November 7, 2023 • 63 mins
Sara and Jim welcome high profile trial attorney Jerome Buting to talk about defending a case with pre-trial publicity. They discuss Jerome’s defense of Steven Avery, the flaws in the criminal justice system, as well as the lasting impact of the docuseries ‘Making a Murderer’. Later, Sara and Jim offer a couple of parallels to what Jim has experienced during and after the Alex Murdaugh murder trial. The episode ends with Jerome’s thoughts on our ‘jail and bail’ system.
Art – Simon & Associates
Music – Caleb Fletcher
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Music – Caleb Fletcher
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:22):
Hello, and welcome to the PresumptionPodcast. I'm Sarah. Sorry. One
of your co hosts and with meis Jim Griffith Hey, Sarah Hey,
and Matt our wonderful producer, MattFondelier. I found you last name correctly.
You did it. I did it. And we have a very special
guest with us today, a dearfriend and colleague who I know from the
(00:47):
National Associational Criminal Defense Lawyers, JeromeBeing, who goes by Jerry. Jerry.
Welcome, Thank you, good tohave you. Thanks so. Jerry
as a partner in the Brookfield,Wisconsin law firm of Butting, Williams and
Stilling. He received his lawy degreefrom the University of North Carolina Chapel Hill.
He's a past board director of theNational Association of Criminal Defense Lawyers and
(01:10):
the recipient of the twenty seventeen andACDL Champion of Justice Legal Award, and
also the past president of the WisconsinAssociation of Criminal Defense Lawyers. He was
a trial public defender for nine yearsin Milwaukee. Presently in private practice.
His entire practice is dedicated to criminaldefense, where he does both trials and
appeals. He's accused in many serious, high profile trial cases, including the
(01:34):
Stephen Avery case, which is goingto be a big focus of ours today,
as shown in the Netflix documentary Makinga Murderer. He lectures worldwide and
has frequently sought after for his knowledgeof the criminal justice system, the use
of expert witnesses, DNA, andother forensic evidence. His first book is
Illusions of Justice, Illusion of JusticeInside Making a Murder in America, Broken
(02:00):
System, which was published in twentyseventeen. I guess better late than never,
you know, Jim, and Iread this book, and I,
as you know, Jerry, Iposted on social media encouraging everybody to read
this book. I don't know whyI hadn't read it before. It's phenomenal,
and you just impart so much wisdomin it. A lot of it
has to the Avery case, butyou mentioned other cases as well, and
(02:23):
so I just kept telling Jim whenI was reading this book that there's so
many parallels that I was seeing betweenthe Avery case and the Murdock case,
which is Jim's case with Decarpulian,from your relationship with Dean Strang very similar
(02:43):
to Jim and Dick's relationship, andalso just how dynamic your collaboration was in
this case. Like you say,I do that too with other trial lawyers.
The collaboration is a force multiplier,just very much. I just kept
telling Jim, you got to readbecause if for nothing else, there's so
many similarities. So I want tostart with Obviously I did. By the
(03:07):
way, it was great books herein great I was going to say it
probably would cause you PTSD flashbacks,and there are a lot of things in
there that rang true for sure andmy experiences, but I downloaded on Kindle
and I read it on my iPhoneand it was a great, great read.
So look, we're the Presumption Podcast. We started this podcast. It's
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now become a brand because there wassuch a big hole in media, you
know, from our perspective, everythingwas sort of leaning towards guilt. And
there's an entire chapter in your book, Cherry on the presumption of innocence.
And you know, my favorite quotein this book is from Dean that,
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all due respect, Council, thestate is supposed to start every criminal case
swimming upstream, and the strong currentagainst which the state is supposed to be
swimming is the presumption of innocence.But that doesn't always happen. Tell Us
more about what he meant by this. Well, believe it or not,
that was completely unplanned, just sortof the comment just flowed from Dean,
(04:15):
as so many eloquent things do.It was at the beginning of the trial
when the state, for I don'tknow at that point ten months, had
charged Stephen avery was sexual assault andfalse imprisonment based solely on his nephew Brendan
Dacy's confession, which was we believetotally bogus, and they without actually the
(04:43):
state calling Brendan Dacy. They hadno evidence to be able to prove it,
and so we moved to dismiss thosecounts before the trial began, and
the state agreed, and then Deanasked for a curative instruction in essence that
would explain to the jury that theyhad that he originally the information originally included
(05:08):
additional counts, but the state dismissedthem. And that's when Kratz goes,
well, if the state's going tohave to start off this case swimming upstream,
then maybe we won't dismiss it.And then Deans stood up and gave
that eloquent quote. Yeah, sohe pulled from Kratz as the prosecutor was
(05:29):
the prosecutor, so he pulled Kratz'sstatement and tied tied in the presumption of
innocence is what I yes, SoJim, you have to just jumping right
there. Jerry, there is anotherchapter in your book titled presumed Guilty,
and I guess we'll get that getto that momentarily. But it's not always
(05:50):
the state it comes to court andthe defensive is presumed innocent, right.
I mean, it's as you writein your book, the state really has
the benefit of a presumption of guilt, you know, and it's really hard
to get the juries to to youknow, engage in the burden that they're
required to. You know that that'sparticularly true in high profile cases that get
(06:16):
pre trip publicity. Right. Butyou know, I think all defense attorneys
know that even even if the jurycomes in and it's it's a case that
nobody's heard about, they start offwith the thought that, well, you
know, what's this guy doing sittinghere? If the case got this far,
if he's being charged, he's goingto trial, he must have done
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something wrong, right. You know, that's I think a unfortunately too common
viewpoint that jurors start off the casewith and you know, at least in
cases where they're not so polluted bypre trip publicity. I think you can
overcome that as a defense attorney andwith help from the judge explaining to them
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that you know, whatever they thinkyou know coming in, that he is
presumed innocent and that you know,the state's burden is completely different at this
point. But it is very,very difficult in this day and age with
pre troup publicity. And then youadd an additional layer of social media where
people get a lot of information.Some younger people get all their information from
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social media, it seems, soit is very yeah, and social media
doesn't have you know, mainstream mediaat least there's some sort of you know,
standards around rules and standards and thesocial media, you know, these
are just sleuths and regular people andthey start creating and adding and inserting and
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misrepresenting, and it's incredibly dangerous becauseit just has you know, such just
vast breadth. You know, justbecause it's retweeted doesn't make it true,
you know, exactly. So let'stalk about you know, one of your
big high profile cases, Stephen Averycase, and you know, it was
a subject of the Netflix documentary makingof a murderer, and I was one
(08:11):
of the millions who binge watched itduring COVID, and so I think a
lot of people did did play onNetflix. But you know, there may
be some people out there have notheard about Steven Avery case, but just
a tell us a little bit aboutit and how you got involved in how
you and Dean ended up working togetherin that case. Sure. So Stephen
was wrongly convicted, spent eighteen yearsin prison for a sexual assault. He
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later was exonerated and had the luckthat the the crime scene evidence or some
of the crime scene evidence that linkedto the perpetrator not only excluded him by
DNA, but also was a hitwith somebody who another local law enforcement agency
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had believed was the suspect all along. So Steven gets out after eighteen years,
and as it starts to come outthat there's information that the state knew
about in that case all along.They knew about this other suspect, they
did not tell the defense, andit looked like there was some deliberate manipulation
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of the evidence and hiding of theevidence. He filed a thirty six million
dollar lawsuit against Manitowac County and theManitoac County Sheriff and district attorney who prosecuted
his case. Two years later,he is surprisingly arrested and charged with the
murder of a twenty five year oldphotographer woman who took pictures for Auto Trader
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magazine. One of these little thingsyou'd see in the grocery store where people
could take pictures of their car andadvertise it. And it caused a huge
uproar in all over the country andin the innocence community, the Innocence Network,
community organization. Innocence organizations were afraidthat people were going to say,
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oh, look what happens if weif we let people out, even if
they're wrongly convicted, Look what's goingto happen. They're going to go off
and murder people. And so itdrew the attention of the New York Times.
