Q&A: Jerry Buting and Dean Strang discuss the documentary that made them justice heroes, Brendan Dassey’s overturned conviction, and their hopes for criminal justice reform.
In case you’ve missed the true-crime train, a series of recent docu-dramas have fueled a surge of public fascination with criminal justice in America. Some may have even influenced the cases themselves. After the popular podcast “Serial” aired in 2014, a judge granted defendant Adnan Syed a new trial. And the documentary series “The Jinx” ended with Robert Durst’s bizarre recorded confession to multiple murders—which police and prosecutors found very interesting.
And then, late last year, the Netflix series “Making a Murderer” stole Christmas nationwide, as visiting relatives ignored their families and huddled in dark guest rooms, unable to stop watching how the sausage is really made in courtrooms and police precincts across America. Onscreen was a true-crime train wreck: the investigation and trials of two defendants accused (and ultimately convicted) of raping, torturing, and murdering a young woman in a small Wisconsin town.
Whether the two were innocent of the crime can’t be known, and is almost beside the point; what audiences couldn’t help but notice was the utter dissimilarity between this crime story and an episode of “Law and Order.” Instead, the cameras captured all manner of disorder, from a disturbingly compromised criminal investigation, rife with conflicts of interest and possible malfeasance, to a trial so incompetently executed as to defy belief.
And then came the news, earlier this month, that the conviction of 16-year-old co-defendant, Brendan Dassey, had been overturned. The judge cited Dassey’s interrogation as the deciding factor in his decision: The teenager was questioned without a lawyer or parent present, and his “borderline to below average intellectual ability likely made him more susceptible to coercive pressures than a peer of higher intellect.”
It wasn’t only the police who applied those “coercive pressures.” In one of the most shocking scenes from the documentary, Michael O’Kelly, a private investigator working for Dassey’s defense attorney, goads the bewildered boy into signing a confession, feeding him the details along the way.
It makes for tortuous viewing:
Dassey’s attorney then uses his written statement to negotiate a plea deal. That Dassey might be innocent of the crime never seemed to occur to his defense team.
The only heroes to emerge from “Making a Murderer” are co-defendant Steven Avery’s attorneys, Dean Strang and Jerry Buting—who seem to be the only people onscreen actually doing their jobs. Their competence and quiet outrage are the show’s moral compass, and a counterpoint to the dispiriting inadequacy of Avery’s and Dassey’s trials.
In the ninth episode, Strang offers this diagnosis:
“Most of what ails our criminal justice system lie in unwarranted certitude on the part of police officers and prosecutors and defense lawyers and judges and jurors that they are getting it right. That they are simply right. Just a tragic lack of humility in everyone who participates in our criminal justice system.” —Dean Strang
Nine years after Dassey’s trial, and a few days after news of his overturned conviction hit the wire, Pursuit‘s editors (along with a handful of local journalists) sat down with Strang and Buting for a Q&A. Below is a highlights reel of the press conference, with questions and answers edited:
Q: How big a part do you think [the documentary] had in Brendan Dassey’s conviction being overturned?
DEAN STRANG: I don’t think there’s any way to know that. Certainly “Making a Murderer” is now part of the context of Brendan Dassey’s case and Steven Avery’s case. It’s part of the cultural context. Judges participate in our culture just like you do and I do, but there’s no way to know what impact the film had.
When I read that decision, I see a very well-written, careful, restrained, thoughtful opinion that’s factually dense and cited. For every factual assertion there’s a citation. I see good judicial work, irrespective of the outcome. I’d be pretty happy as a lawyer if I had that opinion to defend on appeal. That’s a lawyer’s reaction to it, but it’s an honest reaction.
JERRY BUTING: That’s also a product of very good lawyering by his post-conviction attorneys from Northwestern University Center on Wrongful Conviction Abuse. Steve Drizin and Laura Nirider got all of those facts in the record after the fact. Nothing that’s cited in the opinion is something that came from “Making a Murderer.”
