The Netflix Series That Enraged A Nation

The new Netflix documentary series, Making a Murderer, has become the topic of water cooler discussions, Facebook status updates, and news editorials. The documentary centers on Steven Avery, a rural Wisconsin man whose family owns an auto salvage yard. It’s a story of tragedy, revenge, and corruption. For 10 one-hour episodes, viewers are able to watch the carnage that the justice system placed on Steven and his family throughout his life. In the process, the series raises an innumerable amount of legal issues, some of which I address briefly here:

1. The Legend of Len Kachinsky

It is common to hear defendants refer to their public defender as a “public pretender.” It is also common for defendants to ask their appointed lawyer if they should “get a real lawyer.” Defense attorneys often get a bad rap, especially court appointed attorneys.

It is attorneys like Len Kachinsky that are to blame for such a reputation. Len Kachinsky represented Steven Avery’s nephew who was also charged with murder for assisting Steven Avery in assaulting and killing Teresa Halbach. Before even meeting his client, he admitted his client’s guilt to the media. He hired an investigator who went to extraordinary lengths to coerce an unreliable written confession from his client, which he then provided to investigators. He then allowed his cognitively impaired client to be interrogated without him present. He acted as though his job was to assist in the prosecution of Steven Avery.

Len’s duty was to his client. A defense attorney’s duty is always to his client. As someone who takes both retained and appointed cases, I treat all cases the same. I do not use one version of the Constitution for retained clients and another version for appointed clients. What Len Kachinsky did is deplorable and repulsive and he should be disbarred for it.  People watching this documentary need to know that Len Kachinsky is not the rule; he is the exception to the rule. The majority of defense attorneys are client-focused representatives, as they should be.

2. The Illusion of Parole

In 2002, the U.S. ruled that statutes that would impose a mandatory sentence of life in prison without the possibility of parole are unconstitutional. This has prompted changes in many state laws including in Michigan. There are now two sentencing options for juveniles convicted of an offense that requires such a mandatory sentence for adult offenders. After a hearing, the judge can either impose a sentence of life in prison without the possibility of parole or any term of years. If the court imposes a term of years, however, the minimum sentence (when they would first be eligible for parole) must be between 25 and 40 years.

The problem lies in the fact that the average life expectancy for juveniles sentenced to life in prison is only about 50 years old. Statutes that call for such a high minimum sentence make the opportunity for parole largely illusory. In the documentary, Brendan Dassey, received a sentence that would make him eligible for parole beginning in 2048. At that time, Brendan Dassey will be 59 years old. A new challenge needs to be made to Michigan’s juvenile sentencing statute and similar statutes enacted by other states. States want to give the appearance that they are in compliance with the U.S. Supreme Court’s order without actually giving effect to the heart of the ruling.

3. Our Justice System is Not Perfect

As someone who has spent time studying our justice system, I truly believe that we have the best justice system in the world. In the Declaration of Independence, our founding fathers listed among the grievances against the King, the fact that the King had made judges dependent on the will of the King making them biased and that the King had deprived them of the right to a trial by jury. Our country was founded by people who longed for a fair justice system.

Still, as well intentioned as we are when it comes to the manner in which people are tried and convicted, mistakes do happen. The Innocence Project has shown us this. The Innocence Project uses DNA testing to help exonerate people who have been wrongly convicted. To date, more than 300 people have been exonerated as a result of their work, including three people who served time on Death Row. Many of these people were serving time for sexual assaults. But, how about those who didn’t commit sexual assaults and those for which there is not DNA evidence to exonerate them? As someone who has a front row seat to see our justice system in action, I can say that I know that mistakes are made despite our best efforts to avoid such a tragedy. For this reason, I cannot support the death penalty. As it is now, there is too much room for error.

In Conclusion

All this being said, there is one issue raised by the documentary that remains for me to answer. Do I think that Steven Avery murdered Teresa Halbach? The unsatisfying answer is that I do not know. I saw only a few hours of a trial that lasted about 200 hours. To think that I could give any sort of educated answer based on that alone is absurd. The evidence the show presents was troubling to say the least and most certainly led to concerns that evidence was fabricated and planted.

I'm Calling Their Bluff

At a press conference on Oct. 12, sheriffs and prosecutors from multiple counties joined Attorney General Bill Schuette to stand united in opposition to Michigan House Bill 4138. The proposed legislation would offer presumptive release to certain incarcerated offenders. Some of these elected officials are well intentioned in their opposition. Others are just seeking to get their faces in front of the voters, jumping in front of the cameras at every opportunity to remind their constituents that they are tough on crime. There are times, however, when appearing tough on crime requires turning a blind eye to reality.

The opponents of this bill want people to believe that the legislation will, in essence, throw open the doors of our prisons to allow violent offenders back on the streets. They share stories of parolees who have been released only to commit new violent offenses, fostering a fresh brand paranoia. They ignore the fact that the people who truly pose a threat to the community, the violent offenders, will be required to continue through the normal parole process. Those offenders will not qualify for this presumption that the statute seeks to create. Their concerns are unfounded.