It was on the front page ofthe New York Times, and it
therefore drew the attention of these twofilm students from New York to come out
and look at it and see,you know, this might be kind of
(10:33):
an interesting sociological study. We'll talkprobably a little bit more about that later.
But we were not. Dean andI were not originally retained until about
five months after he was charged hislawsuit for thirty six million dollars settled for
(10:54):
four hundred thousand, a pittance foreighteen years. But he used that money
to pay his civil lawyers for thecivil rights case the expenses that they had
incurred, and then use the restof it to hire private criminal defense attorneys,
myself in Dean Strength, and wewere both recommended by various sources,
and so ultimately that's how the twoof us then took over and represented him
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from March of twenty or two thousandand six until the trial was done about
a year later. Well, there'sanother parallel right there between Avery and Murdoch
that you know in your book yousay when you do the math, you
were getting paid like nine bucks anhour because you didn't you didn't get paid
enough, you know, I meanafter paying the expenses on the civil lawsuit
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and then you know, paying youguys. But you know, like Jim
and I have talked about this withother guests, we have to see through
matters and even if the client runsout of money, you know, or
the money's not enough, and soit's something that we're all familiar with in
this in this book, and youknow, the overall Avery story which you
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really sort of portray the flaws andthe failures of the criminal justice system.
And it ranges from everything from junkscience like the hair analysis used in Avery's
prosecution, to DNA that you know, debunked that junk junk science that the
prosecution had previously relied on. Uh. And then there's like defense counsel misconduct,
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false confess confessions. UH, andthen just to like straight up lack
of physical evidence. So tell usabout what some of these travesties and flaws
were in your case and how thesystem failed with respect to them. Well,
you know, the one thing youdidn't mention is Brady evidence and which,
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which for listeners is uh. TheUnited States Supreme Court ruled that the
government the prosecution must turn over anyinformation they have through them, either in
the prosecutor's office or through the lawenforcement agencies that the material evidence that's potentially
exculpatory evidence pointing to a defendant's innocenceor even mitigates through the offense. And
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the problem with that is is ina criminal case that you don't know what
you don't know, And time andtime and time again, we find years
or even decades later, as happenedin Stephen Avery's first wrongful conviction, that
the prosecution withheld evidence from the defenseand his current Stephen Avery's current attorney is
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dealing with that very issue now.So you know, you mean on appeal,
on appeal, on appeal, there'sinformation that that Dean and I were
not provided that might very well havemade a difference in the prosecution and defense
of the case. Pre trop publicity. We talked about a little bit.
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That's a problem. Yeah. Youknow in your book you describe a press
conference that was held by I guessthe prosecutor and the sheriff after after there
was this core so called confession fromthe nephew, Brandon, And you know
my experience, I thought, that'sa no no that you don't go on
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national TV or local TV and talkabout someone's confession. I mean, that's
just and that just poisoned the wellright there for you. Sure, I
mean you're talking about by by thenephew's own lawyer. No, no,
no, the prosecutor. Oh yeah, they had daily pressers right well,
that didn't come, that didn't happentill the trial. What Jim, I
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think Jimmy, you're referring to thepress conference when Brendan Dacy was actually first
charged in March two thousand and six. Yeah, and you're right. I
mean the you know, there areaba standards, ethical rules that specifically for
prosecutors that tell them they are notsupposed to discuss in detail publicly outside of
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a court setting a suspect's confession.Here they not only discussed it, but
the prosecutor, Ken Kratz, gavethis unbelievably you know, Dean and I
often have said that frankly, thatwas his best closing argument in the entire
prosecution, except that it wasn't basedon facts. It was it was completely
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made up, there was no evidenceto support it, and never and in
fact that that confession never even camein to Steven Avery's trial because they were
not able to get Brendan Dacy toflip and become a state's witness because he
immediately recanted what they claim he said. But yeah, so the prosecutor calls
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this press conference and begins it bytelling people that if there's anyone under the
age of fifteen in the room,they should probably leave. And what does
that do you know that just makesyou turn the volume up. Oh this
is gonna be good, right,I'm lean, yeah, exactly, And
then he tells this this powerful,emotional story that was a graphic rape,
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torture, murder, stabbings, slats, slitting her throat, shooting, you
know, all of these things whileshe's begging for her life. I mean,
just horrid, horrid description of ofwhat supposedly happened. And when I
heard that, I thought, youknow, they made it sound like he
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had been the nephew, The sixteenyear old developmentally disabled at least limited nephew
had been harboring this guilt of whathe and his uncle had done for months
and finally just came out with thisnarrative, you know, oh, this
is what happened. Well, whenyou actually looked at the confession, it
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was completely different. It was allof the story came from the police,
not from him. His answers were, you know, monosyllabic. Yeah,
I remember that, I remember thatscene. I don't know. And they
strung it together in a story thatwas so powerful that one of the television
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reporters who later went to law schoollater told me that he was so grossed
out by hearing it that he wentoutside the court house where the press conference
was and sat in the TV truckfor a while and called his parents to
just try and you know, talkthrough this this horribly inhumane thing that he
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had heard happen. And you mentionedin the book that one reporter you know,
asked, well, there's a forensicevidence backed this up? And cats
made a dodge and you know,just to right answer the question, right,
that's right. One reporter was youknow, smart enough to say,
well, now, is there anyDNA evidence that backs this kid's story up?
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And suddenly Kratz became COI and didn'twant to like, oh, we're
not going to talk about that rightnow, you know, we want my
story. Well, then later whenwe got the discovery in the case,
which was about two months later,we discovered that at that very moment,
the day they did that press conferenceand told that whole story, they already
knew from the crime lab analysis ofthe crime of the supposed crime scene,
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Stephen Avery's residence, that there wasnothing to back it up. There was
no DNA, not a single cellof DNA of hers was ever found inside
that that trailer, you know,which would have been a bloody scene I
mean, and they examined it carefully. They they ripped the carpet off the
floor, they peeled the paneling offthe wall, and they looked for any
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evidence and found nothing. And theyknew all that when they told the public
this this ridiculous and horrific story.And at the time, you know,
Stephen was in custody, he wasin jail, he's already charged, and
the public is hearing this so calledconfession from the prosecutor, which ABA rules
prohibit. And then fast forward,you know you're in a hearing, and
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Jerry, you and I share thisexperience, and I think any crumbin defense
lawyer out there who who's had ahope high profile case can relate. You
go out and talk to reporters aboutwhat you just said in the courtroom,
and then you get a nasty letterfrom the judge saying, oh, be
careful, mister booty, you're violatingthe rules on pre trial publicity. I
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mean, it's just not just notfair and balanced out there for us.
I'm telling you, as you knowright, well, yeah, Jim,
Jim got in trouble because he tweetedliterally a Washington Most article. You didn't
even say anything about it. Hejust retweeted someone else's article my cross examination.
Yeah, and then he got hegot, he got the spanking.
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So I'm gonna I want to talkto you about the media in your case.
I mean, it played a hugerole, right you're you're you know,
aside from the staircase, uh documentary, it seemed like, you know,
this was a very unique circumstance whereyour trial prep was followed, you
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know, uh. And you know, it's very different than you know,
having cameras in the courtroom for thetrial. This is like pulling the curtain
back so that people could see whatgoes on before. So it was it
was a big deal. It wasunprecedented. Did that ultimately help hurt and
why? Well, it ultimately hadno effect whatsoever on the trial. We
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i had never participated in anything likethat before, and we thought long and
hard about it. We thought,you know, you're right. Other than
the staircase, which almost nobody hadseen back then because it was on you
know, mail order DVDs was aboutthe only way you could really see it,
there had not been a perspective ofwhat it's like for the defense council
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to prepare for a you know,very serious crime like this, or defense
of an accusation like this at trial, and so we thought it would be
educational if anybody ever saw the documentary. We of course never expected it to
have this kind of exposure globally.It was not a Netflix project at the
time. It was two film students, graduate students from New York University.
