Languish.org

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.

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

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.

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

Quote from: Razgovory on January 05, 2016, 10:55:31 AM
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.

Quote from: Berkut on January 05, 2016, 11:00:51 AM
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. 

Quote from: The Minsky Moment on January 05, 2016, 11:26:27 AM

Quote from: Berkut on January 05, 2016, 11:00:51 AM
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?

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

Quote from: Berkut on January 05, 2016, 11:00:51 AM

Quote from: Razgovory on January 05, 2016, 10:55:31 AM
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.

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."

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.

Quote from: alfred russel on January 05, 2016, 11:37:56 AM
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 :P

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.

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.

Quote from: Razgovory on January 05, 2016, 11:41:53 AM
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.

And yeah, keep in mind Dassey has low IQ and the internet is very dedicated to buying into the documentary version that his "confession is coerced and nonsense" If Dassey had been cooperative with the prosecutors his testimony in court would've been heavily practiced and would've "looked a lot better." That's the reality of  how criminal cases work.

Would it have been fabricated or untrue? That's actually what a jury is for--to determine if they think a witness is giving false testimony.

Like Berk says, there was strong physical evidence against Avery. While it's easy to paint the prosecutor as a "bad guy", not only for this case but for ethical violations he later committed in his career, the reality is he was basically right when he recently said to the media that most of what was used to convict Avery was physical evidence that wasn't really contradicted or even covered by the documentary filmmaker.

If you read interviews with the filmmakers they repeatedly insist they spent ten years of their lives on this and were dedicated to being impartial. But it's hard for me to buy into that based on what they chose to include and not to include, how they chose to present it, and how when they chose to include negative things about Avery they always worked to mitigate it. For example the animal cruelty incident, if you just watch the documentary they make it sound like he accidentally burned his cat. In real life he doused his cat in an accelerant and threw it into a bonfire so he could laugh at it as it burned to death. Again--he shouldn't have been convicted of murder for killing a cat years before, but if the filmmakers were really neutral they wouldn't have chosen to present things the way they did.

Quote from: OttoVonBismarck on January 05, 2016, 11:48:46 AM
I've investigated this closely and have a few things to note:

Yeah, I read the same article you did.  Of course not all the things "they left out" weren't actually left out.  For instance the pointing the gun at a female relative was brought up in the very beginning.

Yeah, one of the defenses that filmmakers made when the prosecutor bitched about the evidence they didn't include was that they didn't have time to cover every single thing at the trial.

I dunno - I think they maybe could have shown me a couple fewer instances of Steve's mom making her lunch and used that time for more evidence coverage...if they really wanted to...

Quote from: Razgovory on January 05, 2016, 12:16:06 PMYeah, I read the same article you did.  Of course not all the things "they left out" weren't actually left out.  For instance the pointing the gun at a female relative was brought up in the very beginning.

Yeah, there's an article going around that summarizes most of the important stuff.

But I'm actually a big "True Crime" guy, always have been. I've been active on WebSleuths for years, and this case was discussed very highly there like 10 years ago. Websleuths often cover cases that later become famous because of documentaries long before hand because they have a lot of people who essentially nerd out of interesting criminal cases. Almost all this stuff is public record, it just requires dedicated people willing to dig into it and share it online, which is a lot of what happens on websleuths.

Quote from: Berkut on January 05, 2016, 12:01:17 PM
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.

And it is quite common that a lawyer strongly recommends a plea deal, and has to overcome client reluctance to do so out of a desire to "prove innocence" or "get his day in court".  Conviction rates are typically high and sentences can be harsh, the cost of a day in court can be very high in terms of later time served.

That said, it was reported that Dassey's lawyer allowed an interrogation proceed without his presence.  If true that is hard to explain and goes beyond mere plain talk to a client to be realistic about prospects.

Quote from: Berkut on January 05, 2016, 12:04:02 PM

Quote from: Razgovory on January 05, 2016, 11:41:53 AM
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.

