As we enter the fourth week of 2016, Steven Avery is entering the ninth year of his lifelong conviction for the rape and murder of Teresa Halbach. Once wrongfully convicted for the first-degree sexual assault of Penny Beernsten, Avery was rightfully released from imprisonment after eighteen years behind prison walls. Nearly four years later, Avery found himself stripped of freedom for the second time — and this time, he’s never getting out.
Making A Murderer shattered every trust we had in the criminal justice system. And now, audiences finish the ten-episode series with an inevitable aspiration to seek justice where we believe justice was compromised.
As many have pointed out though, with viewership of shows like Making A Murder and podcasts like Serial, the public is dangerously close to believing our binge-watching culture equates to being an expert in the criminal justice and legal system. With our trust invested in the series’ creators Laura Ricciardi and Moira Demos, fans of the climactic doc are left with the grave concern that searching for a conviction is often inconsistent with searching for the truth.
Brendan Dassey, Avery’s nephew also convicted for Teresa Halbach’s alleged rape and murder, will be eligible for parole in 2048, making Dassey 59 years old. After attempted appeals and thwarted hopes, Steven Avery is promised to be living the rest of his life in the Waupun Correctional Institution without the possibility of parole.
As of last week, Avery is seeking a new trial citing violations of due process rights. Attorney Kathleen Zellner, of Chicago, will be representing Avery along with Tricia Bushnell of the Midwest Innocence Project.
With talks of a season two and petitions for Avery’s release substantiating the Internet, Avery’s one of two defense attorneys, Jerry Buting, featured in the documentary, spoke with me about life after the heated controversy that is Making A Murderer.
To put things into perspective, five and a half weeks ago, no one had even heard the name ‘Steven Avery’ outside of Wisconsin. What were you anticipating upon the release of Making A Murderer?
Jerry Buting: Well I knew that it was going to be released globally. So I knew that some people would know who [Steven Avery] was and what his case was about. I had no idea that it would be saved with such a passion — to the point where it’s become a moving social piece.
Thinking back to filming — were you foreseeing that Avery’s story would turn into a national discussion about our criminal justice system?
JB: Well I did hope that there would be some discussion. I didn’t have any control over any editing of the process, but I did see a preview of it just the week before it was released. So, I knew that it could raise a lot of issues about our criminal justice system. And I was hopeful that there would be some passionate discussion about it. But with documentaries, you never know how widespread their viewing will be. And I didn’t anticipate the impact that it’s had.
Are you pleased with the discussion stemmed from Making A Murderer?
JB: By and large, yes. There [are] some people that are maybe losing some of the broader points the documentary raises. But I think that a lot of serious people are asking pretty serious questions about what happened and not just with this case, but what are the systematic problems that can make this happen in other cases.
How has this documentary and/or Steven Avery changed your life?
JB: You win some and you lose some. You always hate the losses – they’re difficult. But his was probably one of the most difficult trials for me to disengage from – it took me several months. But it didn’t probe me to become cynical or try less aggressively in [my] other cases. If anything, it reinforced the need to leave no stone unturned and do everything you can on each case.
When the documentary aired, I was in Rome visiting my son when the beginning of the onslaught of publicity hit —and it’s not big in Italy either. I could walk down the streets with the same anonymity that I had. But as soon as I got off the plane in Philadelphia and New York, I had all these people coming up to me, recognizing me, wanting selfies. It was a pretty rude awakening. They’ve all been very supportive, positive, uplifting people. I appreciate that very much.
Were you prepared for the positive reaction or were you thinking it was going to go the other way?
JB: Before I saw it, I didn’t know at all which way it would go. That was one of the risks involved with being in a documentary in the first place. They can make me look bad if they wanted to. I had never seen myself in this kind of a filmed, long term duration like this. I certainly didn’t expect to be viewed as a hero. I did no more or no less than what any criminal defense attorney should do. Because of the lack of resources these days, particularly for poor people charged with crimes, sometimes the quality of criminal defense isn’t as good as we’d like and we saw that in this documentary. I didn’t feel like I was doing anything that deserved hero status any more than the hundreds of thousands of other defenders who do this everyday.