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But if you know, we onlyhad two conditions, one of which is
kind of laughable now that I thinkabout it, but one of them was
that they not record, They wouldnot be privy to any direct attorney client
discussionable we had with our client,Stephen. But the other was that they
not air anything, not even atrailer, before Steven's trial was done and
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Brendan's trial was done, which Ihad no idea how long it takes to
in post production, you know,to put something like this together, much
less sell it. And at thattime there was not even a streaming market,
so that never happened. Nobody eversaw any of that behind the scenes
stuff. But Kratz, the prosecutionknew it was going on, and in
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fact, although after making a murderercame out, he claimed that the producers
had not given the state the sameopportunity pre trial to work with him,
and they there's a letter in thefile specifically says yes, we want you
to do this. They were offeredthe opportunity and didn't. Instead, about
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two months before trial, the prosecutorsubpoened the filmmakers with all of their footage
and they had to go out andagain they had no financial backing. Really,
they were just students. They hadto out hire a media lawyer to
defend their First Amendment rights and ultimatelythe subpoena was quashed. But I suppose
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that was the closest you could cometo, you know, a potential way
in which our participation might have backfiredif the prosecution had got a hold of
that before trial. But there werealso daily pressers which were really unusual.
Can you tell us about how thatstarted? I think the prosecutor started it,
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and if that was something a toolthat you could use to kind of
change the narrative in any way.Sure, so, you know, again
I had never done anything like thatwhile a trial is going on either.
But the prosecutor announced to us andthe judge and chambers like the Friday before
the trial that the media had contactedhim and wanted to do daily press conferences
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with him, and that he haddecided, oh, I'm not going to
do I'm gonna only do every otherday, and Teresa Hallbach's brother would do
the alternate days. And we said, we wait a minute. You know,
he had already been making E've beeninterviewed a lot by the media before
trial, and was clearly just anagent of the prosecution. And so ultimately
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we came up with a compromise whereall of us would do press conferences at
the end of each day, butthat no topic, no questions would be
asked about what was coming up,and that we could talk about what had
happened during court that day, onthe theory that this jury wasn't sequestered,
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as most are not these days,and they're told not to watch the TV
and search on the internet. Butif they had violated that, they at
least would only hear what happened,but mostly what they already heard in court
that day. And so we hadthese press conferences every single day, and
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as the trial began, the mediaknew nothing about the Again, the only
narrative they had heard was this horrificpress conference that the prosecution gave at the
beginning of our representation. And afterthat we were essentially under a sort of
a pseudo gag order, and sowe could not present the defense side the
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fact that there was no corroborating evidence, for instance, and so they didn't
really know much until the trial started, and then through cross examination all of
a sudden in the first day theycame up to me after and said,
wow, this we thought this wasa slam dunk case. This is this
is there's some really interesting issues.And so the media during those press conferences,
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I think became they asked a lotof good questions, frankly, and
they learned a whole different side.And what I was able to do sometimes,
and I've done this part in othercases where I've had high profile media
coverage, is during a break inthe action, you mean, you know,
I may be cross examining an expert. Let's say, I would go
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and talk to the reporters and sayand sort of use them as a sounding
board. Did you did you getwhere I was going? Did you understand
this point? Because if they didn't, then the jury probably didn't either.
Most of the reporters were more educated, frankly, certainly in this case.
And so then we would go backinto court I would sort of let me
go back for a minute and followup, And so we used them as
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almost a mock jury in real time. And so there's a little bit of
that with the with the press conferenceas well that we could fine tune the
next day if it looked like fromtheir questions they weren't really getting the points
we were trying to make. Itwas a good gauge. Like now we
go on Twitter to see what peopleare thinking or saying, and to have
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that directly from reporters is great.I think Jim wants to get into DNA
because we have a lot of ourviewers, you know, are fascinated by
DNA and now genetic genealogy. Soturn it real. They're switching gears a
little bit. You know. Iknow, the DNA exonerated Stephen Avery after
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eighteen years, and you write inyour book how DNA has has has really
debunked a lot of the forensic evidencethat was used to convict a lot of
people. And when I say bitemarks, hair analysis, shoeprint analysis,
and and all the most unreliables eyewitnesstestimony, and you know, can you
can you address that for us please? Jerry? Sure? So you know,
(27:56):
I went as testimony is a littlebit different than and some of the
other junk science. I'll call ittypes of evidence. But uh, you
know, we we knew even beforeDNA, psychologists had already been studying the
the fallibility of human memory and humanidentity ability to make identifications, particularly cross
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racial. You know, the mythsthat I'll never forget that face, you
know, and you know when thegun is pointed at me, and you
know, all these details are somehowburned in your memory. Psychologists has had
already proven long before DNA, instudy after study after study, that those
were myths, and often it wasjust the opposite. And in Steven's case,
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the first conviction was was assault caseright, and the victim had identified
him right, wrong, right,that's right. And and you know,
to her credit, she you know, she she felt horrible when she discovered
that he was exonerated and that shehad she was very certain in trial that
he was the guy, and sheidentified him. It turns out that the
(29:08):
identification process they used with her wassort of deliberately skewed to try and get
her to pick Stephen because of malicethat the department had against him. But
once DNA happened. And this isan important thing that the viewers and listeners
(29:29):
need to know. Almost all ofthe so called forensic sciences did not come
from another application in the world.They were created by the law enforcement and
by prosecution. They're really the FBICrime Lab was the brainchild of j Edgar
Hoover back in the thirties, andthey were designed to try and give a
(29:53):
more objective basis for jurors to decidecases that used to be he said,
she said, or eyewitness identification.They would then bring in these experts of
the so called you know, labcoat effect that jurors would then be told,
Aha, this gun matches, orthere's this blood spatter, or this
(30:14):
hair is similar, and bite marksand all of this stuff. It was
those disciplines, those scientific disciplines werenever used in any other real world practice,
unlike DNA, which came from medicineand biology and basic research. And
so when DNA burst onto the scene, it ultimately proved that case after case
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where people had been certain from eyewitnessidentification or from bogus, FBI created types
of science like hair microscopic hair comparison, or bite marks that in fact those
people were innocent that DNA proved theywere innocent, not just a reasonable doubt.
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And so really in the nineties iswhen that started to change, and
then the you know, the InnocenceProject in New York started, and you
know, unfortunately there's a lot ofcases where DNA cannot answer it because the
either prosecution or i should say lawenforcement didn't collect the evidence, or the
(31:25):
case is so old it's been destroyed. And you talk about another case that
was impactful to you, it's thatRalph Armstrong case that you finally after twenty
years, you know, trying toget him exonerated, you know, twenty
nine years. Yeah, so it'sa I mean, I know that was
rewarding, but it's also frustrating toknow that he had to spend twenty nine
(31:48):
years in prison before you know,the truth came out, right, Yeah,
and fifteen of those years I wasworking on the case. So,
you know, people get frustrated whenthey see how long post conviction processes for
Brendan Dacy or Stephen Avery. Andyou know, again that is part of
the one of the flaws of oursystem is that that it is so difficult
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to undo a wrongful conviction that thisthe belief that a judgment should be final.
This you know, doctrine of finalityas lawyers would call it. Uh
get is is worshiped so much thatit it trumps the evidence that points to
(32:32):
a wrongful conviction and it makes itvery very hard to reverse convictions. Is
Armstrong the case that shack So thatwas a case where that was the case
for that's so old that that thetelevision series Mash featured as part of the
(32:54):
timeline of you know when witnesses werewatching Mash and that's but it wasn't in
syndication. This was in its firstrun. It was a nineteen eighty case.