If you have such a problem with the confession then why use it as the basis for your theory of the crime?  I mean the whole point of the exercise was to find someone to implicate Mr. Avery.  That's what the dectives wanted, that's what the prosecutor wanted and most bizarrely that's what the Dassey's attorney wanted.  I think the prosecutor was well aware that Avery had pretty good defense attorneys, while Dassey had to make do with public defender.

Quote from: Razgovory on January 05, 2016, 12:23:42 PM

Quote from: Berkut on January 05, 2016, 12:04:02 PM

Quote from: Razgovory on January 05, 2016, 11:41:53 AM
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.

If you have such a problem with the confession then why use it as the basis for your theory of the crime? 

I don't think it was - they threw out the charges related to Dassey's testimony.

He wasn't even convicted of rape, for example.

I actually got turned onto crime stories based on a case from the 80s here in Virginia, the Roger Keith Coleman case. I was 100% convinced at the time he was innocent, and that Virginia ultimately executed an innocent man. There's a great book that was written about it in the early 2000s called "May God Have Mercy" at the time I remember reading it and just being super amazed that this man was both convicted, and executed, when it was so clear that prosecution had acted improperly and that important exculpatory evidence was never heard in court.

When Coleman was executed they didn't really have full DNA testing, but they could test the semen found in the victim for blood type. It was a rarer type, and matched Coleman. But blood type isn't a finger print, millions and millions of people share the same blood type (billions for some of the more common types.) That was the one thing in the book that was really negative toward Coleman.

In the mid-2000s, Governor Mark Warner finally ordered that modern DNA testing be done. Based on my following the case closely at the time of his execution in the early 90s, the reading of the book and etc, I was basically convinced that it'd be the first instance in modern legal history in which an executed person was definitively proven to have not been guilty. When the DNA testing came back, instead it showed that Coleman raped the victim and thus it's all but certain her murdered her. He was justly convicted and executed. That was an important experience as a lay person in looking at criminal trials for me, because it kinda showed how easy it is to take a very selective look at evidence and make a trial court look stupid. To be frank I have a lot more respect for the mountains of evidence that juries look at now, and how even a 400 page book is really barely a synopsis of the real proceedings that went on in the court room, and that 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.

Quote from: The Minsky Moment on January 05, 2016, 12:22:56 PM

Quote from: Berkut on January 05, 2016, 12:01:17 PM
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.

And it is quite common that a lawyer strongly recommends a plea deal, and has to overcome client reluctance to do so out of a desire to "prove innocence" or "get his day in court".  Conviction rates are typically high and sentences can be harsh, the cost of a day in court can be very high in terms of later time served.

That said, it was reported that Dassey's lawyer allowed an interrogation proceed without his presence.  If true that is hard to explain and goes beyond mere plain talk to a client to be realistic about prospects.

O.J.'s attorneys allowed the same thing.

Quote from: The Minsky Moment on January 05, 2016, 12:22:56 PM

Quote from: Berkut on January 05, 2016, 12:01:17 PM
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.

And it is quite common that a lawyer strongly recommends a plea deal, and has to overcome client reluctance to do so out of a desire to "prove innocence" or "get his day in court".  Conviction rates are typically high and sentences can be harsh, the cost of a day in court can be very high in terms of later time served.

That said, it was reported that Dassey's lawyer allowed an interrogation proceed without his presence.  If true that is hard to explain and goes beyond mere plain talk to a client to be realistic about prospects.

I thought the more problematic part was the lawyers investigator basically brow beating Dassey into drawing pictures of the crime and such. I mean hell, that was HIS lawyer's representative pretty much acting like a prosecutor!

But yeah, I cannot imagine what possible reason a defense attorney would ever agree to letting his client be interviewed without his presence, especially one as clearly incapable of holding his own as Dassey.

Quote from: OttoVonBismarck on January 05, 2016, 12:28:33 PM
O.J.'s attorneys allowed the same thing.

Very different circumstances.

