In 2003, after 18 years in prison, Steven Avery was freed and exonerated of a 1985 rape conviction. Two-and-a-half years later—in the midst of a $36 million lawsuit that Avery had brought against the Manitowoc County Sheriff’s Department—he was arrested for the murder of Teresa Halbach, as was his nephew Brendan Dassey. When Netflix dropped Making A Murderer, the 10-part documentary series about the two cases, in December 2015, it created some unlikely villains and heroes, and it’s not always clear where that line falls. Maybe Avery was guilty, or maybe he was set up by a vengeful sheriff’s department. Maybe Dassey’s interrogation by police was manipulative and unfair, but maybe jurors also acted beyond the bounds of courtroom evidence to convict him. The speculation on both cases, which runs rampant everywhere from Reddit to water-cooler conversations, has given both cases an unusual amount of attention. Dean Strang and Jerry Buting, Avery’s attorneys during his trial for Halbach’s murder, spoke to The A.V. Club about whether this case has rattled their faith in the U.S justice system and how they’re trying to use their newfound fame—more than a decade after the initial trial—to create lasting change. The two lawyers are currently on A Conversation On Justice tour across the U.S.
The A.V. Club: Can you give us a brief update on where the Steven Avery and Brendan Dassey appeals stand right now?
Dean Strang: [Brendan Dassey] is waiting in federal district court in Milwaukee on a federal habeas petition, so it’s at the trial level in federal court. Steven Avery is done with his appeal and his opportunity in federal court ends, so the current effort for him by Kathleen Zellner and others working with her would be to gather potential newly discovered evidence to support a motion for a new trial, and that would go back to the original trial court.
AVC: One of the jurors, Richard Mahler [the juror from Making A Murderer who was excused], came forward in January to say that there was vote trading going on in the jury room, and that some jurors had voted to convict because they were afraid for their own safety. Does that kind of thing amount to juror misconduct? Or is new evidence the only hope for Steven Avery?
Jerry Buting: There are limited opportunities to challenge a jury verdict based on jury misconduct. I’m not going to comment legally on whether the specific facts might be enough in this case. That’s something that I’m sure his new attorney will be exploring. There’s also an interview of other jurors that was done by In Touch Weekly magazine in which one of the jurors basically admitted that the reason she convicted was because of information that never even came into the trial. The claim—supposedly—that Brendan Dassey confession describing this bloody murder and torture—none of which came into the Avery trial. So that may be another angle that’s explored. Now whether any of those are sufficient to get a new trial on those grounds alone, we’ll have to wait and see.
AVC: How would a jury get access to that information?
JB: That information was broadcast on their nightly news every day for 10 months, based on the press conference that the special prosecutor had back in March, right when Brendan Dassey was arrested, and he gave this graphic description that was totally unsupported by the evidence.
AVC: Okay, so this is before the jury selection.
DS: The prosecutor gave a press conference 10 months before the Avery trial began and laid out all of these details that the jurors later was describing. None of that was actually evidence at the trial.
AVC: Dean, you’ve talked a little bit in other interviews about how you have a tempered faith in the justice system, not a blind faith. Given the outcomes of Making A Murderer—and things like the first season of the Serial podcast—do you think that trial by a jury of your peers is a failure?
DS: You can’t say that as a blanket matter. What you can say is that juries get it right in some cases and they get it wrong in other cases. Trial by jury is just like every other human endeavor: Sometimes it works and sometimes it doesn’t, and it depends enormously on the happenstance of who you have on the jury and how committed they are to doing their duty faithfully.
AVC: Have you listened to the Serial podcast?
JB: I started listening to it recently and it’s very good, but I haven’t finished it.
AVC: In both Serial and Making A Murderer, the truth can really seem secondary. Somebody has in mind that it has to be these circumstances or it has to be this person, and you start gathering evidence geared toward that, and even as evidence starts to pile up—nobody’s really motivated to change course. Have you seen instances where prosecutors are motivated to change course? I know you can’t comment specifically on this case—
JB: By “motivated to change course,” you mean that it’s in the middle of a trial, or even on appeal, when some new evidence comes forward—and are the willing to back away from that?
AVC: Even before that. Even preparing their case—it just seems that prosecutors follow a single path, which may or may not be the same as following the truth.
JB: Well, that’s probably true. By the time that a prosecutor decides to issue a charge, they’re kind of in that theory of prosecution. And then they can put on blinders to anything that tends to point away from that theory. A good prosecutor, though, should be open to hearing the defense side. Very often what happens is that the police issue reports and give them to the prosecutor, the prosecutor decides whether or not to charge, based upon that kind of one-sided investigation, and only later does the defense get to present the other side and perhaps other witnesses that the police overlooked. A good prosecutor who’s seeking justice should be willing to sit down and consider that, and if necessary, change course. But not all of them are willing to do that.
DS: Well, and it’s hard to do. It’s hard to do for human beings. We aim our beliefs to the early information we get about something—behavioral psychologists have a word for that, anchoring bias—and also, the further we get into pursuing a given belief, the more we seek information to confirm the correctness of that belief. And that’s just human beings generally. Think about how many people in this world have gotten engaged to somebody in a flood of emotion and joy, and by the time they’re actually at the church getting married, they figured out they’re marrying the wrong person, or at least suspect that they’re marrying the wrong person, and not many of them walk away from the altar. This is just human nature: that we invest heavily in our conclusions that often are really rooted in some very fragmentary initial information that causes us to draw pretty fixed conclusions. And those are very hard to abandon later.