It's that all Mash makes me feelold. So in that case,
there really wasn't any forensic evidence.There wasn't much at all tying Armstrong to
(33:16):
the offense. And you know,there was interesting thing that was about it,
right, It was a very verythin, circumstantial kind of case,
and it was it was a landmarkcase because they had the police had used
hypnotism hypnosis on the only witness whosaw a suspect going into the victims apartment
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building, and they used all theseunbelievably suggestive procedures, including having pictures of
my client's car in the room whilethis guy is going through hypnosis, and
he looked at them. They tooka break and left him alone with him.
(34:00):
They did record it on a videoand it's an ancient vhs A.
And that case ultimately went to theWisconsin Supreme Court on direct peel, and
the Supreme Court said, well,henceforth and forever more, no hypnotized witnesses
are going to be allowed unless thesespecific procedures were followed. But in Ralph's
(34:25):
arms Armstrong's case, you know,it didn't matter, no harm, no
foul, So it didn't help him, even though it became a landmark case.
What was the purpose of the hypnosis? I'm sorry to get hung up
on that. This is fascinating tome as somebody who doesn't like all this
stuff. You know, this witness, who was really kind of a bit
(34:45):
of a flaky guy himself, wassitting on the porch next door and said
told the police gave a description which, as it turns out, was off
by six or eight inches from whatMike Ralph Armstrong's actual height was and during
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the and so the he couldn't actuallygive much more detail than that, And
so they said, well, let'slet's hypnotize you and see if you have
a memory you just don't remember,and in the memory you could or in
the in the tape, it's unbelievable. You can actually hear when he gives
(35:28):
the height. I think it wasmedium. What do you mean by medium
about? Like me, Well,how tall are you? I'm five six?
And you can actually hear the detective, who by the way, should
not be in the room, leanover to the hypnotists and say, suspect
fuller, the suspects taller. Youcan actually audibly hear that whispering. And
(35:49):
then he starts, you know,leading the witness that the hypnotist starts leading
you know, could he be taller? And you know, so that was
the purpose of god hypnot you know. On that note, there was you
know, you know, this sortof law enforcement stuff, but there was
also attorney misconduct defense attorney miss conductin this case with respect to Brandon brand
(36:15):
Yes, Brandon, yeah, Iremember when I was watching this guy in
the documentary was I was so angry. I just wanted to like punch some
TV screen and punch him, youknow, tell us what he did and
ultimately were there any consequences? SoOkay, So this is an attorney by
(36:37):
the name of Lynn Kachinski. He'snamed, and you see him in the
documentary, and he was appointed bythe Public Defender's office to represent this sixteen
year old boy, and before hehad ever Some of this didn't come out
until later on Brandan's own appeal infederal court when they produced his time records.
(37:00):
Because it was a public defender appointment, he had to keep his time.
And it turns out in the firstmonth of his representation, he spoke
to the media thirty two times andvisited with his sixteen year old client who's
charged with murder once and before hehad even met with his client or talked
(37:22):
with them at all on the phoneor otherwise, he gave an interview television
interview in which he says, obviously, what this young man did is morally
reprehensible, and you know, hebasically confessed his guilt without ever having talked
(37:42):
to his client. Then about amonth or two later, the police wanted
to interview Brandon again because they knewthat some of the story he was telling
them that they were feeding to himand he adopted, didn't fit, and
so they wanted to talk to himfurther, and they really wanted to get
him to flip as a state's witness. And so this this defense attorney essentially
(38:10):
colluded with the prosecution. There isan email between him and I believe it's
one of the law enforcement, ifnot prosecutors, saying, well, let's
wait until after the judge rules onmy motion to suppress his confession, and
at that point he'll be essentially he'llbe weakened because we're going to lose.
(38:36):
And that's in fact what happened.They had the hearing challenging the confession as
being involuntary, and the judge deniedthe motion to suppress, and then at
that point, this defense attorney sentin this investigator to go talk to him,
(38:58):
ostensibly to do a polygraph with hisclient in the jail. But and
you see this, it's actually videorecorded and in the documentary. And when
I first saw this, in fact, I thought, wait, wait,
wait, wait a minute, I'venever seen this before. First time I
saw that video with this this guyO'Kelly was when making a murderer came out,
(39:22):
and then I realized, oh,you know, they didn't the prosecution
didn't have to turn this over.They didn't even have it ostensibly it was
created by the defense and this guywho is supposedly working for the defense attorney
on behalf of Brendan courses him intotrying trying to get him to confess as
(39:45):
bad or worse frankly than the copsthemselves. He you know, he has
Brendan write out this statement and thenhe looks at it and he reads it
and he says, well, youknow, is Teresa in there, because
you know, his statement is heknows nothing about this really, and he's
like, no, well then Ican't help you. Do you want to
(40:05):
spend the rest of your life inprison? You know, you can't do
it. And he's, you know, on and on like this with this
sixteen year old kid. So afterhe gets him to change his story,
and that's when you first you seethis little stick drawing where you know,
the woman is supposedly you know,spread eagle on the bed. He then
(40:25):
this investigator then calls the detectives andsays, it went very well, we
should you should talk to him now, and they set up this the very
next day. And on the verynext day, it just so happened that
the defense attorney was in had trainingfor the Army Reserve. I think he
(40:49):
was a captain and he had hisannual training and so he said, oh,
go ahead, interview my client withoutme being wow, this guy.
Did this guy get despar or pleasetell me. I'll try and get to
the end of this quickly. Sowhat happened? You know? He goes
in, they do this other interview, and in this interview they're really challenging
Brendan because it's like, you know, this doesn't fit this you're lying to
(41:13):
us. Now they're they're sort ofadmitting it. And shortly after that,
Brendan tried to fire his a defenseattorney and the judge refused, said,
well, you know, are youfighting with them? No, Well what's
the problem. Well he thinks I'mguilty. Well that's not good enough.
(41:35):
I'm not going to give you anew lawyer for that reason. But then
the public defender, the state publicdefender, found out that this guy that
they appointed allowed his own client tobe interviewed by the police sixteen year old
boy charged with murder and rape,and they suspended him his certification to handle
(41:57):
homicide cases. And that really forcedthe judge then to remove him because if
it went to trial and he's convictedwith a guy who's not even certified to
handle homicides anymore. You know,that would be reversible error. But uh,
Kochinski fought the public defender and hedid it like an administrative appeal of
(42:19):
his suspension and ultimately got I thinkhe was suspended for six months and then
reinstated to handle but by then hedidn't remove from Brendan's case and moved on
to other clients. Oh my god, and he was I mean, he
was literally working with the prosecutors.It's crazy. And then he's later becomes
(42:43):
a judge. I gotta say,watching Sarah's reactions to your stories is I
feel like I'm watching Sarah watching ahorror movie right now. They're just like
what I remember when I watched documentary. I was like, wait a second,
Like I had to put on pauseand go who is he working for?
