Making a Murderer - Steven Avery story

[Berkut]

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.

Yeah, that was one of the things that I thought was pretty shady "documentary" bullshit. A thin, VERY thin (nearly throw-away) bit to establish motive for the police and two different DA's offices to engage in an active conspiracy, and when you think about it for more than 2 seconds, it simply doesn't hold up.

There was never any chance for those guys to be held personally responsible for that lawsuit. The idea that they would engage in this incredible conspiracy that risks them going to jail in order to save the county insurance company some money is simply idiotic.

And then, IF they were going to engage in such wide spread evidence planting and fabrication, why do so in such a shoddy manner? The entire thing claims that they have access to Halbachs body - so why not splash her blood all over his bedroom? Why not plant it in the garage? Why not make the case a slam dunk? If they are going to put his blood in the car, why not put it on a shovel left by the burn pit?

[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? 

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.

That's not what I got from that first episode.  Defence could show that the police had a picture of Avery available, so maybe he could have looked at it / traced it, but I don't  think it was ever established that he did so.  It seems like speculation to say he sketched the picture - and surely he wouldn't have the chutzpah to frame his sketch comparing it to the mug shot if all he did was trace the mugshot!

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.

City police didn't say "this is you guy", but rather "you should look at this guy".  And absolutely that should have been investigated, and if nothing else that needed to be recorded and disclosed to defence.  But that's why it's called tunnel vision - you have your guy, he's been id'd by the victim - why bother wasting time looking at alternate suspects?  And throw in a side of "country guys think the city guys don't give them any respect so we'll show them".

As for Allen's "confession" - he didn't confess to this crime, he confessed to "a crime" for which someone was still sitting in jail.  Again someone puts a spin on that saying "well Manitowoc is a small place of course they would know he's talking about Avery", but quick googling suggests Manitowoc County has 80,000 people.  I'm pretty sure that there is more than 1 person who received lengthy prison sentences over that time period from Manitowoc.

If I were police I don't know I'd spend much effort on that "confession" (which is different from the earlier call from the city police - that absolutely should have been acted upon).

Finally - does negligence at some point become so outrageous it becomes criminal?  It can, but that's a tough standard.  I don't know Wisconsin law, but in Canadian law in order to prove criminal negligence you must show the accused demonstrated a "wanton or reckless disregard for the lives or safety of other persons".

[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.

That's not what I got from that first episode.  Defence could show that the police had a picture of Avery available, so maybe he could have looked at it / traced it, but I don't  think it was ever established that he did so.  It seems like speculation to say he sketched the picture - and surely he wouldn't have the chutzpah to frame his sketch comparing it to the mug shot if all he did was trace the mugshot!

It might be later in the show - but they take the mugshot, and his "drawing" and place them over each other, and they line up basically perfectly.

There is zero doubt that he traced it.

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.

City police didn't say "this is you guy", but rather "you should look at this guy".  And absolutely that should have been investigated, and if nothing else that needed to be recorded and disclosed to defence.  But that's why it's called tunnel vision - you have your guy, he's been id'd by the victim - why bother wasting time looking at alternate suspects?  And throw in a side of "country guys think the city guys don't give them any respect so we'll show them".

As for Allen's "confession" - he didn't confess to this crime, he confessed to "a crime" for which someone was still sitting in jail.  Again someone puts a spin on that saying "well Manitowoc is a small place of course they would know he's talking about Avery", but quick googling suggests Manitowoc County has 80,000 people.  I'm pretty sure that there is more than 1 person who received lengthy prison sentences over that time period from Manitowoc.

If I were police I don't know I'd spend much effort on that "confession" (which is different from the earlier call from the city police - that absolutely should have been acted upon).

Finally - does negligence at some point become so outrageous it becomes criminal?  It can, but that's a tough standard.  I don't know Wisconsin law, but in Canadian law in order to prove criminal negligence you must show the accused demonstrated a "wanton or reckless disregard for the lives or safety of other persons".

I don't know what Michigan law is either, but I think it is pretty clear that they displayed exactly that standard, and then some.

[Razgovory]

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.

Police in this country have framed people before.  It's also possible that the police planted evidence and Avery murdered this woman.

[garbon]

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.

Sorry.

[Barrister]

Just watched Episode 4.

The statement of the nephew is garbage.  Would never get into evidence in Canada (but we have some crappy laws about youth statements).  even if it does get in though it ought to be given no weight.

The application by the nephew to have his lawyer dismissed was bizarre - never seen such an application denied by a judge.

