Making a Murderer - Steven Avery story

[Barrister]

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.

[Barrister]

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.

[Berkut]

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.

[Razgovory]

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.

[Barrister]

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.

[dps]

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.

[garbon]

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.

[Barrister]

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.

[The Brain]

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

[garbon]

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.

[jimmy olsen]

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.

[jimmy olsen]

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?

[Berkut]

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

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

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

[jimmy olsen]

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

[jimmy olsen]

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.