(43:06):
Like I literally was confused and thoughtmaybe he's part of the prosecutions team
because this can't be And I waslike, holy shit, this guy actually
is the defense lawyer. So yeah, and his defense, by the way,
his argument is well, you know, he was trying to cut a
deal for his client. He wastrying to get him to cooperate to get
a deal for him. But youknow, when you got a client who's
(43:29):
maintaining that he's innocent and that thisis a false confession and that he recants
from the very beginning, and youdon't even do the investigation and allow him
to be interrogated again by the police, it was that's a pretty egre was
and that poor kid was you know, he was I don't know, delayed
or challenge or where he wasn't evenI mean, he could barely articulate,
(43:50):
you know. It was so itwas so hard to watch. Anyway,
Jim has an important Murdoch related butyeah, yeah, you know, Jerry,
when I was reading your book,you described the situation. I think
the guy's defendant's last name is Oswald. Oh yeah, yeah. You're handling
the appeal and and you're reading thetranscript of you know, the jury selection
(44:14):
and and and that some juror comesup to be vordeer to ask questions and
have you heard about the case?And the juror says no, I really
hadn't heard about the case until Igot here. And we're all back in
the room. Everyone's talking about thecase, and they're not supposed to be
talking about the case. And sothe lawyer then asked the judge to requestion
that the jurors had been qualified tosee what they've learned during the jury selection
(44:37):
process, and the judge refused,it wouldn't allow it. And then the
defendant gets convicted, and and thenyou get on board and you do what
we recently did in the Murdock case, go out and start interviewing participants in
that jury selection process. And itturns out that one of the jurors,
one of the the citizens who camefor jury duty did not get selected,
(45:00):
told you that, yeah, wetalked about it. And then one of
the guys who ended up on thejury says, I believe he's guilty,
and and hid that opinion. Andand you tried to get a new trial
on that in the in the Wisconsinstate courts, appellate courts, and you
were denied and then but ultimately youwere able to succeed. And if you'll
walk, you know, our viewersand listeners through that that whole process,
(45:21):
and you know we're about to startdown that journey in the Murdock case,
and you know, so if youjust give us a roadmap, if you
don't mind. Sure. So thatwas again a very high profile case,
unusual in the fact that the therewas it was a bank robbery, and
then a police captain was tragically shotand killed in the escape. This was
(45:47):
a father's son, very very strangedad that had really sort of brainwashed his
eighteen year old son for his entirelife. And so any as they're fleeing
this robbery and murder of a policeofficer, some enterprising reporter and photojournalist was
(46:12):
listening on a scanner and heard thatthey were setting up a roadblock to try
and catch these guys. And thenhe got there and was able to film
as these two suspects hit this roadbockand there's a shootout like Bonnie and Clyde
videotaped, and then it is justlike this exclusive, you know, gold
(46:35):
mine for the media, local media. So they play it over and over
and over in the nightly news everysingle time the case was reported on it
all they would show this clip.And so during the jury selection, which
again I took over on appeal,this one juror claimed, you know,
they'd gone through four days of juryselection, they'd only got into around fifty
(46:59):
jurors. They still have had anotherhundred. And on the last day suddenly
they for the first time found somebodywho had not seen the video on television
and that's what you're referring to.And he says, no, no,
I really, I really don't followthe news. I don't watch television,
and frankly, I've learned more aboutthis case in the last four days down
(47:21):
in the jury room that I everknew before I got here. And then
the judge refused to re to investigatefurther, and ultimately, the when we
took over on appeal, we founda juror who was not selected, but
who was down there, and shewe brought her into court and she was
(47:43):
able to testify because it wasn't aboutjury deliberations. This was before the jury
swarmed. This was in the assemblyroom. And she came back to watch
the trial, as sometimes does happen, we know, with jurors who aren't
selected, and she saw this guysitting on the jury who ultimately was one
of the ones that was not struckas an alternate, so he rendered a
(48:06):
verdict of guilt and she's like,oh my god, that's the guy who
was mouthing off downstairs about how guilty. This guy is. This trial is
a sham and a waste of time, and so we presented her in post
conviction hearings. The judge said,doesn't matter, not giving you new trial.
(48:28):
The Wisconsin appellate courts agreed, andthe federal court, the district court
disagreed and said that this was outrageousand the judge had an obligation, a
constitutional obligation to investigate further when evidenceof wrongdoing Jurbias is presented to you.
(48:49):
And he was a guy who he'sstill a judge and senior status. Judge
Aidelman, who all the talk radio, the conservative talk radio, then said,
oh, he was a Clinton appointee, he's a liberal. It's going
to get reversed when it gets tothe Seventh Circuit based in Chicago. And
in fact it was not reversed.It was unanimously affirmed by Judge Richard Posner,
(49:15):
who was a Reagan appointee, avery conservative and esteemed jurist, who
was equally outraged and said that youknow, no matter how what's the point
of going through a trial in thefirst place if the jury is going to
be biased and believe in the person'sguilt beforehand. So it was reversed and
(49:37):
you may be facing the same thing. Yeah, and just people who don't
know. I mean, you canexhaust your appellate rights in state court,
but you still have an avenue togo to federal court who address pretty serious
constitutional deprivations. And so it doeshave to rise to a pretty high level.
And that window of review in federalcourt keeps getting narrow or and narrow
(50:00):
or as Congress keeps passing more restrictionson on how you can get in the
federal court. But but you knowin our case is in like your case,
the South Carolina Spring Court doesn't getthe last word. It's usually the
federal court. Right. I havea hypothetical for you, Jerry. Let's
(50:21):
just say that that judge that itgoes before is a material witness to the
misconduct by the jury. Should thatjudge be disqualified? Well, you know
that's a It's actually more common thanyou might think, but it's still a
(50:44):
relatively unsettled area of the law.And we had a case in Wisconsin where
one of the issues was did thejudge participate in the plea bargaining, which
you're not supposed to do. InWisconsin, judges cannot tell. And it
was alleged that the defense attorney said, hey, if you plead guilty to
(51:07):
this. That was a high profilecase too. Here's the piece of paper
the judge wrote, the number ofyears he intended to give you. We
met in chambers with the prosecution,and and here's what he said. And
then of course he got like doublethat sentencing, and then so he challenged
it, and that judge did haveto step down and actually did testify in
(51:30):
a post conviction hearing denied, ofcourse, that he did any such thing.
