Making a Murderer - Steven Avery story

[Berkut]

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".

Reasonably intelligent people confess to things they didn't do all the time because they panic, they're intimidated, they're in shock, etc. How is just throwing up our hands in the air and saying "that's what they get for being stupid" in any way a just response?

Because in this case it wasn't a one off incident. He confessed several different times to different people.

I don't care about this particular case, I'm making a more general argument. The state is more dangerous than any individual, and should be policed more zealously. The rules against accepting coerced testimony should be enforced in all instances.

I suspect we mean different things when we use the term "coerced".

[jimmy olsen]

Okay, what do you mean when you say that you think his confession was "certainly coerced"?

[Berkut]

That they used pressure tactics and aggressive interrogation to get him to confess, rather than him doing so on his own.

[LaCroix]

Okay, what do you mean when you say that you think his confession was "certainly coerced"?

trial and appellate court said no coercion. the way the documentary presents it? maybe

[OttoVonBismarck]

we should have a strong presumption that if someone was convicted by a jury of 12 peers they probably did it, and only extraordinary evidence should lead us to think otherwise.

I'm not sure I would draw that conclusion. Your anecdote doesn't make me think jurors have super truth determining skills.

Super is a dumb way to describe it, though. Jurors have the ability to make a better decision than most observers, even documentary filmmakers, because trials are long and information dense. Like seriously, the 10 episodes of this documentary are shorter than like 2 days of a criminal trial, I think the average murder trial would last a week, maybe two weeks. Some of the complex ones last way longer than that. And I'm only talking about the court proceedings where a jury is physically present, and only talking about their total time in court (not counting breaks between sessions and deliberation time etc.) It's not that jurors are intrinsically super smart, it's that they've lived/breathed a case far far longer than casual observers have.

[The Minsky Moment]

Super is a dumb way to describe it, though. Jurors have the ability to make a better decision than most observers, even documentary filmmakers, because trials are long and information dense.... It's not that jurors are intrinsically super smart, it's that they've lived/breathed a case far far longer than casual observers have.

Yes, but even if jurors are conscientious, their decision making is constrained the record, and the record is the product of an adversarial system.   If the prosecution or investigators are overly zealous, and/or defense counsel is ineffective, jurors will be making a decision on a record that is distorted, misleading, or less than complete.  And jurors, as human beings, are subject to cognitive biases and misleading "common sense" understandings that can lead them to suppress legitimate doubts.

Given that reality, it really is essential for investigators and prosecutors to act professionally in their role as advocates for the public and not simply to notch up convictions.  For the most part they do, but there are definite  exceptions.  And when those exceptions occur, it raises real doubts about the inputs that the jury was relying upon in making its determination.

[The Minsky Moment]

In that case DNA evidence confirmed the conviction, but in 337 other cases, DNA evidence has exonerated the wrongfully convicted.

http://www.innocenceproject.org/free-innocent/improve-the-law/fact-sheets/dna-exonerations-nationwide

The DNA exonerations have really been eye-opening in terms of providing solid proof of how the system can go wrong in individual instances.  What I find interesting about the fact sheet is that the three most common causes of wrongful convictions happen to be areas that researchers have identified as key areas of potential juror cognitive bias: eyewitness testimony, junk forensics, and confessions.

[grumbler]

The DNA exonerations have really been eye-opening in terms of providing solid proof of how the system can go wrong in individual instances.  What I find interesting about the fact sheet is that the three most common causes of wrongful convictions happen to be areas that researchers have identified as key areas of potential juror cognitive bias: eyewitness testimony, junk forensics, and confessions.

I remember an article or op-ed piece written by a DA some years ago in which he argued that eyewitness testimony should not be allowed in criminal trials.  He had some interesting stats and anecdotes, but I can't remember where I read that.  I do remember that it was moderately convincing, but maybe wasn't meant to be entirely serious.

[The Minsky Moment]

Eyewitness testimony involves visual recognition and comparison, and memory/recall.   There is a large body of scientific research that points to high levels of error and bias in those processes.    Exclusion is a non-starter, but there is some movement and discussion on to what extent attorneys can offer expert testimony that points out the fallacies inherent in eyewitness identification.

[Barrister]

Not allowing eyewitness testimony is of course a non-starter.  Not only is it central to our justice system, but most of the time it is unimpeachable.

Often a witness has no problem identifying a suspect because they know exactly who the suspect is.  They're their friend, or relative, or romantic partner.  They've known the person for years, so of course they know and can identify the person.

