The Uphill Slide

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Innocence Projects

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Last night there was a knock on my door, and I opened it to find my smiling son standing there in his black jacket and jeans. I said how? He said his accuser recanted. Of course this was a dream. Why are there innocence projects? Why are there groups on social media dedicated to publicizing the cases of family and friends and others who they believe have been wrongfully convicted? Quite simply, because innocent people sit in jails and prisons convicted of crimes they did not commit. How do such things happen? Is it a simple mistake or misconduct by those officials we rely upon to conduct our justice systems? Each case is different, but there is little doubt when reading about or listening to case details or watching news reports that there is misconduct and that justice is so often not served in our system.

Last year at my daughter’s urging, I listened to a podcast called SERIAL. It was a fascinating series which recounted the details of the case of Adnan Syed who was convicted in 2000 of murdering his ex-girlfriend. The podcast does not convince the listener that this young man was innocent of this murder. It does however leave the listener with doubts as to his guilt, and questions about how we conduct investigations and the bias that enters those investigations. We agreed that we would have been fearful to send this young man to prison for life based on the case. This young man’s lawyer had also not provided the best defense for him. An alibi witness was never called. Unfortunately, this lawyer is now deceased. It has been months since I listened to this, but as I recall there was not willful misconduct in the case. The years have passed, and each year brings less likelihood and hope that the case will be reopened. Fortunately, for this young man he had advocates on the outside who brought interest to his case. This podcast has garnered him widespread public interest and attention. A court hearing now is set to consider his possible alibi witness and the validity of the cellphone data used in his trial.

Then a week ago, my husband was watching a Netflix Original called MAKING A MURDERER. After I watched a couple episodes with him, I wanted to watch this 10-episode series from the beginning. This series has done for Steven Avery what that podcast did for Adnan Syed. It has brought national and international attention to this man’s case and our justice system. I challenge anyone who watches this series to not find its story deeply troubling. We say we have the best justice system in the world. It may be the best, but it is not perfect or even near perfect. To be the best does not mean to stop there. I speak from my experience when I say that this system is in need of reform. Justice is not blind. I was watching this series when my daughter arrived at the house the other day. She thought I had already watched it, and she called me obsessed. I told her I never watched the entire series; I had started near the end and was going back the beginning. She had binge-watched the series as I ended up doing also. The last episode brings the case up to date with current events and reveals startling information about the prosecutor in this case. Everyone has secrets and can find themselves suddenly on the opposite side of the fence.

Steven Avery was a young man in 1985 when he was convicted of sexual assault and attempted murder based on eyewitness identification and spent 18 years in prison for that crime. He was then exonerated based on DNA evidence which not only freed him but identified the real perpetrator who was a known sex offender. How would a person feel after spending 18 years in jail as an innocent man? If you are that victim who positively identified the wrong man, how do you feel 18 years later finding out your mistake? If you are the officials who put this man away for a crime he did not commit, while allowing the real perpetrator to stay free and commit other crimes (which he did) how do you feel? You would think everyone involved in convicting this man would feel guilty for this egregious error. This victim apologized to this man; he accepts that apology. He tells her that he blames the police. I have heard her own words tell how she felt about this mistake. Quite randomly, I started listening to another podcast from RadioLab called ARE YOU SURE? This was a podcast from March 26, 2013. This podcast started with a story of a young man who suddenly realizes he no longer believes in God, moves then to an interview with a sister and brother who are professional poker players who engage in what the interviewer calls ‘probabilistic thinking’, and then moves to an interview with Penny Berntsen who was the woman who positively identified Steven Avery as her attacker. Her segment starts with her jogging along railroad tracks and thinking it would be best if a train came and ran her over. She explains after she learned he was not her attacker she felt she could never make right what she had done. She says she feels like a criminal herself. Those officials who were involved in this prosecution though never accept responsibility for their wrongdoing. Not only were their actions responsible for the pain of this woman 18 years later, the loss of years to Steven Avery and his family, but also to the later victims of the real perpetrator. This series presents a fairly convincing picture of officials who knew they were prosecuting the wrong person yet continued with their case. Of course, for the county and the named officials in Steven Avery’s lawsuit seeking recompense for his wrongful conviction money is certainly an issue. The insurance company was laying personal responsibility on several officials in the case. Supporting those county officials though was the Attorney General of Wisconsin who conducted an investigation and came up with findings of ‘no wrongdoing’ in the case. This would seem to support statements of several of the lawyers in this case who say that the upper levels (Attorney General, Appellate Courts, Supreme Courts) most often uphold the rulings of lower courts which helps to perpetuate the status quo. No one is asking the upper courts to micromanage the first levels of justice, but they should be willing to do so when called upon. Of course, most cases never get to that next step. It is frustrating, overwhelming and above all, expensive. Justice, whether guilty or innocent, costs money; it leaves many with little recourse but to accept their fate unless they or their supporters manage to get someone interested in pursuing their case.

Of course Steven Avery was no saint. He committed burglaries and an incident of animal cruelty and ran a woman off the road and threatened her with a gun. In each case, he admitted his crimes; he spent time in jail. His own words are that he was young and stupid which cannot excuse his actions. His family was not respected in the community, in fact, they lived on the edges of this society. Those are often the targets of society. Who in this prosecution of Steven Avery decided that this young man’s life had no value to him, and he deserved to be imprisoned for being outside the circle of acceptable citizenry? This is the question I ask in my own son’s case. Who decided that his life was worthless? Who believes themselves the judge of people’s value? Who makes the decision that a real investigation is not necessary?