But it was one of the rarecases that I've seen where the defense
was allowed to actually produce present testimonyfrom a sitting judge. Well, let
me let me be honest, becauseI was just setting up a very vague
(51:53):
hypothetical. Bet Jim filed the veryrobust petition today, uh in the South
Carolina Supreme Court. Obviously, Iknow this episode's dropping, you know,
weeks later. But essentially, inhis case, there was the clerk of
the court that communicated with the juryin a very unprecedented way about very material
(52:20):
things such as the defense's case beforethe defense puts on puts on its case,
and also the defendant's testimony before hetakes the stand. So jurors have
sworn affidavits like there's two of themabout what this clerk did. The problem
is that with respect to some ofthat some of those communications, the judge
was very well aware of it,not happy with the clerk when he found
(52:45):
out that she'd communicate with the jury'sjurors directly. And so he's definitely a
material witness in any sort of inthe hearing that will come up on the
motion for a new trial. Andso now if you added this is another
hypothetical for you, and if youadd to that the idea that this judge
was also personally biased, wouldn't thatmake it a stronger case for him to
(53:07):
be disqualified? You want me tohandicap that particular motion, I'm not going
to go I won't do that much. I will say this, you know
the the I mean, you seeit even now at the level of the
United States Supreme Court, when itcomes to the whole what standards are there
for giving justices free vacations with youknow, litigants or people who are at
(53:32):
least interested in some of the casesthat come before them. And there's a
lot of unsettled law. I don'tknow specifically in South Carolina what the rule
is going to be on recusal,but it's becoming a more and more of
an issue on many cases, partlybecause of all the money that goes into
(53:54):
the election campaigns for judges and justices. So whether this all too often the
courts have said, we're going toleave it up to the individual judge to
decide whether he or she must recusethemselves. And you know the one case,
(54:14):
a Caperton case from West Virginia wherelike a coal miner was involved in
litigation and had given a whole lotof money to one of the candidates who
then was a judge in the case. Ultimately, you know, the US
Supreme Court put some limits on that, but all too often it's going to
(54:35):
come down to the own judge's decision. And you know, the judges don't
want to admit their biased Yeah,of course, they don't want to step
down from a case in which that'salleged, because it's almost like and they
think it's an admission of wrongdoing whenit's it's oftentimes not. Sometimes it's just
a human failing. Well, myfavorite thing, it was like this little
(54:59):
peace yes, at the very endof Jim's motion today when I read it
was like, we don't want anydisciplinary action against this judge. We actually
respect this judge. We think he'sgreat, and you know, he's very
honorable and distinguished. But you know, we we just want, you know,
our clients' rights to be protected oryou know, I mean, he
was violated, so you know.But of course, of course, no
(55:22):
judge wants to be disqualified because ityou know, it's it's a it's a
violation of the Code of Judicial Conductand it's not a good look. But
there's a lot of layers in Jim'scase. Not every case is the same,
every case is different, and Ijust brought that up for fun because
I like the motion. But let'send with bail and jail. That's also
(55:44):
been a topic that we've been,you know, really interested in with our
guests. And you know, theright to trial is probably the most sacricanct
right, and yet so many Americansplead for reasons that are just not really
ballad. And you are argue inyour book that you know, when you
(56:05):
can't make bail, it puts thispressure inevitably on the defendant to wrap up
his case, right away plead outand a lot of it often comes from
the lawyer. And so how dowe fix this really broken aspect of our
system. Well, it's controversial insome states. Illinois most notably now is
(56:29):
banning the use of cash bail perse in order to try and you know,
because here's the problem, and thisbecame a problem in the Avery case,
where they recorded every single conversation thathe had with anybody in his family
(56:51):
on the phone or in any visits, and then they wanted to use some
of them. He didn't really sayanything in criminal but they were threatening to
use some of the statements that he'dmade in these recordings, and we we
argued that that was essentially a denialof equal protection because the rich man who
(57:13):
can bail out can sit at homeand talk to his family and friends and
you know, even in besides hisown lawyer and not have it recorded and
used against him. But the poorperson who can't afford to post bail cannot
And I mean, that's just oneof the inherent things that's most unfair about
(57:37):
using cash bail to keep people injail. And there's cases are there's states
now that are that are reducing oreliminating cash bail, and they're finding out
that the frequency with which people comeback to court, which was supposed to
be the whole reason for cash bail, is just the same whether they're they
(57:59):
have cash bail on them or not. And so it's not necessary to put
cash bail on somebody in order toensure their appearance in court. But it's
controversial because, especially here in Wisconsin, sometimes judges make mistakes. We cannot
predict future behavior of anyone, andsometimes in hindsight, it looks like someone's
(58:23):
bail was maybe a little too low. And we had a horrible case of
a Christmas parade where a gentleman laterconvicted of this offense, drives his vehicle
through a Christmas parade kills all ofthese people, hit these grannies that are
(58:44):
dancing in a troop and a Christmasparade, and then they find out that
he was in He was released ona relatively low bail and essentially by mistake
because the prosecutor did not know aboutanother they're pending matter or something like that.
And so you know, there's ahuge uproar about how, you know,
(59:07):
we need to increase bail, notreduce it, which of course,
still doesn't account for something like this. You know, the offense that he
was bailed out on was not ahomicide or a sexual assault or something like
that where he couldn't have posted itanyway. So but it is really unfair.
(59:28):
And there are there are people whosit and wait for months and now,
particularly after the pandemic, for yearsbefore trial, and they are presumed
innocent, and yet they're sitting incustody, and then the prosecutor comes to
them, maybe the case is weak, and they say, you know,
let's make a deal, you know, if you plead guilty so that I
(59:50):
can save face. Basically, I'llreduce this charge and you can get out
with time served. And I talkabout a case in my book that I
took over for the Innocence Project gotthis homicide conviction reversed where the guy,
I think he had been sentenced toparole eligibility in fifty five years, some
(01:00:13):
really long sentence like that which yousee a lot of here in Wisconsin,
quite frankly, and it was reversed. And then I took over the case
for trial, and as we preparedfor trial and started, the prosecutor started
realizing that it was weak on theFriday before the trial started, he offered
(01:00:35):
to reduce this charge. The guyhad been sitting in prison for five and
a half years by then, oron pre trial bail, and he offered
to reduce it to a negligent homicideoffense that had a maximum of five years.
So he as long as he pledguilty, he got time serving,
he'd get time served to walk out, and what would you do? I
(01:01:00):
would take it. He put hisfaith in the system once and got and
lost, got fifty five years.He I think had a better lawyer the
second time around, but still hetook it. And so you see this
time and time again. Yeah,and you know what add to it.
I have a client right now who'sa terrible like he's mentally oh, he's
got terrible addiction issues. Add toit those kinds of layers and a very
(01:01:25):
sweet deal is made. You gotto communicate it to the client. You
disagree with it, you think it'sa tribal case, telling him to go
forward, and they're like, no, I need to get out. I
want to get out right now.I don't care they're not giving me any
more time. I'm going to getout. And it's like one of the
hardest conversations you know to have,and you know, you know that this
client's going to end up right backwhere they are really quickly because they're not
(01:01:49):
getting treatment, they're not you know, doing the right thing or should you
know, taking your advice, butit's ultimately their right right. So it's
gets they're the ones. They're theones that go back to jail or prison,
not you exactly exactly. You haveto put that decision in their hands
ultimately. So we want to closewith you know, we our audience and
(01:02:12):
our listeners are very much fascinated byDNA and I know that's one of the
one of your forties. So Ihope that you come back and join us
when the coburger case out of Idahostarts, you know, moving closer to
trial. We loved having you ontoday, Jerry. I know you had
some difficulties and you made it happenand I really appreciate that. And if
(01:02:35):
we don't chat before Thanksgiving, Ihave a wonderful Thanksgiving. Thank you,
thank you for inviting me, andI'd be happy to talk again DNA.
We could talk all day about Yeah, thank you, Thank you so much.
Jary. You're very welcome Thanks firsttime checking out the show, Please
subscribe. We're on all the podcastplatforms. The show is also on YouTube.
(01:02:57):
You can follow us at the presumptionon all this social media handles.
And until next time, Sarah Jimwe rest we rest h
Hello, and welcome to the PresumptionPodcast. I'm Sarah. Sorry. One
of your co hosts and with meis Jim Griffith Hey, Sarah Hey,
and Matt our wonderful producer, MattFondelier. I found you last name correctly.
You did it. I did it. And we have a very special
guest with us today, a dearfriend and colleague who I know from the
(00:47):
National Associational Criminal Defense Lawyers, JeromeBeing, who goes by Jerry. Jerry.
Welcome, Thank you, good tohave you. Thanks so. Jerry
as a partner in the Brookfield,Wisconsin law firm of Butting, Williams and
Stilling. He received his lawy degreefrom the University of North Carolina Chapel Hill.
He's a past board director of theNational Association of Criminal Defense Lawyers and
(01:10):
the recipient of the twenty seventeen andACDL Champion of Justice Legal Award, and
also the past president of the WisconsinAssociation of Criminal Defense Lawyers. He was
a trial public defender for nine yearsin Milwaukee. Presently in private practice.
His entire practice is dedicated to criminaldefense, where he does both trials and
appeals. He's accused in many serious, high profile trial cases, including the
(01:34):
Stephen Avery case, which is goingto be a big focus of ours today,
as shown in the Netflix documentary Makinga Murderer. He lectures worldwide and
has frequently sought after for his knowledgeof the criminal justice system, the use
of expert witnesses, DNA, andother forensic evidence. His first book is
Illusions of Justice, Illusion of JusticeInside Making a Murder in America, Broken
(02:00):
System, which was published in twentyseventeen. I guess better late than never,
you know, Jim, and Iread this book, and I,
as you know, Jerry, Iposted on social media encouraging everybody to read
this book. I don't know whyI hadn't read it before. It's phenomenal,
and you just impart so much wisdomin it. A lot of it
has to the Avery case, butyou mentioned other cases as well, and
(02:23):
so I just kept telling Jim whenI was reading this book that there's so
many parallels that I was seeing betweenthe Avery case and the Murdock case,
which is Jim's case with Decarpulian,from your relationship with Dean Strang very similar
(02:43):
to Jim and Dick's relationship, andalso just how dynamic your collaboration was in
this case. Like you say,I do that too with other trial lawyers.
