Making a Murderer - Steven Avery story

[Berkut]

So has anyone else watched this on Netflix?

I really enjoyed Serial season one, and all the controversy and discussion in various places over the relative guilt of Adnan Syed, so I was really looking forward to a similar treatment on Avery.

But after watching it (which is really well done, btw), I am kind of surprised at the popular reaction. People are calling for an investigation into the prosecutors office, demands that Obama just out and out pardon Avery and his nephew, etc., etc.

While I can certainly understand some of the angst over the trial, I am not at all feeling like this was clearly a matter of there being significant doubt about his guilt. The show itself, I thought, went out of its way to make the case that he is innocent, and even then I wasn't really convinced.

Which is interesting, since I think I barely come down on the OTHER side of the fence with Adnan Syed - I suspect there is reasonable doubt (and then some) of his innocence. Which then made me wonder why I evaluate the two cases differently. Is it because they are simply different cases with different evidence? I think that is it. The murder victims body being found behing Avery's house is pretty hard to get past.

Or is it because Syed is just a much more likable guy? Avery is pretty much white trash scumbag, and is that why I don't have nearly as much skepticism of the prosecution in his case as I do for the Baltimore County prosecutors - who I basically think could not care less about process and the law, just about securing a conviction?

Would be interested in hearing other opinions, outside the wailing masses, who have seen one or both.

If you have not watched making a Murderer on Netflix, and find this kind of thing (true crime reporting and the process of the criminal justice system) remotely interesting, I would certainly recommend watching it.

[Caliga]

Princesca is watching this right now and seems to enjoy it.  Not sure what her opinion on Avery is.

[Razgovory]

I watched it, and while I'm not convinced of Avery's innocence I am convinced of Dassey's.  The way the kid's lawyer conspired against him and the way the detectives elicited a confession really bothered me.

[garbon]

I can't get myself to watch it though I loved Serial.

[Berkut]

I watched it, and while I'm not convinced of Avery's innocence I am convinced of Dassey's.  The way the kid's lawyer conspired against him and the way the detectives elicited a confession really bothered me.

Yeah, the entire thing with him was just stomach turning.

The problem though is that he did fucking confess. He clearly said he was involved.

Now, it is possible that he did so for some idiotic reason related to him being a moron.

But how do you ever allow any confession to stand, if you assume that once made it can simply be rescinded by the person confessing claiming they were just being so stunningly stupid that they admitted to doing something they did not?

He clearly and unambiguously states that he was involved.

[The Minsky Moment]

But how do you ever allow any confession to stand, if you assume that once made it can simply be rescinded by the person confessing claiming they were just being so stunningly stupid that they admitted to doing something they did not?

I don't know the particulars that well but I don't think that is the issue.  The question is whether undue or coercive means were used in light of the circumstances, including the fact he was a minor, the aggressiveness of the tactics used, and most troubling the apparent abetting of the confession by his own lawyer in violation of ethical duties.  There is case law that discusses the various factors used by courts to assess the voluntariness of the confession.  The fact that the confessor changes his mind or acted stupidly is not in itself a basis to exclude.

The bigger issue lurking here however is how juries assess and weigh confessions once they are admitted into evidence.  The problem is that juries tend to give them more weight then merited (just as they tend to give "eyewitness" testimony too much weight despite significant problems with reliability).  An unsophisticated suspect (i.e. most) can often be pushed into a confession by an experienced interrogator.  We know (e.g. through DNA exoneration) that false confessions are not uncommon, even in cases where no explicit coercion is used and there is no admissibility question.   If we got to the point where juries were less swayed by the mere fact of a confession, then there wouldn't be so much concern about evidentiary gatekeeping   But we are not there yet. 

[Berkut]

But how do you ever allow any confession to stand, if you assume that once made it can simply be rescinded by the person confessing claiming they were just being so stunningly stupid that they admitted to doing something they did not?

I don't know the particulars that well but I don't think that is the issue.  The question is whether undue or coercive means were used in light of the circumstances, including the fact he was a minor, the aggressiveness of the tactics used, and most troubling the apparent abetting of the confession by his own lawyer in violation of ethical duties.  There is case law that discusses the various factors used by courts to assess the voluntariness of the confession.  The fact that the confessor changes his mind or acted stupidly is not in itself a basis to exclude.

The bigger issue lurking here however is how juries assess and weigh confessions once they are admitted into evidence.  The problem is that juries tend to give them more weight then merited (just as they tend to give "eyewitness" testimony too much weight despite significant problems with reliability).  An unsophisticated suspect (i.e. most) can often be pushed into a confession by an experienced interrogator.  We know (e.g. through DNA exoneration) that false confessions are not uncommon, even in cases where no explicit coercion is used and there is no admissibility question.   If we got to the point where juries were less swayed by the mere fact of a confession, then there wouldn't be so much concern about evidentiary gatekeeping   But we are not there yet. 

OK, that all makes pretty good common sense.

In this case, I think the confession was certainly coerced, but that doesn't make it invalid. If this was a reasonably (average) intelligent adult, I would be fine with it, simply as a matter of "Hey, if you are really so stupid that you admit to raping and murdering a women when you did not...well, shit, that is going to have a bad outcome for you".