Q: What if the Averys had lived in a “gated” community? Have you ever thought about whether the case would have caught on this way?
BUTING: People often ask us, “Would [the documentary] have had the same impact if Steven Avery and Brendan Dassey were black?” The truth of the matter is, probably not. That’s a sad commentary on what motivates the viewing public and maybe Hollywood.
In a lot of ways, this was sort of a wake up call for white America. For once, they got to see the kinds of abuses that it’s been too easy to push aside and think, “Well, that just happens to the others, people not like me.” Whereas here, there is this big disparity in socio-economic class, and that’s underpinning a lot of the history of Steven Avery and the way he’s been treated in the criminal justice system twice now.
STRANG: Steven Avery probably wouldn’t have been charged or imprisoned at all had he lived in a gated community, just empirically. I mean, you have to look long and hard in America’s state prisons to find a prisoner of any real means, of any wealth, or even middle-class economic status.
I think part of the spotlight that “Making a Murderer” shines on our criminal justice system is on the role of class in the criminal justice system. In a heterogeneous society, class of course, gets linked pretty quickly to ethnicity, race, recent arrival as an immigrant. There’s an underlying role of class or socio-economic status that’s unmistakable empirically in our criminal justice system. The poor are the basic fodder of our courts.
What kind of an impact could a good, solid criminal defense investigator provide to a defense team?
STRANG: I think they’re essential in most cases, but they’ll never duplicate a police department. We don’t have the subpoena power. We can’t get search warrants.
It’s an irreplaceable role. Many cases don’t have a defense investigator, either because the Public Defender’s office doesn’t have the resources to provide that for every case, or it’s a private case and the fee [isn’t] enough to hire a private investigator.
Sometimes the lawyer doesn’t recognize the importance of defense investigation. Even when we understand the need for an investigator, we’re hampered by an asymmetry of authority and power that the defense investigation has as compared to the state investigation.
For most criminal cases, you can and must offer a counter-narrative to the prosecution's narrative, and that normally requires investigation.
The justification is … the state bears the burden of proof. The reality, of course, is that most criminal cases can’t be defended on simply standing on reasonable doubt and hoping that the jury will give that life. For most criminal cases, you can and must offer a counter-narrative to the prosecution’s narrative, and that normally requires investigation.
BUTING: Although, it means an investigator who is actually working for the defense—not like you saw from Mr. O’Kelly, not helping the prosecutor “dig a deeper hole”—as I think the federal judge commented in the Dassey decision.
Q: When I watch the video of Mike O’Kelly doing what he did, it’s infuriating. How did you feel about the work he did there?
BUTING: We did not see that video until the documentary came out. My first thought was, “Well, wait a minute. How did we not get this in discovery?” Then I realized this was the defense investigator. That was just a terribly shocking thing to see. And when I saw a pre-printed form, which means it’s used a lot. In how many other cases has that guy used this form where your only choice is, “I’m sorry for what I did,” or, “I’m not sorry for what I did”? How about, “I didn’t do it”? That was, to me, just an indefensible, unconscionable aspect of all the things that poor Brendan Dassey had to suffer through.
Q: How does Dassey’s overturned conviction affect Steven Avery?
BUTING: That’s ultimately going to be up to his attorneys, in terms of how they want to use it as a strategy. Directly, they didn’t use Brendan Dassey’s confession in Steven Avery’s trial, so the state may well argue, “Well, it shouldn’t affect him at all because we didn’t use that evidence,” but in effect they did. They used it in the press conference where a special prosecutor polluted the entire jury pool that we had to pick Steven Avery’s jury from.
The effect of that false and involuntary confession was very evident as we picked through the jury questionnaires where a hundred and twenty-nine of a hundred and thirty people believed that Steven Avery was guilty, before they heard any evidence in court. That was very clearly because of that involuntary coerced confession that the special prosecutor used to pollute the jury.
Q: Given the current development, do you almost look back and wish that Dassey’s confession had been used in the Avery trial outright, and that it could have been grounds for appeal?
