Tuesday, January 26, 2016

Making a Killing off a Murderer: An Analysis of the Crime and Documentary - Part Five

Disclaimer: My commentary on defense attorneys and prosecutors is to make a point about our system, not to condemn all attorneys. Defense attorneys, prosecutors, police, documentary makers....all professionals....represent a spectrum from what is the best about their fields and what is the worst..and most fall in the middle.

On this final part of my post on Making a Murderer, I want to talk about attorneys. We have an adversarial system in the United States which essentially means two lawyers are pitted against each other in court and neither one's objective is discovery or presenting the truth. Nor are they necessarily seeking justice. Their goal is to win and, unfortunately, our system allows them to do just about anything to win including lying, deceiving, manipulating, ignoring, terrifying, and paying others to do the same (these others are called "experts"). On the receiving end of this dog-and-pony show are twelve untrained jurors who are supposed to figure out which highly experienced lawyer and which highly experienced expert is telling the truth. They are supposed to do a solid crime scene analysis, something many police detectives have trouble doing and they are supposed to profile the defendent and witnesses in spite of having zero education in psychology or criminal profiling and they are supposed to understand and analyze forensic evidence in spite of the fact they have never studied anything remotely connected to DNA, blood spatter patterns, forensic pathology, etc.

And you are worried about the police planting evidence? The real planting of evidence happens in the courtroom where the attorneys plant all sorts of crazy ideas, stories, incorrect "facts" and distorted information in the heads of the befuddled jury and then collect a huge sum of money regardless of the outcome of the trial. In fact, if the defense attorney loses his case, he can make more money on appeal. What a great profession!

Now, let me tell you how each side works. Generally speaking, a prosecutor wants a pretty solid case before he goes to court. He doesn't want his win record ruined. Many times cops are frustrated because they have the right guy but the prosecutor won't prosecute because he wants and open-and-shut case. So the guy goes free; it is very difficult for police officers to not become discouraged and cynical. But, if there is a good amount of evidence the prosecutor works hard to put together the timeline and facts and motive, gets good local experts to testify, and hopes the jury understands the evidence and finds the defendant guilty.

Once in a while when a case is a pain in the state's backside, a lowlife character will be prosecuted with limited evidence. The jury doesn't have much interest in or sympathy for the guy and usually he is stuck with a public defender. It is amazing how often the prosecutor can win a case like that. This is the rare time the prosecutor might actually wonder how guilty the defendent is but go ahead and prosecute because the political power that be want him to and he wants to keep his job.

On the other hand, a defense attorney almost always has a guilty client and knows it. The evidence is usually pretty solid so he pushes the guy for a plea bargain. If his client wants to go to trial, he goes to court and usually loses but then he goes home and watches football; the guy was likely guilty anyway, so he isn't losing sleep over the conviction. He still gets a paycheck.

Sometimes, a defense attorney really does believe his client is innocent. If it bothers him enough, he might really put a great effort forth to try to save him from prison. If he fails, he might actually find himself drinking a few doubles in the bar.

But, let's say the attorney has a guilty-as-hell murdering client but he is making a good payday off of the trial. Well, then, he will do everything he can to investigate (and charge for every dime of his time spent), delay and delay (and charge) and hire experts and do lots of depositions (and charge) and present a very detailed case in court (and charge). His client can tell him he is guilty and he will go right ahead and try to get him off. I have never understood how anyone can morally do this. Some people believe that a guilty person is entitled to the best defense but in this system it can mean anything the defense attorney can cook up to bamboozle the jury into acquitting (Casey Anthony, O.J. Simpson).

Here are all the things the defense is willing to do when they realize they can't win a big case based on the evidence (since it proves their client is guilty).

1) Go on TV and try to pollute the jury pool (jurors lie when they say they know nothing about big cases or they have not been influenced).

2) Hire experts to say whatever they want. Have you ever wondered how it is possible to have the prosecution expert and the defense expert (both Drs) say the exact opposite? In a big trial, usually the jury will believe the defense expert over the prosecution expert because the prosecution uses a local fellow and the defense expert is a famous guy you see on TV that they paid $50,000 to show up. Who would you believe? Dr. Poindexter Rafferty or Dr. Michael Baden?

3) Make up a good story. I have been hired by defense attorneys to profile their cases and when I said their client was guilty as hell, they wanted to pick my brain for alternate scenarios. I always refuse and walk out. But, in court, some crazy alternative suspects and scenarios are created so that the jury starts thinking, well, maybe that could have happened. Then, they push aside all the evidence because they think there is some minute possibility which could explain away everything and the defendant just might not be guilty and they don't want to err and have the guy's blood on their hands.

4) Blame the police. It is an old trick. When the evidence is likely to convict your client and you can't come up with a good story that will sway the jury into letting him off, blame the police. Start picking apart the investigation, point out any investigative error made or any character defect in the officers involved in the case, make the jury think that the police force is corrupt, that they planted evidence, coerced confessions, somehow are railroading the defendent. Sometimes it works and it only needs to work on one juror and the hung jury will assure the attorneys another round of large checks.

