—I can’t believe how many things Brendan’s lawyer did wrong and/or unethical.  Shocking that someone as vulnerable as this young man wasn’t getting at least his fair shake at justice.  https://www.youtube.com/watch?v=lPtcYuCga-k

>Let’s begin with the video of the interview between Brendan and the investigator.  I don’t know how this got broadcast.  All communications between a lawyer and his client are confidential (unless the client waives it) and the lawyer can’t say anything about those communications to anyone, not even Mom.  An investigator is considered an extension of the lawyer and bound to the same ethical duty of confidentiality.  So how did the video get broadcast in the series??

>>I’ve worked as a defense lawyer for years.  Even if the client has given a confession, I always ask them, “What happened?”  Like Brendan in Making a Murderer, many clients tell me the cops talked them into confessing and, in reality, they are innocent.  When Brendan told that to the investigator several times, the investigator replied that “you’re not innocent and if you don’t confess I can’t help you.”  Obviously, the defense lawyer was preparing for a plea deal and a plea of guilty—but if the client says he didn’t do it, Stop.  It’s the client’s right to plead guilty or to plead not guilty—even if he is really guilty.  It’s the lawyer’s ethical duty to zealously represent him no matter what.

>>Never, never let the client talk to law enforcement without the defense lawyer being present.  The judge dismissed the defense lawyer for Brendan because of this—it was the right decision.  I can’t understand what the lawyer was thinking by allowing his client to meet with them.  The way it was set up with the investigator, sounded like the defense lawyer was trying to squeeze his client into a second confession.  In fact once an accused person has legal representation, everyone (police included) are supposed to ask the lawyer’s permission before talking to the accused.

>With a young client who has a borderline IQ, learning disabilities, and possible mental illness, the first thing to do is a thorough psychological evaluation.  This wouldn’t be done for a mental illness defense, but it should have been used when the defense tried to get the judge to throw-out Brendan’s confession.  The standard the judge must use is: was the waiver of constitutional rights to remain silent made in a knowing and voluntary manner?  Even a juvenile is capable of waiving his constitutional rights.  In Brendan’s case, if the psychological evaluation showed he had difficulty understanding instructions, was easily influenced, had a significant mental impairment, perhaps the judge would have decided he was unable to waive his right to remain silent and the confession would have been thrown-out.  The defense never did this.

I can’t wait to see episode 5 of Making a Murderer.  The test tube that had been tampered with . . . where will that lead??  But unless I’m missing something, the defense for both defendants is still facing a huge problem that the series has been ignoring: there was the dead burned body of Teresa Halbach found in front of Avery’s front door.  What about that evidence?

The post The Truth Behind “Making a Murderer” Episode 4 appeared first on Colin T. Nelson.

You recall the story started with the unlawful conviction of Steve Avery.  After serving 18 years in prison, DNA testing proved he wasn’t the perpetrator.  He began a new life of freedom until a local woman, Teresa Halbach disappeared.  In Episode 3, Making a Murderer showed the evidence found on Avery’s property including the burned remains of the missing woman.  Then, Avery’s teen aged nephew came forward to tell sheriffs that he had helped Avery murder Halbach.  Both were charged with murder. https://www.youtube.com/watch?v=LJb8lUvUMUU

In an effort to dramatize the story, Making a Murderer has cast law enforcement as the villain.  Along those lines, here are three arguments I have with the show:

—Why didn’t Steve Avery’s lawyer put up a vigorous defense at the preliminary hearing for Halbach’s murder?  The civil lawyer in Avery’s suit against the county complained that the defense should have fought harder.  (He’s not a criminal lawyer)  What happened?  A preliminary hearing has a limited purpose: the government must convince the judge there is “probable cause” to allow the prosecution to continue moving forward.  It’s not a trial.  The question for the judge to decide: is there enough evidence to say that Steve Avery probably had something to do with the crime?  A really low standard of proof.

Contrary to the criticism in Making a Murderer, a criminal defense lawyer may challenge the evidence and try to get the case thrown-out early in the process.  In Steve Avery’s case, the evidence was strong.  The defense wouldn’t want to reveal any of their case to the prosecution this early in the proceedings—so they wouldn’t put up a strong fight at this point.

—Avery’s nephew, Branden, was interrogated by sheriffs for a long time while Branden was alone without a parent.  He was only 16 at the time.  Is this legal?  In Minnesota, where I practice, interrogations like this occur all the time with juvenile suspects.  The Supreme Court has okayed it so long as the juvenile understands the Miranda waiver and the questioning is filmed.

—The Making a Murderer series early on put law enforcement in the role of the villain.  Very few law enforcement people are interviewed.  Instead, Avery’s lawyers, his family members, and strangers in local bars all say with conviction that Avery was “set up” and that evidence was planted by law enforcement to get Avery behind bars.  Although I’ve experienced this kind of behavior in some of my cases, I disagree with it here.  Let’s look at some of the evidence.

The defense lawyers said it would be easy to plant the keys in Avery’s bedroom with his DNA on them and also to plant his blood inside the victim’s SUV that matched his DNA.  It’s difficult if not impossible to “plant” DNA anywhere.  Let’s follow the chain of events that the defense is suggesting here:  law enforcement parks the SUV on Avery’s property, somehow they get his blood and smear it inside the vehicle.  Next, they somehow get his DNA on the keys and drop them in the bedroom.  Maybe, at this point, we could have legitimate suspicions, but there is one huge problem about this theory.