BUTING: Well, yeah. Because first of all, the stories were inconsistent every time you talked to him. He couldn’t remember what he’d said, because it never happened. He didn’t have a memory to draw on, and so every time that you talked to him, the story changed. We knew that the tactics were coercive, and to pick on a sixteen-year-old with learning disabilities, and to put him through something like that, if the jury had seen that it would have bolstered our argument that, “Look at what lengths the prosecution is willing to go to try and get this man, Steven Avery.”
STRANG: There would have been more structural honesty to Steven Avery’s trial had the state introduced those statements in evidence. They were in fact, used. They were brought to the attention of our jury, but ten months before the trial started, and repackaged by a lawyer who is skilled in rhetoric.
They were repackaged from the inarticulate mumblings of a kid adopting suggestions from the police into an apparently coherent, gripping narrative, as the prosecutor presented it in a press conference. Wisconsin has seventy-two counties. There’s not one of them we could have gone to where this narrative hadn’t permeated most of the public.
Q: How confident are you that Avery will ever be a free man again?
BUTING: We’re not directly involved in representing him at this point, but I remain optimistic. In order to get back into court, he has to have some sort of newly discovered evidence. I was hopeful that when this aired, that some people would come forward with new information. And that is in fact what happened.
I’m optimistic that he does have very skilled attorneys now representing him, and that they’re putting together a defense that’s going to get him back in front of a court and that conviction reversed.
Q: Can you talk about the funding disparity between defenses versus prosecutions?
STRANG: In Tennessee, the spending on the prosecution function exceeds spending on indigent defense by two- or three-fold. That’s roughly true across the country. Of course, it’s the state that bears the burden of proof, in theory at least, not the defense. The reality though, is much more complicated, in an adversarial system where jurors and judges expect to hear two sides to a story. It’s hard to tell that second side when you’re chronically underfunded.
You can't have one side always punching above its weight. You just can't.
I’m not looking for anybody to cry a river about people charged with crimes. That’s not what it’s about. What it’s about is our interest as citizens in the reliability of convictions that often result in years and years in prison, or occasionally [the death penalty]. We’re the last Western democracy to be using death as an implement of criminal justice.
We, as citizens, have a real stake in reliability, and you can’t have one side always punching above its weight. You just can’t.
Q: Is the criminal justice system going to get any better in this country?
BUTING: I think so. I mean, if I didn’t think there was any hope, then I probably would have given up practicing law thirty-five years ago. It’s been a long, hard battle.
I do think there’s an opportunity. This is the first time we’ve got presidential candidates in both parties talking about criminal justice reform. We still have a few intransigent people in Congress blocking basic reforms, but if people continue to show an interest and hold their elected officials accountable, then I think we can reform the process a little bit at a time. It’s going to be harder for law enforcement or prosecutors to hide what really happens in a case if people maintain the interest level.
The angst that the community of Manitowoc, Wisconsin is feeling right now, if they had known they could be caught later and exposed to millions, maybe they wouldn’t have allowed the violations [and] the conflicts of interest and the lies to the public. Maybe that effect alone will cause some improvement in the system.
STRANG: I agree with Jerry that change comes. It comes most slowly, I think, when it’s left solely to the institutions that together compose the criminal justice system. There’s a great deal of institutional inertia in the police, in the judiciary, in the prosecutors’ offices and among the defense bar, but it does come in time. You do see gradual procedural improvement.
You see it come more quickly when the public forces it on these institutions. For example, body cameras, which are now rapidly being adopted by law enforcement agencies around the country: the arrival of that I think is entirely attributable to citizens simply picking up their smart phone and videotaping what they see happening.
[Change] has come very rapidly when pushed upon the system by the public. That’s part of why Jerry and I are out speaking. We’re just two voices, but it’s two more than have been speaking before. We’re trying to encourage people thoughtfully to demand change in whatever ways they’re able.
Coming soon: New episodes of “Making a Murderer,” which will follow the post-conviction phase of the cases.