The Terrifying Truth about Netflix's Making a Murderer
Why police and prosecutorial misconduct went unpunished in the trial of Steven Avery and Brendan Dassey, and how the same thing could happen to you.
Explained by a San Diego Criminal Defense Attorney
January 5, 2016
This article is not legal advice - it is for informational purposes only. I can only comment on California Law, not Wisconsin Law, which is the state in which this case takes place.
<<WARNING - THIS ARTICLE CONTAINS SPOILERS>>
If you are wondering how normal it is for police to behave in the manner that coerced Branden Dassey into giving a "confession," the answer is shocking and disturbing: It's part of the normal routine of their job. The job of police is to gather enough evidence to "close a case," which means gather enough evidence to help the District Attorney obtain a conviction, "in the interest of justice."
Police are given a wide variety of tools that they may use to gather information - and a wide lattitude by the courts in terms of permissible behavior and application. The "Interrogation," is the most common tool used by police to extract information.
(1) They will interrogate you for a long-time, and more than once.
Police will attempt to interrogate you for hours upon end - with the average interrogation lasting over 1.5 hours according to a study by Williams College. Shockingly, that same study, which was conducted by self-surveying law enforcement, found that on average nearly 5% of confessions came from "innocents." In a 2009 study of 125 proven false confessions, police interrogation in those cases lasted on average over 16 hours. Time is not on your side when you are dealing with the police. Police interrogated Brendan Dassey five (5) times, with each session lasting on average 3 hours in length.
(2) Police will mislead you and even outright lie to you.
In the case of Brendan Dassey, Police repeatedly told Brendan "we know what happened, we just need to hear it from you." Police lied about having physical evidence linking him to the crime and the scene, and they lied about what would happen to Brendan if he told them the truth. In an interrogation, a Police officer acts like they are your best friend and they tell you things, "I'm on your side, I just need you to tell me how to write my report." If you are shocked at the tactics police used to mislead Brendan Dassey into giving a false confession, then you would be surprised to know that there are more than 10 ways police can legally lie to you.
(3) They will ignore your pleas of innocence.
Police will ignore you when you try to tell them you are innocent - they will say, "We can't help you out if you keep lying to us." They will also say, "We are just going to sit here until you stop lying to us." They will tell you over and over again that you are lying - that they know you are lying, they have physical evidence that you are lying, and that you're only digging yourself into a deeper hole by continuing to lie and not cooperate. This technique is called "Gaslighting," and it's actually a form of Domestic Violence - a tactic to deceive and convince you that there is something wrong with you that prevents you from believing the truth about what happened. This is unfortunately conduct that is sanctioned by the court.
As a general proposition, police are permitted to deceive and lie. "The lies told by the police to a suspect under questioning do not render the confession involuntary per se. Mere trickery alone does not invalidate a confession. The court must look to see whether the deception is reasonably likely to produce a false confession." People v. Farnam (2002) 28 Cal.4th 107; Hawkins v. Lynaugh (5th Cir. 1988) 844 F.2d 1132
(4) They will ignore your requests for a lawyer - and your lawyer may be of no help.
Police can even ignore your request for a lawyer - and this is a widely accepted practice of law enforcement. A confession obtained without an attorney is not admissable to show that the defendant is guilty, however in California police routinely continue to talk to suspects after they request a lawyer. First, if a suspect starts talking again, then the request for a lawyer is considered waived. Second, police know that a confession given after a request for a lawyer is invalid to show guilt, however before that confession is deemed to be invalid, a defense attorney must pro-actively seek to suppress it. By waiving a seemingly valid confessiona district attorney may be able to convince an incompetent, or weak-willed attorney to try and convince their client to take a plea. Additionally, in California, prosecutors can use those statements given without a lawyer to "impeach" the Defendant's credibility if the Defendant chooses to take the witness stand.
Len Kachinsky made many egregious, saddening, and infuriating mistakes, but trying to negotiate a plea bargain for a "life-top" case was not a mistake. Len Kachinsky did a basic calculation that defense attorneys frequently perform - it's a victory to get a kid a plea bargain with a determinate sentance (i.e. a specific number of years[18 in this case]), rather than life [40 years until parole]. That math is always worth a consideration because juries rarely behave as attornies hope and predict. Had Brendan Dassey taken the deal Kuchinsky tried to arrange, he would be halfway done with his sentence instead of possibly waiting until 2048 for release.
However what is inexcusable is how Len Kachinsky put a vulnerable kid in a more vulnerable position without having a firm grasp of the evidence. The actions of Michael O'Kelly, Len Kachinsky's investigator, were nothing short of criminal. It was heartbreaking to hear how he described his client's family as "where the devil resides in comfort," and it shows just how perilous our criminal justice system is - that it possible that your court appointed attorney and investigator could be actively working against your best interests. So when you finally get a lawyer, you're left hoping it's one who has your best interests at heart.
Examples of Prosecutorial Misconduct in Netflix's Making a Murderer
(1) Brady Evidence - Evidence That Is "Exculpatory."