Quote from: The Minsky Moment on January 05, 2016, 12:22:56 PM

Quote from: Berkut on January 05, 2016, 12:01:17 PM
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.

And it is quite common that a lawyer strongly recommends a plea deal, and has to overcome client reluctance to do so out of a desire to "prove innocence" or "get his day in court".  Conviction rates are typically high and sentences can be harsh, the cost of a day in court can be very high in terms of later time served.

That said, it was reported that Dassey's lawyer allowed an interrogation proceed without his presence.  If true that is hard to explain and goes beyond mere plain talk to a client to be realistic about prospects.

The attorney also perjured himself before the court, and stated that his own client was "morally and legally" responsible on camera before even meeting his client (though after he had been assigned to the case).

Quote from: Berkut on January 05, 2016, 12:26:39 PM

I don't think it was - they threw out the charges related to Dassey's testimony.

He wasn't even convicted of rape, for example.

He wasn't convicted of burning the body either.  Do you remember if at any time during Avery's trial they said or suggest he wasn't acting alone?

Quote from: OttoVonBismarck on January 05, 2016, 11:48:46 AMBut 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.

for example, the DA, ken kratz, has narcissistic personality disorder  :P

@thread: probably guilty. re: dassey. dassey appealed the coerced confession claim and lost. i also didn't buy the experts who discussed his susceptibility on the tail end of the documentary. i believe what they said was true, but that it didn't apply to dassey. there was intelligence there, even if there wasn't much. this wasn't a happy down syndrome on the stand. he took regular school courses and played school sports.

re: documentary's agenda. while it's clear the creators are doing what otto says, the documentary does try its damnedest to show avery as a really freakin' nice guy. the very first episode spends a lot of time on this, and then you have avery's "aw shucks" taped prison comments littered throughout the series. in episode 9(?), the documentary notes that "hours of dassey's interrogation were never shown to the jury, including dassey telling his mother that police 'got to [his] head.'" i had read the wisconsin appellate case before this episode, so i knew about the "got to my head" comment. dassey's attorneys were the ones who chose not to show it, and they did that because the rest of that "got to my head" conversation contained comments that seemed to suggest it was part of an admittance of guilt. so, the documentary creators took it out of context and threw it into the documentary without any explanation. that evidenced what i figured about a lot of the evidence presented in the documentary.

but, despite the bias, i think it's a fun show.

Quote from: OttoVonBismarck on January 05, 2016, 12:27:53 PM
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.

Mrs B was watching this one, and has kept asking me questions related to this.

Problem is I just don't want to dedicate 10 hours to a case that isn't mine.  I have plenty of real cases demanding my attention.

Quote from: Berkut on January 05, 2016, 09:49:25 AM
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.

This can be a real problem, for everyone in the system.

I remember I had a guy in custody.  He was a seriously dangerous dude - paranoid schizo I think (or some other serious MH problem), I'd prosecuted him several times already.  He was charged this time with stabbing someone.  The officer said something about "you know we're not so sure he did this", but I kind of waived them off.  Then they called me again saying "HE DID NOT DO THIS - YOU NEED TO LET HIM OUT OF JAIL", at which point I scrambled to get over to the courthouse.

Unfortunately there is no easy solution, because most of the time you're right - the best predictor of the future is past performance, so suspecting a guy who has done a lot of bad shit of doing some additional piece of bad shit is quite logical - but can lead to wrongful arrests and convictions.

Quote from: Barrister on January 05, 2016, 01:47:25 PM

Quote from: Berkut on January 05, 2016, 09:49:25 AM
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.

This can be a real problem, for everyone in the system.

I remember I had a guy in custody.  He was a seriously dangerous dude - paranoid schizo I think (or some other serious MH problem), I'd prosecuted him several times already.  He was charged this time with stabbing someone.  The officer said something about "you know we're not so sure he did this", but I kind of waived them off.  Then they called me again saying "HE DID NOT DO THIS - YOU NEED TO LET HIM OUT OF JAIL", at which point I scrambled to get over to the courthouse.