The collaboration is a force multiplier,just very much. I just kept
telling Jim, you got to readbecause if for nothing else, there's so
many similarities. So I want tostart with Obviously I did. By the
(03:07):
way, it was great books herein great I was going to say it
probably would cause you PTSD flashbacks,and there are a lot of things in
there that rang true for sure andmy experiences, but I downloaded on Kindle
and I read it on my iPhoneand it was a great, great read.
So look, we're the Presumption Podcast. We started this podcast. It's
(03:29):
now become a brand because there wassuch a big hole in media, you
know, from our perspective, everythingwas sort of leaning towards guilt. And
there's an entire chapter in your book, Cherry on the presumption of innocence.
And you know, my favorite quotein this book is from Dean that,
(03:50):
all due respect, Council, thestate is supposed to start every criminal case
swimming upstream, and the strong currentagainst which the state is supposed to be
swimming is the presumption of innocence.But that doesn't always happen. Tell Us
more about what he meant by this. Well, believe it or not,
that was completely unplanned, just sortof the comment just flowed from Dean,
(04:15):
as so many eloquent things do.It was at the beginning of the trial
when the state, for I don'tknow at that point ten months, had
charged Stephen avery was sexual assault andfalse imprisonment based solely on his nephew Brendan
Dacy's confession, which was we believetotally bogus, and they without actually the
(04:43):
state calling Brendan Dacy. They hadno evidence to be able to prove it,
and so we moved to dismiss thosecounts before the trial began, and
the state agreed, and then Deanasked for a curative instruction in essence that
would explain to the jury that theyhad that he originally the information originally included
(05:08):
additional counts, but the state dismissedthem. And that's when Kratz goes,
well, if the state's going tohave to start off this case swimming upstream,
then maybe we won't dismiss it.And then Deans stood up and gave
that eloquent quote. Yeah, sohe pulled from Kratz as the prosecutor was
(05:29):
the prosecutor, so he pulled Kratz'sstatement and tied tied in the presumption of
innocence is what I yes, SoJim, you have to just jumping right
there. Jerry, there is anotherchapter in your book titled presumed Guilty,
and I guess we'll get that getto that momentarily. But it's not always
(05:50):
the state it comes to court andthe defensive is presumed innocent, right.
I mean, it's as you writein your book, the state really has
the benefit of a presumption of guilt, you know, and it's really hard
to get the juries to to youknow, engage in the burden that they're
required to. You know that that'sparticularly true in high profile cases that get
(06:16):
pre trip publicity. Right. Butyou know, I think all defense attorneys
know that even even if the jurycomes in and it's it's a case that
nobody's heard about, they start offwith the thought that, well, you
know, what's this guy doing sittinghere? If the case got this far,
if he's being charged, he's goingto trial, he must have done
(06:38):
something wrong, right. You know, that's I think a unfortunately too common
viewpoint that jurors start off the casewith and you know, at least in
cases where they're not so polluted bypre trip publicity. I think you can
overcome that as a defense attorney andwith help from the judge explaining to them
(07:01):
that you know, whatever they thinkyou know coming in, that he is
presumed innocent and that you know,the state's burden is completely different at this
point. But it is very,very difficult in this day and age with
pre troup publicity. And then youadd an additional layer of social media where
people get a lot of information.Some younger people get all their information from
(07:27):
social media, it seems, soit is very yeah, and social media
doesn't have you know, mainstream mediaat least there's some sort of you know,
standards around rules and standards and thesocial media, you know, these
are just sleuths and regular people andthey start creating and adding and inserting and
(07:48):
misrepresenting, and it's incredibly dangerous becauseit just has you know, such just
vast breadth. You know, justbecause it's retweeted doesn't make it true,
you know, exactly. So let'stalk about you know, one of your
big high profile cases, Stephen Averycase, and you know, it was
a subject of the Netflix documentary makingof a murderer, and I was one
(08:11):
of the millions who binge watched itduring COVID, and so I think a
lot of people did did play onNetflix. But you know, there may
be some people out there have notheard about Steven Avery case, but just
a tell us a little bit aboutit and how you got involved in how
you and Dean ended up working togetherin that case. Sure. So Stephen
was wrongly convicted, spent eighteen yearsin prison for a sexual assault. He
(08:37):
later was exonerated and had the luckthat the the crime scene evidence or some
of the crime scene evidence that linkedto the perpetrator not only excluded him by
DNA, but also was a hitwith somebody who another local law enforcement agency
(08:58):
had believed was the suspect all along. So Steven gets out after eighteen years,
and as it starts to come outthat there's information that the state knew
about in that case all along.They knew about this other suspect, they
did not tell the defense, andit looked like there was some deliberate manipulation
(09:20):
of the evidence and hiding of theevidence. He filed a thirty six million
dollar lawsuit against Manitowac County and theManitoac County Sheriff and district attorney who prosecuted
his case. Two years later,he is surprisingly arrested and charged with the
murder of a twenty five year oldphotographer woman who took pictures for Auto Trader
(09:48):
magazine. One of these little thingsyou'd see in the grocery store where people
could take pictures of their car andadvertise it. And it caused a huge
uproar in all over the country andin the innocence community, the Innocence Network,
community organization. Innocence organizations were afraidthat people were going to say,
(10:11):
oh, look what happens if weif we let people out, even if
they're wrongly convicted, Look what's goingto happen. They're going to go off
and murder people. And so itdrew the attention of the New York Times.
It was on the front page ofthe New York Times, and it
therefore drew the attention of these twofilm students from New York to come out
and look at it and see,you know, this might be kind of
(10:33):
an interesting sociological study. We'll talkprobably a little bit more about that later.
But we were not. Dean andI were not originally retained until about
five months after he was charged hislawsuit for thirty six million dollars settled for
(10:54):
four hundred thousand, a pittance foreighteen years. But he used that money
to pay his civil lawyers for thecivil rights case the expenses that they had
incurred, and then use the restof it to hire private criminal defense attorneys,
myself in Dean Strength, and wewere both recommended by various sources,
and so ultimately that's how the twoof us then took over and represented him
(11:20):
from March of twenty or two thousandand six until the trial was done about
a year later. Well, there'sanother parallel right there between Avery and Murdoch
that you know in your book yousay when you do the math, you
were getting paid like nine bucks anhour because you didn't you didn't get paid
enough, you know, I meanafter paying the expenses on the civil lawsuit
(11:43):
and then you know, paying youguys. But you know, like Jim
and I have talked about this withother guests, we have to see through
matters and even if the client runsout of money, you know, or
the money's not enough, and soit's something that we're all familiar with in
this in this book, and youknow, the overall Avery story which you
(12:05):
really sort of portray the flaws andthe failures of the criminal justice system.