Is Making A Murderer an accurate portrayal of Avery’s trial — especially with the new claims that there was substantial evidence left out of the series that would allude to Avery’s guilt?
JB: Those claims by the prosecutor that a lot of evidence was left out are nonsense. Sure, this was a six-week trial. Not every little piece of evidence could possibly be [included] — even in a documentary of this enormous length. But the vast majority of important pieces of evidence for either side were included. Obviously, there’s pieces of the defense’s case that weren’t included either. And only after the fact, does the prosecutor now claim that these isolated pieces of evidence that didn’t make it in were somehow crucial to the state’s case. It’s simply not the case.
What do you think explains Jodi Stachowski [Steven Avery’s former fiancé] changing her story about his innocence ten years later?
JB: I think this is a vulnerable woman that was depicted as having all kinds of issues from alcoholism to so many other life issues that she’s dealing with; she was under a great deal of pressure from law enforcement at the time. It’s not terribly surprising that her expressions of opinions might change. I don’t know whether she’s been subjected to pressure from law enforcement or other people in her community – it’s very possible. She said what she said in the documentary and that was consistent with what I was understanding at the time. Plus, I think she’s made some claims about threats to herself or her family. But she was in custody or he was in custody for 16 months of their relationship. Every single call between them was recorded. So there’s absolutely no evidence of that.
Towards the end of the series, Dean Strang [Avery’s other defense attorney] said “If I’m going to be perfectly candid, there’s a big part of me that really hopes that Steven Avery’s guilty of this crime. Because the thought of him being innocent of this crime and sitting in prison again for something he didn’t do…and now for the rest of his life…I can’t take that.” How does this resonate with you?
JB: That’s something that resonates with every criminal defense attorney. People often ask me ‘How can you defend somebody that’s guilty?’ And first of all, it’s presumptuous for us to think that we’re so certain that we can know who’s guilty and who’s not. Only God does.
Secondly, there’s a great deal of more pressure on you if you’re convinced that your client is innocent. And if you lose, justice is really a horrible injustice. I think there’s a part of every criminal defense attorney who hopes that if they lose, their client is not innocent, because otherwise it’s that much more difficult to stomach.
What’s next for Steven Avery and Brendan Dassey?
JB: Mr. Avery has a new attorney – she’s got experience with wrongful convictions and incarcerations. She’ll be looking at what options he still has. [Avery’s] direct appeals are over, but there’s always the vehicle of a motion for a new trial based on newly discovered evidence.
In Brendan Dassey’s case, the appeals are still pending. They’re towards the end of the process, but it’s possible that he may succeed on his case.
Besides binge watching a television series, what can the public do to ensure a just and fair legal system and due process?
JB: People can take off their blinders and look at what’s happening in the criminal justice system. There’s all kinds of issues raised here from the lack of presumption of innocence to the influence of media on people’s perceptions of both the justice system and individual cases. People need to keep an open mind and not pre-judge [criminals] based on visuals that are presented to them in short little snippets during the nightly news.
The other thing – people need to take seriously their own civic obligations including jury duty. Most people, when they get a jury summons, it’s the last thing in the world they want to do. They try mightily to get out of jury duty. But if that happens, then we don’t get a fair crosscut of our society on the jury. With a lengthy trial like this, most people who are over 25 and under 60 are not working on those kinds of juries because they’re working and don’t want to take the time. But it’s an important civic obligation that we all need to participate in. Hopefully people will realize that.
Is there anything you’d like to add?
JB: One thing I would caution people with is the whole ‘rush to judgment.’ And we saw it before the trial with the media just critically accepting the prosecution’s narrative about what happened. And the public was adopting that as if “we now know what happened to Teresa Halbach,” as the prosecutor said. That kind of certainty and rush to judgment is dangerous.