Steven Avery’s story does not end at his exoneration and return to his family. A young woman who was last seen on this family’s property goes missing, and Steven Avery becomes the suspect. Eventually the woman’s car is found in the family scrap yard, and her charred bones are found in a burn pit near Steven Avery’s trailer. He is charged with her murder and eventually his 16-year old nephew, Brendan Dassey, confesses to being an accomplice weaving a sordid story of torture, rape and murder. It would seem that this cements the story and the responsibility for the crime. Yet there is so much more to this story. I watched each episode appalled at the actions of the police in eliciting the confession from this learning-impaired 16-year old who now sits in prison convicted without possibility of release until 2048. This young man’s own lawyer betrayed his client’s interests. I watched this lawyer, Len Kachinsky, smiling and speaking to the press about the case and possible plea agreements which suggested that he believed his client was guilty. I wondered if he had ever even spoken to his client. Later, you learn he had not. The prosecution uses this young man’s confession to explain the events of this young woman’s murder, yet from their evidence they really do not know the events of her murder. They have her car on the Avery property; they have Steven Avery’s blood in her car trunk; they have her car key in his trailer; they have her bones on his property; they know she was shot and have a bullet fragment in his garage. It is not so much what they have as the things they do not have if her murder happened as the nephew described.

There are too many twists and turns to describe in this writing. It is story full of intrigue and possible conspiracy. It is a story of an outsider. He becomes the suspect, and it would seem the only suspect. If anyone else is ever seriously investigated, there is no clue here in this series. I recommend you watch this series and make your own conclusions about this case and the justice system. I cannot tell you that Steven Avery is innocent. I can tell you that based on what I saw of the trial, I would have had great difficulty finding him guilty. I do, however, have the advantage of seeing the entire story of this county, this family, the press coverage, and Steven Avery. So often jurors do not see the full story and players that lead to accusations and charges. Here they did not see all the actions of those investigators and prosecutors in this case. They can only take at face value what is presented. In Brendan Dassey’s prosecution, the jury saw his videotaped confession of horrible events. Can you look beyond those descriptions to see the tactics of the police as they lead and pull this confession from this young man without any adult advocate on his side? Do they see his attorney’s investigator harangue Brendan Dassey into repeating his confession and drawing pictures of his descriptions. This investigator ignores Brendan’s claims that it never happened; he refuses to consider that possibility. This young man had no one representing his interests and challenging his treatment.

I will share some statements that the attorneys for Steven Avery share about the justice system. Attorney Buting says that ‘you may say you will never commit a crime, but that does not mean you will not be accused of a crime.’ Attorney Dean Strang says you do not understand the justice system until you or someone you know becomes entwined in it. I can certainly agree with both those statements. I remember sitting in the jail visiting room listening to people say that any one of us could at any time be only a week away from being in jail. I never ever considered such a thing, but now I know that is true. Someone asked me recently about why bad things happen to some of us. I said there is no reason to think bad things cannot happen to any one of us. Some may be lucky and never have anything happen to their family as has happened to mine. Certainly much worse things happen to people everywhere, but that does not make it easier to accept by comparing one devastation to another. It only makes me know that we are not alone in dealing with pain and devastating events.

Attorney Strang seems to view the justice system as many including myself have come to view it—seriously flawed and in need of repair and reform. I found his words were tweeted recently. He cites a lack of humility within those in the system; and he said, “Most of what ails our criminal justice system lie in unwarranted certitude on the part of police officers and prosecutors and defense lawyers and judges and jurors that they’re getting it right.” Penny Berntsen in her podcast interview suggested that perhaps she is to blame because the 18 years in jail as an innocent man damaged Steven Avery making him capable of this crime. She also questions her own judgement since she misidentified Steven Avery in her case, and then after his arrest for murder speaks to his innocence. She no longer has that certainty. The interviewer then asks Judge Hazelwood, the trial judge, if his belief in his own judgement has been shaken. He denies Ms. Berntsen’s suggestion that she was in any way responsible for making Steven Avery into a person capable of murder, and he talks about Steven Avery’s ‘potential for violence’ based on his crimes 20 years ago. He said he ‘concluded that the courts got it right with the wrong results’. He seems so sure of his views of the justice system. I think it was Attorney Strang who says that he believes that none of the things done to Steven Avery in this case were done with malice. The lawyers also say that the police frame suspects because they believe they are guilty. I guess they are saying then that a case may be weak, and the police do not want to see the suspect walk when they have already judged a suspect guilty. Yet is not that a part of our justice system? We expect the police to be the ones to investigate thoroughly and be able to prove their case or else that suspect deserves to rely on reasonable doubt. Is it just easier to make the evidence fit the suspect they have settled upon and not do a full investigation to make sure they have charged the right person? Is it possible then that lack of a thorough investigation allowed the real perpetrator to get away with a crime just as the real perpetrator did 20 years ago? I cannot answer that.

In the last episode, the viewers are brought up to date on the case of both Steven Avery and Brendan Dassey. Steven Avery has exhausted his appeals and will only get his case reopened if new evidence is uncovered. Steven Avery says he believes the truth will come out someday. This is a man with limited education and a reported 70 IQ who is working on his case going through boxes and boxes of transcripts. He talks about the type of life he wants when he is free again. Attorney Strang tells the producers in that last interview that he hopes Steven Avery is guilty because he cannot bear to think of this man sitting in jail for a second time as an innocent man. What is the probability of such a thing? Extremely low probability, but impossible? For Brendan Dassey, the outlook is not good either, although he has advocates working on his case. They attempted to prove he made a false confession with no success. They tried to get a new trial because his lawyer had not been his advocate. That was unsuccessful, and the last attempt now is in federal court for a writ of habeas corpus. If Brendan Dassey is freed, how might that affect Steven Avery?

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