Unfortunately there is no easy solution, because most of the time you're right - the best predictor of the future is past performance, so suspecting a guy who has done a lot of bad shit of doing some additional piece of bad shit is quite logical - but can lead to wrongful arrests and convictions.

Well, a big part of the Avery story that is so compelling is his wrongful conviction previously. He served 18 years for a rape he did NOT commit, and there was even a point where the Manitowoc County police had information from the Matiowoc City police that they really, really thought they had the wrong guy, and they thought they should be looking at this OTHER guy who the city guys were keeping an eye on - but the crime happened on county property, not city. And the county basically told them to STFU.

Fast forward a dozen years, and the guy the city had said at the beginning was the likely suspect is now in jail on a couple other rape convictions, and apparently jokes to someone else about a rape he had committed that someone else was serving time for - and THEY call Manitowoc County and say "Hey, we have this guy in jail who said he committed this crime, you should take a look at this". And again, they respond back and say "Nope - we got our guy, thanks!".

Finally, the technology gets to the point where they can do real effective DNA testing, and of course it turns out that not only was Avery not the person, it was the other guy who the city had warned them to look at to being with, and was then heard in jail talking about it.

So Avery served 12 years of a sentence he should not have, then could have been out another six years earlier if they had followed up on the second tip.

If Stephen Avery and Brandon Dassey are guilty are or not is, in my opinion the not the main story.  The main story is the problems with our judicial system.  The police immediately going to local trouble makers or people they just aren't so keen on (Avery's arrest and prosecution on rape was seems to have originated due to antipathy from a cousin who was married to a cop) when a crime is committed.  The unwillingness of cops to admit they were wrong (even after DNA evidence exonerated Avery the cops were unwilling to say they were wrong).  The enormous imbalance between the prosecutor's office and the public defender's office.  The way they elicit confessions.  Prosecutors holding big press conferences and looking for headlines.  The assumption of guilt by a lot of prospective jurors.  The lobbying by the victim's families.  Etc.

Quote from: Berkut on January 05, 2016, 03:23:45 PM
Well, a big part of the Avery story that is so compelling is his wrongful conviction previously. He served 18 years for a rape he did NOT commit, and there was even a point where the Manitowoc County police had information from the Matiowoc City police that they really, really thought they had the wrong guy, and they thought they should be looking at this OTHER guy who the city guys were keeping an eye on - but the crime happened on county property, not city. And the county basically told them to STFU.

Fast forward a dozen years, and the guy the city had said at the beginning was the likely suspect is now in jail on a couple other rape convictions, and apparently jokes to someone else about a rape he had committed that someone else was serving time for - and THEY call Manitowoc County and say "Hey, we have this guy in jail who said he committed this crime, you should take a look at this". And again, they respond back and say "Nope - we got our guy, thanks!".

Finally, the technology gets to the point where they can do real effective DNA testing, and of course it turns out that not only was Avery not the person, it was the other guy who the city had warned them to look at to being with, and was then heard in jail talking about it.

So Avery served 12 years of a sentence he should not have, then could have been out another six years earlier if they had followed up on the second tip.

Well yeah, that's the really confusing part of the story (and remember I haven't seen the show, and am going off of what Mrs B has told me).  It seems to me really easy to get confused between the first rape charge, where he was wrongfully convicted, and then draw parallels and connections between that and the murder charge, when honestly they are very different matters separated by a huge gap in time.

Quote from: garbon on January 05, 2016, 01:32:08 PM

Quote from: OttoVonBismarck on January 05, 2016, 12:27:53 PM
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.

I understand your concerns, but if we're going to have trial by jury, it doesn't make any sense to do anything else but to proceed on the basic assumption that the jury will get it right.

Quote from: dps on January 05, 2016, 05:01:43 PM

Quote from: garbon on January 05, 2016, 01:32:08 PM

Quote from: OttoVonBismarck on January 05, 2016, 12:27:53 PM
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.

I understand your concerns, but if we're going to have trial by jury, it doesn't make any sense to do anything else but to proceed on the basic assumption that the jury will get it right.

