January 5, 2016; WISC-TV (Madison, WI)
It’s the case that everyone is talking about for all the right reasons. By now, you have likely seen or heard about Making a Murderer, the unprecedented 10-hour documentary on Netflix that showcases what it’s like to be on trial in America and what it takes to defend an accused person. While the filmmakers intended to start a discussion about the adequacy of the justice system, many viewers instead came away with a singular sense of purpose: helping Steven Avery and his nephew Brendan Dassey out of prison.
This is a very complicated case, and we urge readers to review the documentary and transcripts in their entirety to understand how Steven Avery has captured international attention. In short, after having been wrongfully convicted of a sexual assault in 1985 and serving 18 years in prison, Steven Avery could potentially have been wrongfully convicted a second time for the murder of 25-year-old Teresa Halbach, a photographer, in 2007. In Avery’s defense, as portrayed in the documentary, there is compelling evidence he was framed for the murder by some of the disgruntled police officers who helped wrongfully convict him in the rape case.
The reality of the situation for many viewers has been too much to bear. Avery has been in prison now—potentially wrongfully convicted—for almost nine years, in addition to the 18 years from his first conviction. He has exhausted his post-conviction appeals but still has the possibility of a federal habeas corpus petition and U.S. Supreme Court appeal. However, it’s quite possible he will spend the rest of his life in prison. Since the documentary was released, two jurors have also come forward, one of who insists he or she was “intimidated” into voting “guilty” for fear of his or her safety.
In these moments, the country has turned to the Wisconsin Innocence Project (WIP), part of the University of Wisconsin Law School, which helped overturn Avery’s initial 1985 conviction for rape by testing the DNA in the case. The DNA did not match Avery, but matched another criminal in the CODIS database, proving that he did not commit the rape for which he served 18 years. It was a major victory for the WIP, as is every exoneration. However, since Avery’s conviction in Halbach’s murder, the WIP has largely turned their backs on Avery. On its website, where it lists its exonerees, the WIP tries to distance itself from Avery’s case: “In 2007, Steven Avery was convicted of murdering 25-year-old Theresa Halbach and sentenced to life in prison. The Wisconsin Innocence Project did not represent him in that case.” The documentary notes that despite Avery’s repeated appeals to take on his case, the WIP has refused for the last nine years, until now.
For the first time since Avery’s conviction, the WIP’s founder Keith Findley has said he is talking to Avery’s attorneys, who valiantly represented him in trial, and thinks it’s possible the case can be re-opened if there is evidence of juror misconduct.
As is to be expected, WIP has inspired the ire of the Internet, particularly because an overwhelming number of people have come away from the documentary believing at the very least Avery was wrongfully convicted. Understandably, Avery’s case is any wrongful conviction center’s worst nightmare: to exonerate a client only for him to be accused and convicted of murder. Largely relying on individual and private donations, the WIP and most nonprofit organizations would want to protect the integrity of its brand.
But it shouldn’t have taken the release of a documentary eight years later to make the organization reconsider if it should have heeded Avery’s calls for help. Reading the transcript of the trial, there are several points where one will find serious lapses of justice, such as the use of discredited scientific tests and testimony. While the Innocence Project has certain criteria that have to be fulfilled before taking a case, namely whether the defendant can be exonerated through DNA evidence, were those justifications for refusing to consider his case, or was it the publicity? If it was for publicity, should the possibility of losing donations supersede the mission of the organization?
The American Civil Liberties Union faced a similar organizational dilemma in the ’70s when it took on the defense of a group of Neo-Nazis who wanted to march through a neighborhood in Skokie, Illinois, comprising a significant proportion of Holocaust survivors. Donors were outraged. According to David Goldberger, the legal director of the Illinois ACLU at the time, the overall organization lost close to 25 percent of its overall membership. In Illinois, 2,000 of the 8,000 ACLU members resigned because the organization stayed true to its mission: protecting Americans’ civil rights despite the heinousness of their ideas.
However, the WIP’s decision not to review Avery’s case cannot be viewed in a vacuum. It should be noted that the documentary does not include every detail and facet of the case, as would be difficult to do. The WIP likely felt similarly to the rest of Wisconsin when Avery was accused and convicted of murder—that he was guilty.
At this point, Avery would surely appreciate any help he can receive. Whether there is anything anyone can do is another story. Many have signed petitions asking President Barack Obama to pardon Avery, but the president does not have the authority to do so. The only person that can pardon Avery is Scott Walker, the governor of Wisconsin, who has refused. There is also a high burden to prove juror misconduct and none of the recent revelations from this week would meet those requirements at this time. Could Avery’s appeals have been successfully litigated had he the aid of experienced attorneys that helped him before?—Shafaq Hasan