The legislation presumes that certain individuals are not a menace to society and, absent substantial and compelling reasons to depart from the parole guidelines, those individuals shall be granted release after serving their minimum sentence. How does this legislation ensure that we aren’t throwing violent offenders back on the street until they have served an appropriate sentence? Well, in order to fall into this category of presumptive release, an individual still must pass through three levels of scrutiny.

The first level of scrutiny occurs when the Circuit Court judge sets the defendant’s minimum sentence. The court is aware of the details of the defendant’s offense, their criminal history, their violent nature or lack of, and the risk that they pose to the community. Those offenders who have committed violent offenses and who pose a risk to the community will undoubtedly receive lengthier minimum sentences than nonviolent offenders, ensuring that they will remain in prison longer.

The second level of scrutiny occurs when the minimum sentence for a prisoner has been served. Michigan Department of Corrections Policy Directive sets a framework for giving each potential parolee a guideline score. Points are added and subtracted in eight different categories that take into account the violent nature of the offense, their prior criminal history, behavior since the time of sentencing, participation in rehabilitative programs, etcetera. Each parolee is put into one of three categories: those who are presumed to have a high probability of parole, those who have an average probability, and those who have a low probability. When the parole board receives the file of someone who fits into the high probability category, they know that this is an individual that they should probably grant parole unless they have some sort of specific information that would suggest otherwise.

This legislation would grant presumptive release only to those individuals who are presumed by the guidelines to have a high probability for parole as determined by the parole guidelines. An offender who commits a violent offense, or who has an extended criminal history, or who poses a high statistical risk, will not likely fit into that category.  Those offenders will have to continue through the normal parole process. In essence, the presumption only applies to those who are already likely to be released under the current parole system.

The third level of scrutiny occurs after the parole guidelines are scored and it is determined that an offender fits within the presumption. The presumption does not give that offender an automatic right to be paroled. Instead, the parole board must still review the file and determine if there are substantial and compelling reasons not to grant release. These reasons may include exceptionally poor behavior in prison, evidence of substantial harm to the victim that was not available at the time of sentencing, threatened harm to another person if the individual is released, pending felony charges, or if the prisoner has been linked to an unsolved criminal violation. If the parole board finds that a substantial and compelling reason exists, then parole may still be denied.

Only after passing through these all three of these levels of scrutiny is an offender released under the new legislation. The purpose of this legislation is not necessarily to release more prisoners but rather, to streamline the process and quell the backlog of cases. These non-violent offenders, who have already been earmarked as likely to be released on parole, are being held longer than necessary simply because the parole board is backlogged. The result is millions of dollars in additional funds going to incarcerate individuals unnecessarily. 

What will this legislation do for the state? The Michigan Department of Corrections estimates that the legislation could reduce our prison population by 3,200 in five years and save $75 million annually. The state already spends over $2 billion each year on corrections.

Furthermore, it is no mystery that rehabilitative efforts are better achieved through services available in the community and not in the prison system. These low level offenders are not serving life sentences. They will be released from prison at some point. The best chance of ensuring that they do not reoffend is to get them into rehabilitative programs as quickly as possible. That being the case, does it make sense to keep these offenders penned up with the violent offenders rather than putting them where they can receive the rehabilitative services that will prevent them from reoffending? Let’s take the money that we would have spent incarcerating them unnecessarily and spend it on rehabilitative services or on vocational programs. Perhaps the money could be reallocated to help create new educational opportunities in our children’s schools that will in turn help to prevent crime in the future. Or, would we rather just continue to spend the money incarcerating individuals who don’t need it just because the parole board can’t keep up with the backlog of cases?

In short, don’t fall for the political subterfuge that takes place at these press conferences. Your legislators are not going to put your community in danger with this legislation. They are doing exactly what you elected them to do: to cut unnecessary spending and reallocate the money where it can provide the greatest benefit.

What to do about guns?

     Just this month, another school shooting made headline news around the country. This time, Umpqua Community College in a small Oregon Community was shaken by gunfire. As with every mass shooting, a furious debate about control was sparked. Politicians vowed to change the laws. Statistics are tossed around from every side of the issue. People curse the NRA and others quote the Second Amendment. The problem is, nothing we can say or do will stop the shootings.
   
     As a criminal defense attorney, I have been involved in many cases involving firearms. In most cases, the firearm in question was not purchased at Bass Pro Shops or Cabelas, nor was it purchased from a gun show. Rather, the gun was purchased on the street for a hundred bucks from a guy that my client only knows by his street name. When the police run the gun's serial number, they will frequently find that the gun was reported stolen more than a decade ago. In one case that I worked on, the gun was determined to have been stolen from a police department.

     I agree that we need to do what we can to limit access to firearms for certain classes of individuals, including those with mental health issues. Even so, we can close gun show loopholes and change regulations regarding background checks but based on my experience with violent offenders, it is not likely to do much to reduce violent crime. The simple reason is because those who commit violent crimes generally do not obtain their guns by lawful means. All the gun control in the world will not stop someone from getting a gun if they really want one.