Allowing expert witnesses to talk about the trouble with witness recollection is problematic on a few different points, but from my vantage point is troublesome from an access to justice perspective.  Experts are hideously expensive.  If you allow expert witnesses to talk about memory and eyewitness identification you're going to allow rich defendants to buy their way our of a case, while most defendants would have no chance of presenting the same kind of evidence.

[Berkut]

In the Avery rape case, it is important to note that the eyewitness testimony that got him convicted was not so much a case of bad eyewitness testimony, but rather active police manipulation of eyewitness testimony. It isn't really a good example of how eyewitness testimony is problematic - it is a great example of how the police willfully manipulating evidence is problematic.

The victim positively IDed Avery *because* the police created the eyewitness testimony for her.

[Barrister]

Okay, so Mrs B really wanted me to watch this show, so I've been working my way through it.  Watched Episode 3 last night.

Still trying not to draw any firm conclusions until I see the entire show (which is actually irking Mrs B - she wants me to be OUTRAGED about this case).

Trouble for me is I am aware of my biases in reviewing a case like this.  For the 1985 conviction I can totally "get" and understand what went wrong - they had a suspect, the suspect was ID'd using a photo line-up, the victim was very credible and very firm in her identification - so why bother looking into alternative suspects?  Were mistakes made?  Sure, absolutely.  But for example some Avery's lawyers were outraged that no one was being charged as a result - I don't see any basis for criminal charges.  Rather what happened was pure negligence (and for which Avery is entitled to recover damages).

The Halbach case though is very different than the rape case.  While there was no physical evidence to connect Avery to the rape at all, there certainly is in the Halbach case - her body was disposed of on his property, he appears to be the last person we know of to see her alive, her vehicle is found on his property.  Defence is seeming to resolve around allegations that this evidence is actually planted by police.

Making mistakes is one thing - actively fabricating evidence is another.  I find it hard to believe those who have dedicated their lives to the criminal justice system would do such a thing.  But I have 7 more episodes to go and I will keep an open mind.

There was one detail that was discussed for about 30 seconds though that I hope they will come back to (but I fear they won't).  One of Avery's lawyers was talking about the civil suit, and mentioned how all the people sued would have had insurance.  Absolutely right! thought I - the odds of any of these individuals personally having to pay out millions of dollars they certainly don't have is incredibly low.  But the lawyer went on to say that the insurance company was trying to deny coverage.

This is where my distant background in insurance defence had my spider-sense go off.  It's easy to say you're going to deny coverage, but incredibly hard to do.  I'd have been more interested to hear whether this was a realistic likelihood or not.

[Brazen]

Totally case-irrelevant observation. The opening credit are like a mashup of GoT and Fargo. Which I suppose reflects the subject matter.

[DGuller]

It's easy to say you're going to deny coverage, but incredibly hard to do.

 

[Berkut]

Okay, so Mrs B really wanted me to watch this show, so I've been working my way through it.  Watched Episode 3 last night.

Still trying not to draw any firm conclusions until I see the entire show (which is actually irking Mrs B - she wants me to be OUTRAGED about this case).

Trouble for me is I am aware of my biases in reviewing a case like this.  For the 1985 conviction I can totally "get" and understand what went wrong - they had a suspect, the suspect was ID'd using a photo line-up, the victim was very credible and very firm in her identification - so why bother looking into alternative suspects? 

Well, I would argue that this is dependent on that ID - and that ID was pretty clearly completely fabricated by the detective tracing the mug shot of Avery, then presenting that to her as if it is what he created from her description.

That is not a "mistake" that is outright manipulation of evidence that the entire case was then based on - she made her ID because she thought he looked just like the picture she thought an expert created from her own description - and of course it did, since he fucking traced his mug shot!

That, if nothing else, should have resulted in criminal charges.

Were mistakes made?  Sure, absolutely.  But for example some Avery's lawyers were outraged that no one was being charged as a result - I don't see any basis for criminal charges.  Rather what happened was pure negligence (and for which Avery is entitled to recover damages).

The city police went to the Sheriff and said "Hey, Avery is not your guy. THIS guy is your guy!". They got a call later from another law enforcement agency as well saying that same guy had admitted to the crime. And of course, that ended up being the person who actually did it.

At some point negligence goes beyond negligence to active, willful refusal to do your job in favor of "getting" your guy. Not only did they send a man to jail for 18 years for something he did not do, they were almost directly responsible for the inevitable additional rapes that the actual rapist then committed later, when even a basic amount of police work and ethical conduct would have seen him in jail years before.

I don't think your "Golly, mistakes were made! He should get compensation!" really covers the level of "negligence" and the damage it caused. JMO, of course.