Oh, and don't forget, a jury is not selected by drawing twelve numbers; the defense does their best to make sure no one with too much analytical ability is on the jury (I will never be allowed on a jury). The defense does not always succeed, but they do their damnedest to stack the deck.

5) The final trick is called time. If enough time passes between arrest and the trial, or between the first trial and the appeal, or between the conviction and some claim the client is innocent by a documentary company, witnesses have died, the victim is all but forgotten by the community, emotions have dissipated, and the convicted has been "rehabilitated" - he hasn't committed a crime in years (because he has been incarcerated) and he has become a) Christian b) a college graduate c) a jailhouse lawyer d) married and a daddy. Now, he seems like a decent enough guy, maybe one who was innocent and suffered years in prison for a crime he didn't commit. Now, there are "questions" as to his guilt and then a killer gets his own fan club, freeinsertname.com website, and, if lucky, Hollywood interest.

Making a Murderer is a defense driven, biased film which pretends to care about showing the ills of the system. I would like to put the producers on a polygraph and ask them these questions:

1) Do you think Avery is guilty?
2) Did you misrepresent Avery's character in the film?
3) Did you misrepresent the evidence in the film?
4) Did you purposefully present a view of the case purely from the standpoint of the defense?
5) Did you make this documentary to educate or to make a lot of money?

When they finish answering these questions, I think they might need a good lawyer for the civil case against them for slander and defamation. Maybe they will hire the attorneys who represented Steven Avery but, then again, these guys lost the case...maybe they should look for other representation.

Criminal Profiler Pat Brown

January 26, 2016


anon said...

I understand that Kratz is the one planning to write a book. In addition, the only credible evidence found to implicate Avery was found by Lenk and Colburn, who were both deposed.
To avoid accusations of evidence planting, would it not have been better if these deposed individuals were not involvedin the case in the first place?
Kratz was extremely unethical by conducting a very bias press conference before the trial had even began, you don't mention this is any of your posts.
Regardless of Avery's innocence or guilt, it cannot be denied that there are systemic failures within the CJS. I am surprised that this is not your focus.

Pat Brown said...

Anon 12"30

I focused on the documentary because I was asked to comment on it and Avery's guilt. Right out of the gate, the producers allowed Avery to lie to the viewers and so this kind of deception continued throughout the film. My blogs are not a thorough study of the case and all involved; I would have to spend an incredible amount of hours to research each and every issue related to this case and I do not intend to spend this kind of time in my life for no compensation. All I wanted to do with these blogs was to bring to light points that many viewers of the documentary have never considered or do not understand and, therefore, have fallen for the producers' incredibly biased film and now are wanting Avery to be freed.

Pat Brown said...

Derogatory comments and name calling will cause your comment to be removed.

Gambler said...

Pat thanks for sharing your expertise and views on this case and TV Show, I found it very interesting as usual.

Pat Brown said...

If your comment has been removed, please do not return to comment on this blog again. People who cannot be polite need to comment here.

The Secret of My Success said...

Pat the filmmakers worked on this film for ten years with no guarantee it would ever be screened or bought by a broadcaster. It is an independent and independently funded venture. To suggest it was made for financial incentive seems unlikely.

Pat Brown said...


I see your point and one could say the ladies were simply determined to seek justice or a fascinating story. However, I have worked in television for well over a decade and I know how filmmakers and documentary makers tend to think and one thing they thing about is what sells. What sells is rarely a well-balanced totally fact driven documentary. One is much more likely to get their film aired if it is "edgy" or "myth busting" or "sensational."

Regardless of their original or later purpose, I lost all respect for the filmmakers when they allowed Avery to lie on camera without also giving the facts to the viewers. It is manipulative and simply unethical.

The Secret of My Success said...

Do you really feel it was sensational in the way it was presented? It felt like quite a restrained piece for the most part. It's hardly Bowling For Columbine.

With that said, I will agree with you that the film had enormous bias, not least in allowing Avery to narrate his own unsavoury aspects to cultivate sympathy from the viewers.

Pat Brown said...

Yeah, Secret, I do. There is dramatic videography, stirring and creepy music, and the whole way the program was developed sensationalized the case by damning the police with unproven claims of evidence planting and making Avery a poster boy for railroading.

Gladys Brierley said...

Thanks I was going to watch it but now I won't. I am working on a case of an innocent man imprisoned for 20 years. All the evidence points away from him. He was railroaded. Why these people chose a subject like this guy instead of a truly innocent person I do not understand.

Pat Brown said...


I get frustrated by the same issue. I have a few cases I would like looked into because I believe they are wrongful convictions but there is no interest, Why? Probably because they aren't death penalty cases or well-known cases or people anyone cares about. The cases that are picked up by the Innocence Project and law student projects usually have some political spin to them.

Lisa Smart said...

What's your thoughts now that Brenden's conviction has been overturned? (Which I am over the moon about).

Avery will be freed soon too.