Brady evidence is evidence that is “material either to guilt or to punishment.”. The term comes from the Supreme Court case Brady v. Maryland - and the Supreme Court ruled that a prosecutor has to turn over all material evidence to the Defense, especially exculpatory evidence. Exculpatory evidence is evidence that tends to show the Defendant is innocent, and yet Brady violations happen with a shocking degree of frequency. In Chicago, 11,000 homicide cases were reviewed for Brady violations, and 383 of them were overturned based on Prosecution failure to produce exculpatory to the defense. In California, the California Justice Commission reviewed over 2,000 cases of alleged misconduct and found Brady violations in nearly 25% of those cases. Steven Avery's original case against the Manitowoc District Attorney Denis Vogel and Manitowoc County Sheriff Tom Kocourek involved accusations of a conspiracy between Sheriff Kocourek and District Attorney Vogel to bury/hide exculpatory evidence related to Steven Avery's 1985 sexual assault and rape conviction.
(2) Poisoning The Jury Pool By Making Media Statements.
A United States citizen is guaranteed a right to the fair trial by the constiution. For Ken Kratz to parade Brendan Dassey's confession in front of the media is a prime example of a deliberate attempt to deny Steven Avery and Brendan Dassey's right to a fair trial by a jury of their peers in the county in which the crime was committed. Residents of Calumet and Manitowoc County would have had to be living under a rock to not know about the details of the Avery and Dassey cases. The DA knew the extent of the media coverage on the case, but rather than keep quite during a "pending investigation," that line we often hear, the DA described, in great detail, a confession that almost no other DA in the country would rely on for a conviction. A prosecutor should never release information to the media that is unlikely to be admissible at trial. Ken Kratz might say that his conduct did not rise to the level of misconduct because prosecutors are allowed to make statements to the media - they are simply not allowed to make illegal or false statements... and he would be partially right. But what is ignored is that it is inexcusable misconduct to repeat Brendan Dassey's coerced confession to the media as though it were fact.
(3) Closing Arguments in Steven Avery's Trial
Ken Kratz argued at Steven Avery's trial, that the evidence showed that "the murder of Teresa Halbach was committed by one man, and one man only - Steven Avery." While Kratz argued this to one jury, he argued to another jury, only a few months later, that Brendan Dassey was an active participant in the murder and mutilation of Teresa Halbach. Unfortunately, this is not technically "misconduct" but rather called "improper argument," because nothing the attorney's say in a trial is evidence, nor is it under oath... but this type of tactic should absolutely be considered misconduct, because at least one of those statements is a lie and they were represented to a jury as truth, in a criminal case, where a citizen's life is on the line. Unfortunately there is no court ruling prohibiting inconsistent statements from Prosecutors in related, but separate trials. Contradictory statements by prosecutors in related but separate trials should be considered misconduct becaue prosecutors have an obligation to the public to always be truthful.
(4) Sanctioning Bad Police Conduct
A lot of people do not understand that Prosecutors are actually elected officials. Less than 30% of voters participate in local elections, so it's not surprising that people do not know this fact. You will not find an example of a prosecutor winning an election without the backing and support of police and law enforcement unions. (They endorse, donate money, and organize votes). This may seem like a clear conflict of interest because the District Attorney must often work, on a daily basis, with the same individuals who are supporting their campaigns and cannot therefore effectively prosecute misconduct. The accusation of misconduct against the Manitowoc Sheriff's department and the former district attorney of Manitowoc County Denis Vogel is why a Special Prosecutor (Ken Kratz) was appointed in the first place - however the same bad conduct occurred. Ken Kratz failed to properly prosecute a deliberate defiance of the his order to the Manitowoc Sheriff's department to remove themselves from any investigation of the Avery and Dassey cases. They did not. The fact that any evidence was found in defiance of this order (the key, the bullet, the bloodstains), should have triggered an independent investigation into the tactics used to gather evidence in this case. If the special prosecutor then uncovered police misconduct, Kratz would have a clear duty to not present evidence resulting from that misconduct. The involvement of Lt. James Lenk and Sgt. Andrew Colburn in critical stages of evidence gathering suggested impropriety and should have been investigated. The ultimate consequence of Kratz's failure to control the Manitowoc Sheriff's Department is that a defendant had to "prove their innocence," which is something that should never happen in this country. The burden of proof never shifts from the prosecution to the defendant. Ever.
(5) Ken Kratz, Sexual Predator to Domestic Violence Victims
Ken Kratz, the six-figure, married, elected DA, living in the $350,000 house knows exactly how to win the hearts of women - by preying on them at their absolute weakest. Surely a man with such a warped moral compass would never commit a Brady violation or fail to sanction police misconduct during the highest profile trial of his career. I cannot think of a more fitting end to this man's career than becoming the poster-child for injustice in our criminal justice system. Unfortunately, Ken Kratz received only a 4-month suspension of his law license for his sexually predatory behavior and is currently practicing as a criminal defense attorney. Judging from his website, he's doubling down on his belief that he rightfully convicted Steven Avery... however it's hard to trust a lawyer whose website photo is a "selfie."
How This Can Happen To You
"You don't believe it's possible for the system to fail, until it is failing you."
Our justice system is supposed to be designed so that the benefit of the doubt always flows with the presumption of innocence, and a defendant is entitled to that benefit. In the United States of America a criminal defendant does not have to prove anything. The burden of proof rests solely on the state. Remove the presumption of innocence, and the realities of our legal system drastically depart from our ideals. If one thing can be learned from Netflix's Making a Murderer, it's that within our society, there exists a presumption that law enforcement is credible, and that presumption is stronger than the presumption of innocence that is supposed to be afforded to every criminal defendant - and that is an injustice. Please remember this the next time you are charged with serving on a jury.