Since he is a minor, I would insist that there be reasonable controls in place to make sure that doesn't happen. For example, his interview/interrogation should be done with a parent or lawyer present. That seems pretty obvious.

Problem: In this case, his mother was informed, and the detectives claim she did not want to be in the room during the interrogation, and did not want to get a lawyer either.

Mom (now) claims that she was not allowed in the room, but wanted to be in there - but she does agree that she did give permission for the interview to occur.

How do you handle stupid people making stupid decisions, like not insisting that there be a lawyer present while their child is interrogated about their role in a murder case??? Do you make it a rule that a lawyer MUST be present, regardless of the wishes of the parent or child? Who then pays for that lawyer in the 999 times out of a thousand where it doesn't even really matter?

And of course, had a lawyer been present, it would have been handled radically differently.

So I don't know - I don't know how to create a system that is idiot proof but still reasonable sustainable.

After this particular case, it would seem to me that be reasonable to have a policy where a minor being interrogated must have permission of the parent, has the option of having counsel present, and *if* there is any chance that the result of the interrogation could result in felony proceedings, then a lawyer representing the minor MUST be present? That could result in a case where an interrogation, once it reveals something maybe unknown when it started, might have to be suspended until counsel can be obtained?

[alfred russel]

Back in the day, Greg Maddux, Tom Glavine, John Smoltz, and Steve Avery was a hell of a starting rotation.

[Razgovory]

I watched it, and while I'm not convinced of Avery's innocence I am convinced of Dassey's.  The way the kid's lawyer conspired against him and the way the detectives elicited a confession really bothered me.

Yeah, the entire thing with him was just stomach turning.

The problem though is that he did fucking confess. He clearly said he was involved.

Now, it is possible that he did so for some idiotic reason related to him being a moron.

But how do you ever allow any confession to stand, if you assume that once made it can simply be rescinded by the person confessing claiming they were just being so stunningly stupid that they admitted to doing something they did not?

He clearly and unambiguously states that he was involved.

He confesses because he's moron and easily manipulated.  You could have gotten him to confess to shooting the President if you wanted to.  He was simply guessing as to what detectives wanted him to say.  He honestly thought if he just told them whatever they wanted he'd go home.  You see this kind of thing when law enforcement talk to little kids (or in this case a person who only has the intellect of a little kid).  I didn't see anything that indicated he was involved.  All the relevant facts were brought up by the detectives, not the kid.  The result was a confession that didn't make much sense and contradicted the physical evidence (if the woman was chained to a bed and stabbed and had her throat cut why was there no blood?), and the timeline didn't make sense (he came home from the middle of raping a woman so he could be seen playing video games when his mom came in and then went back to rape and murder when she left?).  There was a reason why the prosecution didn't use the confession directly in Avery's case, it was nonsense.

[OttoVonBismarck]

I've investigated this closely and have a few things to note:

1. The documentary, I believe, has an editorial stance. This editorial stance I don't think is intended to exonerate Avery, but is intended to show "problems" with the jury system and paint the prosecution and police in a negative light. So they've presented a "version of the evidence and events" that is most able to suggest there was reasonable doubt, and that the police perhaps manufactured evidence.

2. Juries have to weigh the full weight of all the evidence presented at trial. Our system doesn't work by just presenting only one version of the evidence, most exculpatory, and then saying "reasonable doubt!" A jury can find individual pieces of evidence unpersuasive, but still feel there is sufficient overall evidence of guilt and vote to convict.

3. Even assuming the show had presented all the evidence (which it didn't, and I'll get into that); remember we have an adversarial legal system. If a defense attorney presents his case and it's ultimately unpersuasive, and the jury decides the prosecutor has proven guilt beyond a reasonable doubt, you don't get a "do over" because a filmmaker has crafted an argument based on the same evidence that is better than the original defense attorneys at trial. You can get a do over for extreme attorney incompetence or procedural errors, or if new evidence is submitted. None of that is really at play here. If the defense attorneys felt the validity of the evidence against Avery was impeachable, it's their job to impeach it. Failure to do so isn't intrinsically grounds for a retrial. O.J.'s attorneys made the argument that an investigator who perjured himself showed bad faith by the LAPD and suggested some of the evidence could've been manufactured. That probably factored into his acquittal--but if they hadn't made that argument and he'd have been convicted, he wouldn't get a do over based on "my attorney could've argued x!"

