However most jurors do want to hear an innocent person take the stand and proclaim their innocence. I tend to have my clients testify more than other attorneys because I like to be able to tell the jury during opening that my client will take the stand and tell their side of it.

The Science of False Confessions

In the West Memphis Three case and now Making a Murderer, both convictions relied heavily on coerced, or at least leading, confessions from defendants of below average intelligence. I wanted to know how common it is, and whether anything is changing about the way police handle interrogations.

Hellmann: When you get into the science of false confessions, like the cops will say, “If you admit it, things will be less bad for you.” Of course it’s completely the opposite. When there’s a confession, the bail is going to be higher, the charges are more serious, and the case is going to be stronger from the DA’s point of view. So no, I think it hasn’t changed. The only thing that’s slightly better now is that they record them. So it’s possible for someone that’s an expert, that has a psychological background and research training, you can call them as an expert to point out what’s wrong with the interview. It’s been like this since the Reid technique was developed in Chicago, so it’s been a couple decades now.

I’d never heard of the Reid Technique, so I asked a San Francisco police officer who has been involved in interrogations about it. “That ‘We know you’re guilty, just tell us what you know, make this easy for yourself’ stuff?’ We don’t really use that,” he told me. “In movies and TV you see that used all the time, sort of as a Hail Mary pass. We don’t really use that, that’s going to be the first thing that the defense attorney challenges. Now, I’ve used things akin to that, like little ruses. Like saying ‘I have hours and hours of video of you talking to this person’ when I don’t. We use the video thing all the time. Or ‘We already know you did it, if you want to get ahead of this, give us your side of the story.’ But actually, that works a lot less than you’d think.”

Dresow: Police interrogation technique has gotten more sophisticated and focused on working towards a given conclusion, which is problematic when the police have decided that a certain individual is guilty and needs to confess. The goal of interrogation is to get a confession and the conduct of the interrogator can easily taint the responses of an intellectually or emotionally challenged individual.

My cop friend tells me, “I can attest that there are many techniques to interrogation that I as a moral person feel are unethical. Do they get employed to the point that people think they do? No. Are we trying to walk people into a false confession? That hasn’t been my experience. Is it slightly unethical to use a ruse? There are times and places where that’s unethical. But there are times an places where I have a really, really, good hunch about something, and it’s the only way is to get him to admit it. Investigations get bungled all the time, but the arresting-the-wrong-guy phenomenon… it’s very, very rare, in my opinion. It happens a lot less than people think it does.”

I tend to believe both parties here. As an attorney, you want to keep your client from incriminating themselves, and for a cop, getting a guilty person to act against their better judgment is a necessary part of the job.

My police source offers another anecdote:

In one case, we arrested these two kids who were out on [redacted] street with guns. It was a gun arrest. We were trying to show that they weren’t just standing there, that they were actually trying to rob people. One kid just turned 18, the other was 25. [The second] was a little older and had been through the system, so we knew he probably wasn’t going to talk. So we talked to the younger one, and it was kind of like ‘If you guys are out there robbing, we understand, we just want to make sure you weren’t killing people.’ And he was like, ‘Well, yeah, were just trying to get some money.’ When, of course, that’s all we really thought they were doing in the first place.

I imagine most people would consider that an acceptable strategy. The difficulty is trying to find the line between a criminal dumb enough to implicate themselves, and a suspect mentally impaired enough that they’re liable to confess to something they didn’t do. Dassey, it seemed, fell pretty clearly into the latter camp. Which led me to my next question…

If Brendan Dassey Couldn’t Get An Appeal, Who Can?

Even with hours of tape of a clearly leading confession, and an attorney that told the press his client was guilty before even meeting with him, Brendan Dassey couldn’t win an appeal. Is it really that hard?

Hellmann: I don’t know exactly how it works in Wisconsin, but in California, you have the right to an appeal. But it’s very deferential to the lower court’s decision. And it really takes very glaring and egregious errors for an appeals court to take any corrective action. It’s very, very hard to win something on appeal. It does happen, but it’s very few and far between. The thing is, judges are elected officials, and I think it’s slightly unfortunate, because they have to stand for public elections. All it takes is one case, you know, “This judge let a murderer walk free!” That’s their opponent’s next campaign slogan. I do think the majority of judges tend to be quite conservative, their rulings tend to favor the prosecution.

Dresow: The appointment of the first lawyer for Brendan was a failure of our criminal justice system. The irrevocable damage done to his client through his actions was impossible to reverse by the second set of attorneys.

How Can It Be Better?

It’s easy to point out things wrong with the criminal justice system. A jury is essentially a focus group, which I find terrifying, but it’s still the best we’ve got. Still, there must be things we can do better, right? I asked the lawyers if they could change one thing what it would be.

Hellmann: Just one?

Dresow: Ensure equal access to justice by properly funding indigent defense. Indigent defense attorneys must be given the resources, training, and support necessary to properly represent their clients against the full weight of governmental accusations. The heartbreaking truth is that many wrongful convictions are at least partly the result of representation by under-trained, unfunded, and overworked attorneys who weren’t equipped to stop or object to governmental misconduct or incompetent evidence.

Hellmann: Maybe not having judges elected. And the reason I say that is that if a judge wasn’t elected, they wouldn’t have the threat of having to go in front of voters with people saying “You ruled this way and let this guy walk free,” when maybe it was because it was a violation of his constitutional rights. That could be a place to start.

I hope something good can eventually come out of this series, because it feels pretty depressing at this point. It certainly doesn’t offer much in the way of closure, which has led a lot of people to try to find it after the fact, which maybe will turn out to be a good thing? The trouble with the justice system seems to grow out of the same root dilemma as almost all political disagreements: How much help does society owe people who can’t help themselves?

Now Watch: Leave It To The Internet: Web Detectives Find New Evidence In Steve Avery Case

Vince Mancini is a writer and comedian living in San Francisco. A graduate of Columbia’s non-fiction MFA program, his work has appeared on FilmDrunk, the UPROXX network, the Portland Mercury, the East Bay Express, and all over his mom’s refrigerator. Fan FilmDrunk on Facebook, find the latest movie reviews here.