In the end, it also means that law enforcement also killed Teresa Halbach and burned her body on Avery’s property—without anyone else noticing.  Do you think they’d do that just to “get Steve Avery?”

The post The Truth Behind “Making a Murderer” Episode 3 appeared first on Colin T. Nelson.

It started with the unlawful conviction of Steve Avery for sexual assault and attempted murder in Manitowoc, Wisconsin.  Unfortunately, he spent 18 years in prison before DNA testing proved later that he wasn’t guilty.  Making a Murderer followed Avery from that point as he started a new life while working at the family auto salvage business—until a local woman disappeared.

Her abandoned SUV was found at the Avery business location.  A set of her keys with Steve Avery’s DNA on them were found in his bedroom.  His blood was found inside the SUV.  And in a shallow pit in front of his trailer home, investigators found the burned remains of the missing woman.  As an experienced criminal lawyer, the Making a Murderer series show developments that raise questions for me and maybe you also:

1.  If Steve Avery really kidnapped and killed the woman and left a trail of evidence around his home—could any criminal have been that stupid?  Yes!  Here are some examples from my own cases:
   1. A woman walked in front of a row of houses.  She left her baby and the carriage on the sidewalk as she burglarized one of the houses.  When she returned for the baby with the loot, the police arrested her.
   2. A man robbed a jewelry store at a shopping mall, managed to get outside with the stolen items, and was arrested as he waited for his get-away ride—the public bus.
   3. Three teenagers robbed a man at gun point and stole all his money and jewelry.  Later, they were caught when the victim saw a post of Facebook of the three young men—wearing the same clothing used during the robbery and wearing all of his bling hanging around their necks.
2. Can burned bodies really be identified accurately?  Yes.  The Making a Murderer series showed a shallow pit in the front yard where the victim’s body had been found.  Forensic pathologists are incredible!  If the face and flesh are missing, they can still use dental remains to identify the victim.  (Teeth can withstand fires better that any other parts of the body)  Pathologists can also determine if the victim was alive when the fire started.  (If so, the throat will reveal smoke or soot)  Even if all the body parts are missing, bones often survive a fire.  DNA testing can identify the vic, but other features may also be used—if the victim had broken bones that had healed but could be identified or if pins, plates, or screws had been implanted, for instance, they could also help to identify the victim using medical reports of prior injuries or surgeries.
3. When the local District Attorney asked for a prosecutor from a different county—is this common?  Yes.  Whenever there is a potential conflict of interest, a politically sensitive issue, or a checkered history that may not give the suspect/accused a fair shake (as it appeared in the Manitowoc County Sheriff’s office), it’s common to ask for outside help.

I can’t wait to see what the Making a Murderer series will reveal about the new crime?  Did Steve Avery do this one or was he set-up by the angry sheriffs??

The post The Truth About “Making a Murderer” Episode 2 appeared first on Colin T. Nelson.

I’m hooked on the series—although it moves slowly—for two reasons: I write murder mystery fiction but have always known that real life is much more bizarre and fascinating.  As you know, Episode One recounts the conviction of Steve Avery for sexual assault and attempted murder.  Because of DNA analysis, he was cleared of guilt and his conviction over-turned.  Unfortunately, he served 18 years in prison.  As a criminal lawyer, there are aspects of the series that I question:

1.  What about law enforcement’s conspiracy against Steve Avery?  Although it’s rare, there have been cases where law enforcement has a grudge against someone for committing crimes but they can’t catch or prove anything.  Would that lead them to target the person and fake a crime to get the guy?  Yes.  Particularly, in a small town where people know each other, law enforcement might treat the suspected person more aggressively.  As long as police/sheriffs don’t violate the person’s constitutional rights, there’s very little the targeted person can do.
2. How could Steve Avery have been found guilty in the original trial?  The Making a Murderer series doesn’t show much of the trial.  Here are some thoughts to fill in the blanks.  It appeared that Avery waived a jury trial.  That meant the government had to only convince one person (rather than 12 unanimous jurors) of guilt.  The prosecution presented the testimony of the victim and the test results of fingernail scrapings.  (Which matched Steve Avery but others also)  The defense presented several alibi witnesses who put Avery in a different place from the crime scene.  Considering the unreliability of eye witness memory and the defense witnesses, how was he found guilty?  I suspect the prosecution had more evidence that wasn’t presented in Making a Murderer.  Possibly, the victim’s ID was so thorough and convincing the judge was convinced beyond a reasonable doubt of Steve Avery’s guilty.
3. Did the sheriff “rush to judgement” and ignore possible evidence that was contrary to their belief of Steve Avery’s guilt?  How could this happen?
4. The sheriff and district attorney are elected positions.  They’re law enforcement jobs, of course, but are also highly political.  It looks like there was extreme pressure put on law enforcement to find a suspect and get a conviction—as soon as possible.  In my experience, this pressure has an effect—it may cause competent and honest people to go ahead with a questionable prosecution.
5. When I was a prosecutor, it felt like I was on a team—police, sheriffs, and prosecutors—all struggling to solve crimes and convict bad guys.  There’s a tendency to “group think.”  That means a group’s decisions trump the individual’s questions and open mind.  Maybe group think clouded the thinking of the prosecution in the original case against Steve Avery.
6. Almost always, the prosecution may have evidence that points to guilt but they’re unable to use it in a trial.  The Making a Murderer series didn’t reveal other evidence, but if there was and the prosecution knew about it, that could’ve convinced them they had the right man from the start.

If you’ve been watching, what are your thoughts about Episode One?

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