This is Part II of a two-part series about two attorneys from the Netflix series Making a Murderer, Mr. Walt Kelly ‘68 and Mr. Dean Strang, visiting Boston College Law School on Wednesday, February 24, 2016. For Part I, please click here.
“It’s O.K. to follow a hunch,” Mr. Dean Strang told the audience of more than 300 students and faculty. “But if you’re shaping every bit of new information around that hunch, and discarding information that doesn’t square away with your hunch or hypothesis, you can wind up with the wrong guy.”
That is the essence of what Mr. Strang and Mr. Jerry Buting argued to the jury during Mr. Steven Avery’s murder trial. Part of their theory of the case, as explained in the Netflix series Making a Murderer, was that the local police acted on a hunch that Mr. Avery killed Teresa Halbach, and may have done everything in their power, including plant evidence, to ensure his conviction.
“The police investigation began with severe bias,” said Mr. Walt Kelly, Class of 1968. “An active, conscious dislike for Steven Avery led to the disaster we know about.”
Mr. Strang relayed that he has received around two or three thousand emails from people around the world since the show aired this past December. He said that hundreds of senders swear by Mr. Avery’s innocence and purport to know who actually committed the murder, presumably based solely on the information presented to them in the show. “This is the very same thinking error!” he warned, that he believes led the police and the jury to arrest, form a case against, and convict Mr. Avery.
Much of the discussion this past Wednesday centered around human flaws in the criminal justice system, and whether we, as humans, are able to create and maintain a truly just system. When asked how we can fix or cope with a system that has human flaws, Mr. Strang responded that “it starts with coming to grips with failure,” and the only way to deal with failure is to own it and move past it. “It’s my failure,” he said, “but I’m not sorry I tried, and I’m going to keep trying.”
If we extend that attitude systematically, we must accept the inevitable flaws and keep working to make it better. “We all want justice,” Mr. Strang said. “Something about being human gives us the credible hope that we will do better tomorrow than we do today.”
One of the obvious flaws in the system, to Mr. Strang, and one that was highlighted in the show, is the role of class. “The criminal justice system subsists on the poor,” he said, before explaining that the main actors in criminal cases, including the defendants and witnesses, are often poor. “We ought to be asking, at a minimum, why?” He also wondered openly whether part of the reason for the show’s popularity is the fact that it’s focused on a white man in a rural town rather than a person of color in a large city; a subject like Mr. Avery may have made viewers more open to the idea of a blatant miscarriage of justice.
A more specific evidentiary question addressed third-party culprit evidence, and why Mr. Strang and Mr. Buting could not present evidence of other potential suspects. Mr. Strang explained that each state has their own rules, and in Wisconsin, in order to introduce such evidence, the defense must prove the motive of the third party culprit. He called it an “asymmetry” that “turns on the character of the victim.”
“If the victim is blameless,” he said, “there is no motive readily available.” But if the victim has a checkered past or was known to have been combative, the defense may be able to prove motive. Mr. Strang believes that “the absence of a victim’s character has nothing to do with whether police had the wrong guy.”
Mr. Kelly left the audience with what he called an “ethical provocation,” which is as follows: Does Wisconsin owe Mr. Avery eighteen years of his life? If so, should his life sentence be reduced by eighteen years? “Think it over,” he said.
While that kind of resolution is not currently being employed, we were left with plenty to think about after the panel. Thank you, Mr. Kelly and Mr. Strang, for sharing your advice and experience with a new generation of lawyers at Boston College Law School.