Not sure what to think about the pin prick in Avery's blood sample from 1985.  Didn't give me any context.  Perhaps more is coming.

[Brazen]

[Martinus]

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

Same. It would just piss me off.

[Martinus]

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.

Sorry.

Yeah, seriously. People who go on to become cops are bullies who flunked high school.

[Admiral Yi]

Yeah, seriously. People who go on to become cops are bullies who flunked high school.

We've had this exact same conversation before, about people in the military.

[Queequeg]

http://www.thedailybeast.com/articles/2016/01/13/making-a-murderer-steven-avery-s-ex-fiancee-claims-behind-closed-doors-he-s-a-monster.html?via=desktop&source=facebook

[grumbler]

Yeah, seriously. People who go on to become cops are bullies who flunked high school.

Yeah, seriously.  And lawyers are the bully-wannabes who didn't have the balls to bully anyone to their face, so just tattled on them in high school.

[Barrister]

http://www.thedailybeast.com/articles/2016/01/13/making-a-murderer-steven-avery-s-ex-fiancee-claims-behind-closed-doors-he-s-a-monster.html?via=desktop&source=facebook

Very interesting.  Not sure what it means, but very interesting.

[Berkut]

So Adnan Syed's conviction has been vacated in a PCR hearing.

It is actually a rather interesting PCr and ruling. There were three claims made by the defence:

1. Inadequate represtnation of counsel based on his lawyer not bringing forth a potential alibi witness, or even contacting that witness that was willing to testify that she saw Adnan in the library at a time when the states case was that he was busy murdering his girlfriend at that exact time. While the judge found the alibi witnesses testimony compelling and convincing, he denied the motion on prejudice. The interesting part of that is the lack of prejudice is based on his assertation that the prosecutions case was so terrible about the timeline that the jury could not have possibly believed them, so a witness blowing said timeline away could not matter.

An interesting way to look at it, I guess...

2. Brady violation - Denied. The state had provided the defense with a copy of the cell hone records that were critical to Syed's conviction as they were used to place his cell phone at the spot where the body was found. They didn't bother to send along the cover sheet for the report which clearly states that the records *cannot* be used to establish a phones location for incoming calls. Which is exactly what they used it for, of course. This was rejected, but I am not sure why. Some kind of procedural rule?

3. In-effective assistance based on his attorney never cross examining the states cell phone expert about the missing cover sheet. But wait you say, in #2 you said they didn't send the fax sheet! It turns out that the defense actually had another cover sheet for another set of phone records that were never actually used in the trial, and that set of records DID have the cover sheet. So the claim here is that his attorney should have cross examined the states expert witness. (Said expert witness, btw, put in a sworn statement to the appeals court saying that he was never shown the cover sheet by the prosecution either, and had he seen it he would never have testified as he did). So apparently his lawyer should have figured out from this completely different set of documents that the relevant set was bullshit, and cross examined the witness who is saying that had he seen the cover sheet he never would have testified to begin with!

This last time was upheld, covinction was vacated, and he is now waiting to see what the state of Maryland will do...

[OttoVonBismarck]

It doesn't seem super relevant to the Avery Case, but FWIW I always thought the evidence against Syed was a lot weaker than the evidence against Avery. Avery was actually convicted based on significant and multiple sources of physical evidence.

The only real "evidence" to suggest he was innocent was:

1. The fact Dassey was "bullied" in an interrogation, which I think has essentially no legal meaning or value.
2. The fact Avery was wrongfully convicted years before, which I think has essentially no legal meaning or value.
3. The fact the doc filmmakers could point out a lot of "shitty things" the local PD/Prosecutors get involved in up in that part of the world. I think that unless they can show specific proof of bad behavior in regard to the specific evidence gathered in this case, then that doesn't matter. Arguing that a police department is "generally corrupt", I think, is a hard case to make to get a jury to ignore multiple pieces of physical evidence, when you can't demonstrate their specific corruption in the case at hand.

In the OJ case they had a super-sympathetic jury (several of whom have recently admitted they voted to acquit OJ as retribution for white society acquitting the officers that beat Rodney King) and a cop that outright perjured himself on the stand and played into the defense's "he was framed" argument. None of that was present in Avery's case, and I don't think a "theory" with virtually no hard evidence that the police "could've framed him" will ever be sufficient to get Avery a new trial. In fact I think that's precisely why his defense attorney said nothing in the documentary would help his client, and the case would need new information to have any hope of setting him free.