Netflix’s Making A Murderer left the world with a lot of unanswered questions. Now Steven Avery’s former defence attorneys are here to answer them in their live show “A Conversation on Making a Murderer“.
Season one of Making A Murderer followed the true story of Steven Avery, a man released from jail after serving 18 years for a wrongful conviction. Two years later, in 2005, he was charged with the murder of Theresa Halbach. Throughout the trial process Steven, supported by his defence attorneys Jerry Buting and Dean Strang, maintained his innocence. His then 17-year-old nephew, Brendan Dassey, was also charged as an accessory to the murder.
Today, Avery remains in jail, convicted of a crime he maintains he did not commit. Buting and Strang no longer represent him but are using the immense popularity of the show to spread the conversation on justice much farther than Milwaukee county. Performing across the US, and in sold out shows in London and Glasgow, Buting and Strang’s next stop is Australia.
I spoke to Jerry Buting about the upcoming live show in Perth “A Conversation on Making a Murderer”, Steven’s future, police misconduct and the Presidential election.
XH: Why have you and Dean decided to do this live show?
JB: Well, after the documentary came out a lot of people have peppered us with questions about not just the documentary itself and the case but also the justice system in America and how it relates to what procedures they have in their own countries. We really were contacted from all over the world.
The tour really started with local media; they would interview us and we saw a reversion to the same sort of practice that happened before the trial, nine years earlier, where there would be a fairly lengthy twenty five minute interview, two minutes would end up on the air and it would be distorted.
The same sort of thing was happening again and so we thought we should have a forum where people could come and do a Q&A, unfiltered by the media. So we tried one in Milwaukee and it was so successful that all of a sudden all these other cities started calling saying ‘Can you come here, too?’ It grew into this tour with much broader interests than we ever expected.
What we find is it’s often half and half in terms of questions about the case or the documentary versus questions of broader interests: ‘Are these representative cases for American justice?’ ‘What could or couldn’t happen in our own country with these sort of issues?’
Every country’s system is different, and we don’t pretend to become experts wherever we go, but there are also a lot of common threads. Wrongful convictions are not unique to America; you have them. Race is not unique to America; you have issues with Indigenous people in Australia. So that is really how it started.
XH: Is there anything you are not able to comment on in the show?
JB: Really the only thing is attorney-client privileged material. Information we’ve received directly from our client is still privileged. Even though we’re no longer [Steven Avery]’s attorneys, that privileged communication between an attorney and a client lasts forever. Even after we die for that matter.
XH: You mentioned you are no longer representing Steven Avery. Do you think his case, however, has had an impact on your professional career?
JB: Well, that’s hard to say. Dean and I were both very well known before the trial was heard. There was enormous publicity while the trial was going on, particularly in the state of Wisconsin. Our recognition certainly has grown exponentially since the documentary has aired.
Certainly, if you’d ask me ten months ago if I’d be coming to Perth, Australia, to speak I would have said ‘What? In your dreams’. Or ‘In my dreams I should say!’ That kind of recognition is unexpected and has been very widespread.
We just finished a show in London, which sold out the Palladium. Who could have ever predicted that? The very next night we sold out Glasgow, which seated even more, about 2400 people.
XH: The documentary has had a massive impact and started a lot of discussion. Do you think there were any detriments in the way the Netflix series was presented to public?
JB: I don’t think the documentary was at all sensational. Some people have talked about the true crime genre as entertainment versus the reality that there are real people involved: real victims, real defendants, real defendants’ families. You have that problem in any true crime genre movie or film, but I think you can tell the difference with a truly exploitative film treatment.
Some of the social media discussion might be a little more sensational, or has been, but the documentary itself was very sober and careful. It does, of course, focus on the defendants rather than the victim. But I think that is inevitable. The victim’s family did not participate in the documentary. I’m not saying they should have. I understand the reasons why they wouldn’t. But that’s obviously going to make the focus a little different than otherwise.
XH: A second series of Making a Murderer has been confirmed. Will you and Dean be involved in that at all?
JB: We have been interviewed by the filmmakers already but whether we actually end up in the final version is entirely up to them. It’s something we really can’t predict. I suppose if there are future developments in the case of Brendan Dassey or Steven Avery – any court appearances, hearings, motions for a new trial or results of scientific tests – those kind of things will probably take over the primary focus.
XH: You mentioned the media had an impact on the way the case itself was covered and presented to the public. Do you think the media is partially responsible for impacting the final verdict?
JB: You see the television reporter in the documentary saying ‘Murder is hot right now’ and trying to scoop the other networks. One of the things I think the series does is it shines a light on the media, as well. They turn their cameras on the media during the press conferences, which is not what you typically see.
I think the thing that most affected the verdict was the pre-trial publicity that was generated by Special Prosecutor Ken Kratz. His March 1st and March 2nd press conferences gave a very graphic, gripping description of the horrific rape, torture, murder and mutilation of the body, when there was no physical evidence that corroborated this story at all, and, in fact, the physical evidence disproved much of it.
Media contact with the lawyers was constrained by the court after that, so they just repeated over and over the false narrative that was presented by the Special Prosecutor. I always thought [the press conference] was improper and should never have occurred, and I think even the former Special Prosecutor has said if he had to do it over he wouldn’t have had that kind of press conference. That, of course, doesn’t help Steven Avery because as it turned out, when we had questionnaires filled out by the jurors – we had 130 of them – 129 said they already thought he was guilty or probably guilty, before they’d heard any evidence.
XH: The documentary also reveals a lot of police misconduct. It feels to us, in Australia, that is an ongoing issue in American society at the moment. Do you think a ‘police culture’ has impacted the American justice system currently, and throughout history?