I think it is fine to say that most of the time they will get it right or at least at level that makes it better than other options - but that doesn't mean I think you need extraordinary evidence to think otherwise in specific instances.

Quote from: garbon on January 05, 2016, 05:08:53 PM

Quote from: dps on January 05, 2016, 05:01:43 PM

Quote from: garbon on January 05, 2016, 01:32:08 PM

Quote from: OttoVonBismarck on January 05, 2016, 12:27:53 PM
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.

I understand your concerns, but if we're going to have trial by jury, it doesn't make any sense to do anything else but to proceed on the basic assumption that the jury will get it right.

I think it is fine to say that most of the time they will get it right or at least at level that makes it better than other options - but that doesn't mean I think you need extraordinary evidence to think otherwise in specific instances.

It's a fundamental presumption of our justice system - that juries always get it right.  In order to overturn a jury conviction you need to show that the jury came to a conclusion that was impossible given the evidence (a very, very high threshhold), or (more commonly) show that the jury was shown bad or incomplete evidence, or that the instructions to the jury were incorrect.

The reason for this is simple (and kind of scary) - juries give no reasons for their decision.  In fact it's probably impossible for 12 lay people to do so.  So all we get is a one or two word decision - guilty, or not guilty.

If you start to allow judges to second guess juries you pretty much invalidate the entire point of jury trials.

You could feed the data into a computer and have an algorithm.

Quote from: Barrister on January 05, 2016, 05:14:10 PM

Quote from: garbon on January 05, 2016, 05:08:53 PM

Quote from: dps on January 05, 2016, 05:01:43 PM

Quote from: garbon on January 05, 2016, 01:32:08 PM

Quote from: OttoVonBismarck on January 05, 2016, 12:27:53 PM
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.

I understand your concerns, but if we're going to have trial by jury, it doesn't make any sense to do anything else but to proceed on the basic assumption that the jury will get it right.

I think it is fine to say that most of the time they will get it right or at least at level that makes it better than other options - but that doesn't mean I think you need extraordinary evidence to think otherwise in specific instances.

It's a fundamental presumption of our justice system - that juries always get it right.  In order to overturn a jury conviction you need to show that the jury came to a conclusion that was impossible given the evidence (a very, very high threshhold), or (more commonly) show that the jury was shown bad or incomplete evidence, or that the instructions to the jury were incorrect.

The reason for this is simple (and kind of scary) - juries give no reasons for their decision.  In fact it's probably impossible for 12 lay people to do so.  So all we get is a one or two word decision - guilty, or not guilty.

If you start to allow judges to second guess juries you pretty much invalidate the entire point of jury trials.

I don't think I was saying that. I do think though, that for an average person, we don't need to have extraordinary evidence to make it not unreasonable to think that a jury may have gotten in wrong.

Though in fact, the sorts of things you mentioned, don't sound all that extraordinary.

Quote from: Berkut on January 05, 2016, 09:49:25 AM

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.

Obama couldn't pardon him even if he wanted to, he can only pardon people who have been convicted in Federal Court.

They'd need Walker to pardon him, which would never happen.

Quote from: Berkut on January 05, 2016, 11:37:39 AM

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?

Quote from: jimmy olsen on January 05, 2016, 07:05:59 PM

Quote from: Berkut on January 05, 2016, 11:37:39 AM

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.

Quote from: OttoVonBismarck on January 05, 2016, 12:27:53 PM

In the mid-2000s, Governor Mark Warner finally ordered that modern DNA testing be done. Based on my following the case closely at the time of his execution in the early 90s, the reading of the book and etc, I was basically convinced that it'd be the first instance in modern legal history in which an executed person was definitively proven to have not been guilty. When the DNA testing came back, instead it showed that Coleman raped the victim and thus it's all but certain her murdered her. He was justly convicted and executed. That was an important experience as a lay person in looking at criminal trials for me, because it kinda showed how easy it is to take a very selective look at evidence and make a trial court look stupid. To be frank I have a lot more respect for the mountains of evidence that juries look at now, and how even a 400 page book is really barely a synopsis of the real proceedings that went on in the court room, and that 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.

