Several people have asked me for my opinion of the Netflix documentary Making a Murderer. Their question boils down to two parts. First: Do you think Steven Avery is guilty? Second: Is this documentary as shocking to a lawyer as it is to the rest of us? Setting aside the first question, the answer to the second is: Yes. Absolutely.
Dean Strang, one of Avery's defense attorneys, commented on Avery's nephew Brendan Dassey's case in an interview with Madison newspaper The Cap Times as follows: "The longer I'm in [this work], the more I tend to think about or at least focus on and worry about broader systemic failings or weaknesses and Brendan Dassey's case was just a vivid example, I think, of some systemic failings and fault lines that haunts me and provides a lot to think about." His quote sums up the takeaway for me and, I think, for most attorneys who have seen Making a Murderer.
That aside, there are certain lessons from Making a Murderer which are important for any person, whether facing civil litigation or criminal charges, to keep in mind.
1. Do not talk to lawyers for the other side by yourself: always have your attorney present.
One of the most disturbing aspects of Making a Murder is defense attorney Len Kachinsky's handling of Brendan Dassey's case. For those who are unfamiliar with the series, in short, Kachinsky serves Dassey, an intellectually disabled 16-year-old boy charged with first degree intentional homicide (among other things), up on a silver platter to Wisconsin state prosecutors. Kachinsky allows Dassey to be questioned alone - without Kachinsky present. Per the documentary, Manitowoc County sheriffs coerce Dassey into a confession. A jury then finds Dassey guilty.
Never talk to lawyers for the opposing side without an attorney present. Speaking with the other side without an attorney present is potentially damaging to your case. Your attorney should accompany you to negotiations, depositions, etc. Furthermore, once you have retained an attorney, you should not communicate with opposing counsel alone over the phone or by email. Always allow your attorney to communicate with opposing counsel on your behalf.
2. Details matter and your attorney needs all the facts in order to effectively represent you
Steven Avery's case is complex but his defense team scorches the earth to provide the best legal representation possible to their client and grapple with facts, both good and bad. They mold the cards they are dealt into their defense strategy and do a thorough, professional and competent job.
It is better for your attorney to know about bad facts beforehand than for them to come to light during discovery or at trial. The information will most likely come out during discovery, when the court rules allow the other side to go digging for information, or worse - at trial. The more your attorneys know in the beginning, the better they will be able to protect you throughout the case.You should always be honest with your attorney and communicate the full range of facts - both good and bad - which relate to your case.
In Making a Murderer, Kachinsky does not appear to adequately communicate with or listen to his client. Eventually, Dassey requests that the court appoint a different public defender to represent him because, he says, Kachinsky "thinks I'm guilty".
You should be able to communicate with your attorney and ask questions. Your attorney should return your calls and keep you informed about case strategy. If you feel that your counsel is keeping you in the dark, it may be necessary to terminate your attorney's services and seek alternate legal representation.
Making a Murderer opens our eyes to flaws in the legal system which particularly affect those with unequal access to legal resources. Regardless of whether I think Avery and Dassey are guilty, I do not think they received a fair trial and I do not think the Manitowoc Sheriff's Department's handling of their cases was proper. I hope that the documentary is the spark that lights the fire for a close examination of flaws in the system and paves the way for reform. In the meantime, people can take steps to protect themselves from falling through the "fault lines" in the legal system by keeping the above tips in mind.