JB: Which can be very problematic if the prospective jurors come into the trial with those same kinds of biases, based on incomplete—or sometimes downright false—pre-trial information that they may have acquired. So it’s not enough for a judge to robotically get the jurors to say, “Well yeah, I can set aside those opinions if you tell me I need to follow the instructions.” You need to probe those jurors carefully and really get them to honestly take another look at their own feelings and say, “Would you really want yourself as a juror if your son or husband was accused of something like this?” It’s a challenge, because it’s something that judges and prosecutors and defense attorneys need to be aware of so that they can try to give the defendant the true presumption of innocence, and hold the state to a burden or proof beyond a reasonable doubt.
AVC: Do you think that the only way of drawing attention to a case like this, that reveals these cracks in the criminal justice system, is to make it a kind of entertainment?
DS: To draw broad public attention to anything, you have to find some time in people’s lives where they’re not preoccupied with getting their kids off to school or a deadline at work or a list of chores. So in that sense, you can only reach people on issues that don’t directly intersect with their daily lives when they have some leisure. So if you define entertainment very, very broadly—to talking to people when they are at leisure or not otherwise occupied with the imperatives of their own lives—yes. That’s why presidential debates—although most of us don’t think of those as entertainment; many of us think of them as torture—that’s why they’re at 7 o’clock at night, not at 2 o’clock in the afternoon, right?
DS: It’s when people are available to engage with that. That doesn’t—there’s a narrower meaning of entertainment that’s different and that I don’t think two lawyers having a conversation about broad issues of criminal justice would fall into that narrower category of entertainment. We aren’t a stand-up comedy routine, we’re not a rock band, we’re not a meal out at a nice restaurant. Not only do you have to have some available time, but you have to have some basic interest in broader serious issues of criminal justice to listen to Jerry Buting and Dean Strang talk about that for an hour and a half.
AVC: You watch something like Making A Murderer and get so worked up about the specifics, but as soon as you Google “exonerations,” you realize this is a much, much bigger issue. Do you think that the Avery and Dassey cases are emblematic of these larger problems with the criminal justice system?
DS: “Emblematic” was exactly the word I was going to use. Steven Avery’s case, of course, has a very, very unusual set of historical circumstances to it, but Brendan Dassey’s case is utterly common. The experience of a developmentally delayed young person, mismatched against the police and very manipulative police interviews—that gets repeated in hundreds, if not thousands, of cities all across America every day. So “emblematic” is exactly what it is, and I think smart viewers of this film may be interested in the emblem, but also understand that as a signal of a whole array of broader issues that also ought to interest them.
AVC: What do you hope to accomplish on this tour, and what do you think you can actually accomplish?
JB: To start the conversation—it’s not going to begin and end in 90 minutes. But to the extent that people are willing and interested in looking at those broader issues and then go back to their own communities and talk to their families, and talk to their friends, and then they do likewise, and then you spread the word and when people understand that this is not the kind of system they want or are willing to accept, even. Then you have a chance to make some real change. And that’s what we’re hoping to do, is to start a grassroots groundswell type of a movement that some people have already shown an interest in doing—you know, there’s 500,000 people signing a petition to Obama asking for a pardon. That wasn’t the right mechanism to achieve what they hoped. But it shows that people want to do something. We have a lot of other ideas, so we’re hopeful that something more long-term can come out of the miscarriage of justice that we experienced in this case.
DS: Let me draw an analogy to two guys who are more familiar, much more popular than we are, but in many ways, just as unlikely: Neil DeGrasse Tyson and Bill Nye. A physicist and another scientist, and both are drawing huge audiences all over the country and probably the world, and when they go out and talk—I suspect if you ask either one of them, they don’t expect that they will have left a theater having measurably increased scientific literacy. They certainly won’t expect to have left a theater having solved climate change, for example. But—but!—the fact that they’re out talking and that people are willing to listen to scientists in their leisure time as a form of—in the broadest sense of the word—entertainment, it’s very encouraging. Over time, the prospect that scientific literacy will rise and that we will become better citizens and that ultimately we may have an impact on some of the broadest existential issues facing the globe. And again, if you ask Tyson or Nye, they’re not expecting to accomplish that in one evening or in one year or in one set of speaking engagements.
Our goals are more limited. In many ways the problems that we’re addressing also are more limited. We’re not as popular. But I think there is a remarkable and really encouraging appetite for spoken word right now that over time can have an incremental effect on making the world better.
JB: And on how people view their criminal justice system, in our case.
AVC: So what would real change look like?
DS: Real change would look like the police abandoning the 1950s flawed psychology that underlies the universal interrogation techniques used by American police departments. Real change would look like children being pulled into the criminal justice system having a parent or a lawyer if they’re going to be interviewed by the police. Real change would look like lawyers and judges making an honest effort to preserve the presumption of innocence after somebody’s charged, rather than to undermine it with pre-trial comments. Real change would look like, in the end, American citizens and voters who are more engaged in judicial elections and district attorney and sheriff elections and more thoughtful and smarter voters than simply falling for crude, tough-on-crime appeals by judicial law enforcement and prosecution candidates. That would be a lot of really good change.
AVC: This is the question that everybody really wants to know: Is Ken Kratz’s voice really as awful in person as it is in the show?
JB: [Laughs.] You heard what you heard. We heard it for six weeks.