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Making a Lawyer

Making a LawyerAmerica is captivated right now with the Netflix documentary “Making a Murderer.” However, for many of us this documentary not only makes us cringe at the evidence presented in the case, but some of the lawyers presented in the case make us upset as well.

So spoiler warning readers, if you haven’t seen “Making a Murderer” yet, proceed at your own peril.

The Civil Lawsuit

I’d like to take a moment to discuss the civil lawsuit that Stephen Avery instituted at the beginning of the show. Due to his unlawful incarceration once he was cleared from the previous crime of sexual assault, Mr. Avery sued Manitowoc County for damages he suffered due to this. I thought it was great that the documentary started off this way, showing a way that the justice system, after previously failing Mr. Avery, could in turn provide him the civil justice he deserved. Unfortunately, as you later learn, due to a new criminal charge of murder that Mr. Avery faces for the entirety of the remaining documentary, he had to settle his civil lawsuit for much less then he probably could have received in order to have the money he needed for this murder defense. Had he been able to postpone the settlement long enough to have his day in court on this civil suit for damages, he might have received a higher settlement.

Also mentioned during the documentary, is that as part of that civil settlement no one was ever really held responsible for what happened to Stephen, which is a shame given what the justice system can do for those who have been wronged. However, by settling the lawsuit Mr. Avery then had money for what amounted to a pretty great defense team for the murder charges brought against him.

Differing Lawyers

The documentary then turns to Stephen Avery’s second criminal case and his nephew, Brendan Dassey’s, criminal case. Their cases play out very differently, and sadly, at sometimes shamefully, for differing reasons.

Firstly, you see that Stephen is able to hire his own defense team; Brendan is unable to do so. Wisconsin does have a public defender system located in each county. However, it also has private attorneys who take on court appointed cases, and it was a court appointed attorney who represented Brendan. And in his case it’s a shame.

One of the most aggravating things to me in the entire documentary is watching Brendan interrogated by the police again, this time without his lawyer being present. Why, you ask? Well it’s presented in the documentary that his lawyer thinks he’s guilty. For this reason, he’s been pushing for a plea deal the entire time. Regardless of this, his lawyer has a legal obligation to be with him whenever the police talk to him. In fact, when the judge finds out about this, the lawyer, Len Kachinsky, is removed from the case. Unfortunately the damage has already been done, and it’s shameful. This lawyer as presented in the documentary for one, shouldn’t be taking criminal appointments, and two, really shouldn’t be practicing law at all. Stephen at least fairs better when it comes to his representation, presumably because he had a paid lawyer. However, I really hope that’s not the reason.

But there are not just defense lawyers in this documentary, there’s also the prosecution. The prosecutor at one point during the trial is questioning a witness regarding a statement made by Mr. Avery to a friend (not the witness). The prosecutor provides the date in his line of questioning, and the witness testifies to that date provided. All written reports provided to all sides, and the media, has a different date for this conversation (7 days later in fact), which is crucial to the timeline of the murder. The defense asks for a mistrial because of this, which is not granted. The media then questions whether this is in fact prosecutorial misconduct, to withhold this information if it was true, or to basically lead the witness into testifying to something that is not true to build your story line.

The defense lawyers’ investigator nicely states at one point in the documentary that the prosecutor’s goal should be to seek the truth, not to purely seek a conviction. In fact, that is something to which all prosecutors should aspire. The criminal justice system is designed to ensure that all people’s rights are maintained and that justice is served by convicting the guilty. Was justice served here? I seriously doubt that, regardless of who perpetrated the crime. Apparently, as the prosecutor states in his closing argument, “reasonable doubts are for innocent people.”

Post-Conviction Motions

I find the last bit of the documentary of post-convictions interesting as well, in particular Mr. Dassey’s case. Brendan is able to get lawyers who specialize in post-conviction relief, and their argument that Brendan should get a new trial is based on the argument that his lawyer, Len Kachinsky, violated his duty of loyalty to his client.

I think it’s so important to note how integral this duty is, whether a criminal or civil case. As attorneys we are here to serve our clients to the very best that we can. Of course a lawyer could advise his or her client that it is in his or her best interest to take a plea deal as the best result for him or her in view of the evidence presented. It is a violation of this duty if the defense attorney coerces a client into a plea in order to quickly resolve a case. Although it is in the client’s best interest to give great weight to the advice of a caring and experienced attorney, the attorney must in the end respect the wishes of his client as to the acceptance or rejection of a plea offer.

The important point I want to stress is how crucial it is to make sure you have good communication with your lawyer. The back and forth dialogue with your attorney will help ensure that you know what is going on with your case, and it helps to instill a sense of confidence in your attorney.

For more, you can read an interesting op-ed in the NY Times from a law professor at Duke University regarding “Making a Murderer.” She comments on how the U.S. criminal justice system needs reform now, or the narrative we are seeing will continue. That means focusing on “fewer guilt-assuming interrogation tactics, more disclosure of potentially exculpatory information to the defense, expanded oversight units within prosecutors’ offices to investigate potential miscarriages of justice, and fuller appellate scrutiny of convictions.” It is time to think about this and to realize that the criminal justice system is so essential to our American way of life.

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