4. There was substantial evidence presented at trial the documentary left out:

-Teresa Halbach's (victim) camera and palm pilot were found in Avery's burn barrel
-A phone conversation between Dassey and his mother, which was part of the trial evidence, has Dassey clearly confess to being an accessory to the murder. He said he felt he had to help Avery. He also mentions that Avery sexually abused him as a child, something his mother says that she never knew, Dassey said he thought she knew because Avery "touched him" in front of her. (She says she thought it was just rough housing, and never knew it went further.) Dassey also clearly indicates to his mother that Avery did it. Some of this conversation iirc is covered in the documentary, but not the most damning parts.
-On the day Halbach was murdered, Avery called her three times. One time he called her using *67 to conceal his number.
-Avery had previously threatened a female relative at gunpoint
-The bullet found with Halbach's DNA on it was proven to come from Avery's personal firearm, which was known to have regularly hang above his bed
-There is record of Avery purchasing handcuffs and leg irons, similar to the ones Dassey testified Avery used to restrain Halbach during her rape. Avery's defense attorneys argued it was for use in consensual bondage activities with his on-again-off-again girlfriend.
-Dassey said in his confession that in hiding Halbach's RAV4, Avery lifted the RAV4's hood open and removed the battery cable. There was non-blood DNA evidence from Avery on the hood latch of the RAV4. Due to the timeline there is no way that the police could've heard this from Dassey before finding the DNA evidence on the RAV4. This means that if the police framed Avery, they had to know before they framed him that Dassey was going to say in his confession that Avery had touched the hood-latch of the RAV4, which seems highly unlikely to have happened.

5. There is substantial evidence not admissible in court that suggests Avery is a bad guy who would be the type of person to do murder. This has no bearing on the legal case, but maybe should have a bearing on whether you "feel bad" for Avery or not.

-In his past Avery had covered a cat in gasoline and thrown it onto a bonfire just to watch it burn. Not to buy fully into stereotypes but this sort of animal cruelty has some association with people who engage in far worse criminal acts.
-Teresa Halbach was scared to death of Avery. She begged her boss to no longer require her to go meet him for further interviews because he was creepy. Now again, I've already said none of this has legal bearing. But there is an argument made in "The Gift of Fear", a book largely about feelings of unease about certain creepy people, that this intuition is frequently very accurate in indicating we're dealing with a violent or dangerous person, and that you should follow that intuition. Halbach was afraid of Avery, but sadly didn't forcefully enough insist she not be required to see him again. She was specifically afraid of visiting him at his residence, on one trip to his residence he came to her wearing only a towel, and she felt he was making sexual advances to her repeatedly (this was excluded at trial.)

Avery is a bad guy, and you shouldn't feel bad for him.

6. All the fan wank alternate theories of the crime are largely irrelevant. It is the job of defense attorneys to raise alternate theories of the crime, you don't generally get a "do over" because they fail to do so. Again, you get a new trial typically only if there are serious procedural errors, if there is new evidence of significant nature, or if you can demonstrate extreme defense counsel incompetence. I've not seen anything that would meet any of those definitions. Even Avery's defense attorney, his advocate, has said in a recent interview that while the attention for his case is a good thing, nothing will change his legal status without new information. So he's advocating "people come forward."

[OttoVonBismarck]

Also obviously if you had persuasive evidence the police manufactured the physical evidence, new evidence not available during the trial, that would be significant and exculpatory. But if you note all we have are theories about how the police could have manufactured the evidence, that's of little evidentiary value, and I suspect a jury would find conspiracy theories promulgated by the defense with no real substance behind them to be deeply unpersuasive.

I do think Dassey, with his low IQ, history of sexual abuse by Avery, and other factors was done wrong by the legal system. But I'm not convinced it is in a manner that is inconsistent with the law.

[Valmy]

Back in the day, Greg Maddux, Tom Glavine, John Smoltz, and Steve Avery was a hell of a starting rotation.

Yeah I was going to say 'guilty of murdering the Pirate's dynasty maybe!' but thought it would be too obscure a reference

[Berkut]

Yeah, that pretty much sums up rather nicely my own evaluation of the case.

What you certainly CANNOT claim is that Avery did not get excellent representation. I thought both his lawyers where pretty outstanding.

[Berkut]

I do think the documentary went out of its way to portray Dassey's original lawyer badly.

Now, I get that it seemed kind of shitty that his lawyers was REALLY pushing him to take a plea deal. But here is the thing - it turns out he was right. The evidence against Avery was compelling, and sticking to his confession (which I am sure the lawyer knew would be pretty persuasive to a jury even if it was later rescinded) and testifying against Avery was the smart move, in return for a plea deal.

The show makes it seem like his lawyer had no faith in him, but his lawyer is representing a client who had confessed to raping and murdering a young woman in a pretty heinous manner, and where the evidence against the primary perpetrator was pretty overwhelming.

Certainly in hindsight the outcome speaks for itself. Dassey should have stuck to his confession, testified against Avery, and taken a plea deal that would have had him out of prison (if he served at all) in a fraction of the time.

[Berkut]

There was a reason why the prosecution didn't use the confession directly in Avery's case, it was nonsense.

He refused to testify. It is pretty hard to use a confession from someone who isn't willing to actually testify that the confession is real. If you have adequate evidence to secure a conviction otherwise, it would be incredibly foolish to include a confession from someone who the defense can put on the stand and refute it - it makes it then seem like your case *IS* the confession, which is being denied by the person confessing!

While there are problems with the confession, those problems are not why it wasn't used - it wasn't used because Dassey would make a terrible witness, if he wasn't willing to cooperate.