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

Quote from: Berkut on January 05, 2016, 10:52:12 PM

Quote from: jimmy olsen on January 05, 2016, 07:05:59 PM

Quote from: Berkut on January 05, 2016, 11:37:39 AM

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.

Quote from: jimmy olsen on January 05, 2016, 11:14:23 PM

Quote from: Berkut on January 05, 2016, 10:52:12 PM

Quote from: jimmy olsen on January 05, 2016, 07:05:59 PM

Quote from: Berkut on January 05, 2016, 11:37:39 AM

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".

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

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

Quote from: jimmy olsen on January 05, 2016, 11:32:45 PM
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

Quote from: garbon on January 05, 2016, 01:32:08 PM

Quote from: OttoVonBismarck on January 05, 2016, 12:27:53 PM
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.

Quote from: OttoVonBismarck on January 06, 2016, 01:20:42 AM
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.

Quote from: jimmy olsen on January 05, 2016, 11:12:02 PM
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.

Quote from: The Minsky Moment on January 06, 2016, 10:31:49 AM
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.

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.

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.

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.

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.

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

Quote from: Barrister on January 11, 2016, 11:06:19 AM
It's easy to say you're going to deny coverage, but incredibly hard to do.

:yes:  :(

Quote from: Barrister on January 11, 2016, 11:06:19 AM
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.

Quote

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.

Quote from: Barrister on January 11, 2016, 11:06:19 AM
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?

Quote from: Berkut on January 11, 2016, 11:28:24 AM

Quote from: Barrister on January 11, 2016, 11:06:19 AM
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!

Quote

Quote

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".

Quote from: Barrister on January 11, 2016, 11:44:39 AM

Quote from: Berkut on January 11, 2016, 11:28:24 AM

Quote from: Barrister on January 11, 2016, 11:06:19 AM
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.

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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.

Quote from: Barrister on January 11, 2016, 11:06:19 AM
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.

Quote from: Barrister on January 11, 2016, 11:06:19 AM
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.

:lmfao:

Sorry. :blush:

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.

(https://pbs.twimg.com/media/CYfScvDUsAAqP20.jpg:large)

Quote from: garbon on January 05, 2016, 10:57:02 AM
I can't get myself to watch it though I loved Serial.

Same. It would just piss me off.

Quote from: garbon on January 11, 2016, 03:18:09 PM

Quote from: Barrister on January 11, 2016, 11:06:19 AM
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.

:lmfao:

Sorry. :blush:

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

Quote from: Martinus on January 14, 2016, 02:48:15 AM
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.

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

Quote from: Martinus on January 14, 2016, 02:48:15 AM
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.

Quote from: Queequeg on January 14, 2016, 06:13:33 AM
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.

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...

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.

Yeah, I just posted this hear because I know we had talked about the Serial case in this thread, it doesn't have much to do with Avery except in the broadest of strokes.

I think Avery is almost certainly guilty, and deserves to be in jail.

I think Syed is maybe 50% likely to be guilty, and 100% should never have been convicted.

Dassey's conviction was just overturned.

I saw that--and I'll say, I do think Dassey's conviction was always more suspect. He was interrogated, as a minor, without a guardian present. Albeit my memory of the documentary has faded, but I thought his lawyer agreed to the interrogation (the New York Times article I'm reading suggests there was a custodial interrogation that occurred with neither parental or counsel signing off.) Or maybe they did, but he law is that even if counsel signs off on it, it's improper for police to interview a 16 year old without a guardian or counsel present? I dunno.

As I understand it, because Dassey later refused to testify the prosecution chose not to use his interview as evidence since it'd be impossible to use at trial since they couldn't call Dassey to the stand to testify to it, so I don't believe there's anything in the overturning of this conviction that changes anything in regard to Avery's case.