JB: There is a police culture, but I don’t know if it is just American history. You see it all over the world. Part of it is: it’s a difficult job to be a police officer. It is probably becoming more difficult in America with the proliferation of firearms.
The vast majority of sworn officers are there to protect and serve. I think they do their best, and try their best, to do so. But there are a few that don’t. What this documentary shows is, particularly in a more rural setting, you have this kind of control law enforcement that is pretty shocking to people. The ability to control what happens to somebody, even to the extent of them going away to prison, is scary.
I think historically, particularly in America but really in any common law country – Australia included – there has always been a healthy distrust of the government. There are a lot of checks and balances that have been put into play over the years to try and prevent the government, and particularly law enforcement, from abusing that power, because it is a very powerful position.
That ebbs and flows. There are times when people become fearful of their own security and they’re very easily persuaded to give up some of their freedoms in return for the illusion of an increased security, because that’s really all it is.
XH: Can you imagine an America without miscarriages of justice?
JB: I can certainly imagine one where there are much fewer.
Miscarriages of justice can occur unintentionally as well as intentionally. You look at the history of the DNA exonerations. Last year [in America] we had, on average, three exonerations a week and partly that’s because we have a lot of wrongful convictions in our country, but also it’s because we have better access, than in Australia for instance, when it comes to a post-conviction motions that you want to file in the court because of newly discovered evidence. That’s how DNA exonerations happen. In America, if you can establish it really is newly discovered evidence that wasn’t available at the time of the trial, and is material and substantial, then you can file a motion and let the court decide whether or not to reverse the conviction and let the court decide to potentially order a new trial.
Australia is not quite as free in that regard. Once your direct appeal is over, then later you have to apply directly to the Attorney-General to get the case scheduled back in court.
The other thing that America has done is we now have all fifty states plus Puerto Rico that are required by statute to maintain all biological evidence for as long and the person is in prison. If there are developments in the future that improve the ability of science to perhaps objectively prove someone’s guilt or innocence, then at least the evidence has been kept to do so. That still, of course, doesn’t help those cases where physical evidence isn’t so much important.
Let me give you an example. The DNA exonerations: about 70 per cent of them involve mistaken eyewitness identification. About 20-25 per cent involve false confessions. Those can happen in any case where there is no biological evidence involved – simply because there was a robbery or no evidence was left behind – the eyewitness believes he or she can identify the defendant, perhaps wrongly as we now know, or the police think they have the right perpetrator for whatever crime it might be that doesn’t involve physical evidence being left behind. Then, because of their techniques, they get a false confession from somebody.
Some people have estimated anywhere between one and eight per cent of convictions in America could be wrongful convictions, but we can’t prove all of them because not all of them have biological evidence that you can test for DNA.
XH: You’ve mentioned how introducing new evidence can bring about a new trial. Do you think, in that regard, there is still hope for Steven?
JB: I’m optimistic. It’s not easy. Brendan’s case took a different course because, even though his direct appeal in the State Court ended, he was able to continue in the Federal Court through the habeas corpus procedure. You have to take that step within one year of the conclusion of the State Court appeal.
Brendan has had very good lawyers for his appeal, from the North-Western University Centre from Wrongful Conviction of Youth. Steven had public defenders appointed for his appeal, but once his State Court appeal was concluded they were not required, and did not continue to, represent him in Federal Court. All of his initial appeals have ended and now he as at the point where he needs to present newly discovered evidence, in order to get his case re-opened.
He has very good counsel now looking into all that. She has filed motions to allow new types of forensic tests, that weren’t available nine or ten years ago, and if she can find evidence that way it calls into question the reliability of that first verdict and, yes, he has a decent chance of getting a new trial.
Plus, he’s also benefitting from the publicity and the public exposure of his case. There have been a number of people who have come forward with new information that might be useful or develop leads that begin to get him back into court. The court will decide if it is newly discovered evidence and is it serious enough that it might have made a difference in the outcome if the jury had heard it.
XH: I can’t finish up without asking you about your opinion on the Presidential race. Do you think the important issues of justice are getting enough political consideration in this campaign?
JB: For a while they were, particularly throughout the primary season. That was one of the things I found interesting. It’s not just Making A Murderer but other things like documentaries that proceeded it – like Serial – and also the prevalence of cellphone videos that show a different type of interaction between citizens and police than a lot of people thought. And the concern about the mass incarceration that’s been going on in America. All of those things came together at the same time so that, for the first time in my lifetime, both sides were debating issues concerning criminal justice reform in America: both the Democrats and Republicans. It was really being treated as a non-partisan issue. I think it is non-partisan. It really shouldn’t matter which party’s in office.
I will say that in the last couple of months, there hasn’t been a whole lot of discussion about any issues of substance. It has been drowned out by a lot of other distracting types of issues that have come up. I would have liked to have seen more discussion about the problems our country faces and the reforms that we need in the last couple of months leading up to the election, but we haven’t really seen much.
XH: Jerry, thank you very much for talking with me. Is there anything else you’d like to add?
JB: I think we’ve covered quite a bit! One odd happenstance about the timing of this is that we’re actually going to be in Australia when the American Presidential Election takes place.
I’ve already voted – we have early voting – but I will be down under when there’s coverage about what happens and the results. It’s going to be interesting to see it from almost an outsider’s perspective; to see how it’s covered by your media!
I am very much looking forward to coming to Perth. I’ve been to Australia once before, I went to Sydney for about a week over 20 years ago. I’ve never been to Perth. I understand it’s beautiful and I’m really looking forward to it.
XH: I hope it fulfils your expectations.
JB: I’m sure it will.
Join Jerry Buting and Dean Strang for “A Conversation on Making a Murderer” on Saturday 5th November at Perth Concert Hall.
For tickets and more information visit: http://www.perthconcerthall.com.au/events/event/making-a-murderer-2016