And it ranges from everything from junkscience like the hair analysis used in Avery's
prosecution, to DNA that you know, debunked that junk junk science that the
prosecution had previously relied on. Uh. And then there's like defense counsel misconduct,
(12:28):
false confess confessions. UH, andthen just to like straight up lack
of physical evidence. So tell usabout what some of these travesties and flaws
were in your case and how thesystem failed with respect to them. Well,
you know, the one thing youdidn't mention is Brady evidence and which,
(12:48):
which for listeners is uh. TheUnited States Supreme Court ruled that the
government the prosecution must turn over anyinformation they have through them, either in
the prosecutor's office or through the lawenforcement agencies that the material evidence that's potentially
exculpatory evidence pointing to a defendant's innocenceor even mitigates through the offense. And
(13:16):
the problem with that is is ina criminal case that you don't know what
you don't know, And time andtime and time again, we find years
or even decades later, as happenedin Stephen Avery's first wrongful conviction, that
the prosecution withheld evidence from the defenseand his current Stephen Avery's current attorney is
(13:41):
dealing with that very issue now.So you know, you mean on appeal,
on appeal, on appeal, there'sinformation that that Dean and I were
not provided that might very well havemade a difference in the prosecution and defense
of the case. Pre trop publicity. We talked about a little bit.
(14:01):
That's a problem. Yeah. Youknow in your book you describe a press
conference that was held by I guessthe prosecutor and the sheriff after after there
was this core so called confession fromthe nephew, Brandon, And you know
my experience, I thought, that'sa no no that you don't go on
(14:22):
national TV or local TV and talkabout someone's confession. I mean, that's
just and that just poisoned the wellright there for you. Sure, I
mean you're talking about by by thenephew's own lawyer. No, no,
no, the prosecutor. Oh yeah, they had daily pressers right well,
that didn't come, that didn't happentill the trial. What Jim, I
(14:43):
think Jimmy, you're referring to thepress conference when Brendan Dacy was actually first
charged in March two thousand and six. Yeah, and you're right. I
mean the you know, there areaba standards, ethical rules that specifically for
prosecutors that tell them they are notsupposed to discuss in detail publicly outside of
(15:09):
a court setting a suspect's confession.Here they not only discussed it, but
the prosecutor, Ken Kratz, gavethis unbelievably you know, Dean and I
often have said that frankly, thatwas his best closing argument in the entire
prosecution, except that it wasn't basedon facts. It was it was completely
(15:31):
made up, there was no evidenceto support it, and never and in
fact that that confession never even camein to Steven Avery's trial because they were
not able to get Brendan Dacy toflip and become a state's witness because he
immediately recanted what they claim he said. But yeah, so the prosecutor calls
(15:54):
this press conference and begins it bytelling people that if there's anyone under the
age of fifteen in the room,they should probably leave. And what does
that do you know that just makesyou turn the volume up. Oh this
is gonna be good, right,I'm lean, yeah, exactly, And
then he tells this this powerful,emotional story that was a graphic rape,
(16:22):
torture, murder, stabbings, slats, slitting her throat, shooting, you
know, all of these things whileshe's begging for her life. I mean,
just horrid, horrid description of ofwhat supposedly happened. And when I
heard that, I thought, youknow, they made it sound like he
(16:44):
had been the nephew, The sixteenyear old developmentally disabled at least limited nephew
had been harboring this guilt of whathe and his uncle had done for months
and finally just came out with thisnarrative, you know, oh, this
is what happened. Well, whenyou actually looked at the confession, it
(17:07):
was completely different. It was allof the story came from the police,
not from him. His answers were, you know, monosyllabic. Yeah,
I remember that, I remember thatscene. I don't know. And they
strung it together in a story thatwas so powerful that one of the television
(17:29):
reporters who later went to law schoollater told me that he was so grossed
out by hearing it that he wentoutside the court house where the press conference
was and sat in the TV truckfor a while and called his parents to
just try and you know, talkthrough this this horribly inhumane thing that he
(17:49):
had heard happen. And you mentionedin the book that one reporter you know,
asked, well, there's a forensicevidence backed this up? And cats
made a dodge and you know,just to right answer the question, right,
that's right. One reporter was youknow, smart enough to say,
well, now, is there anyDNA evidence that backs this kid's story up?
(18:14):
And suddenly Kratz became COI and didn'twant to like, oh, we're
not going to talk about that rightnow, you know, we want my
story. Well, then later whenwe got the discovery in the case,
which was about two months later,we discovered that at that very moment,
the day they did that press conferenceand told that whole story, they already
knew from the crime lab analysis ofthe crime of the supposed crime scene,
(18:40):
Stephen Avery's residence, that there wasnothing to back it up. There was
no DNA, not a single cellof DNA of hers was ever found inside
that that trailer, you know,which would have been a bloody scene I
mean, and they examined it carefully. They they ripped the carpet off the
floor, they peeled the paneling offthe wall, and they looked for any
(19:04):
evidence and found nothing. And theyknew all that when they told the public
this this ridiculous and horrific story.And at the time, you know,
Stephen was in custody, he wasin jail, he's already charged, and
the public is hearing this so calledconfession from the prosecutor, which ABA rules
prohibit. And then fast forward,you know you're in a hearing, and
(19:27):
Jerry, you and I share thisexperience, and I think any crumbin defense
lawyer out there who who's had ahope high profile case can relate. You
go out and talk to reporters aboutwhat you just said in the courtroom,
and then you get a nasty letterfrom the judge saying, oh, be
careful, mister booty, you're violatingthe rules on pre trial publicity. I
(19:48):
mean, it's just not just notfair and balanced out there for us.
I'm telling you, as you knowright, well, yeah, Jim,
Jim got in trouble because he tweetedliterally a Washington Most article. You didn't
even say anything about it. Hejust retweeted someone else's article my cross examination.
Yeah, and then he got hegot, he got the spanking.
(20:11):
So I'm gonna I want to talkto you about the media in your case.
I mean, it played a hugerole, right you're you're you know,
aside from the staircase, uh documentary, it seemed like, you know,
this was a very unique circumstance whereyour trial prep was followed, you
(20:33):
know, uh. And you know, it's very different than you know,
having cameras in the courtroom for thetrial. This is like pulling the curtain
back so that people could see whatgoes on before. So it was it
was a big deal. It wasunprecedented. Did that ultimately help hurt and
why? Well, it ultimately hadno effect whatsoever on the trial. We
(20:57):
i had never participated in anything likethat before, and we thought long and
hard about it. We thought,you know, you're right. Other than
the staircase, which almost nobody hadseen back then because it was on you
know, mail order DVDs was aboutthe only way you could really see it,
there had not been a perspective ofwhat it's like for the defense council
(21:21):
to prepare for a you know,very serious crime like this, or defense
of an accusation like this at trial, and so we thought it would be
educational if anybody ever saw the documentary. We of course never expected it to
have this kind of exposure globally.It was not a Netflix project at the
time. It was two film students, graduate students from New York University.
(21:48):
But if you know, we onlyhad two conditions, one of which is
kind of laughable now that I thinkabout it, but one of them was
that they not record, They wouldnot be privy to any direct attorney client
discussionable we had with our client,Stephen. But the other was that they
not air anything, not even atrailer, before Steven's trial was done and
(22:11):
Brendan's trial was done, which Ihad no idea how long it takes to
in post production, you know,to put something like this together, much
less sell it. And at thattime there was not even a streaming market,
so that never happened. Nobody eversaw any of that behind the scenes
stuff. But Kratz, the prosecutionknew it was going on, and in
(22:36):
fact, although after making a murderercame out, he claimed that the producers
had not given the state the sameopportunity pre trial to work with him,
and they there's a letter in thefile specifically says yes, we want you
to do this. They were offeredthe opportunity and didn't. Instead, about
(22:56):
two months before trial, the prosecutorsubpoened the filmmakers with all of their footage
and they had to go out andagain they had no financial backing. Really,
they were just students. They hadto out hire a media lawyer to
defend their First Amendment rights and ultimatelythe subpoena was quashed. But I suppose
(23:21):
that was the closest you could cometo, you know, a potential way
in which our participation might have backfiredif the prosecution had got a hold of
that before trial. But there werealso daily pressers which were really unusual.
Can you tell us about how thatstarted? I think the prosecutor started it,
(23:45):
and if that was something a toolthat you could use to kind of
change the narrative in any way.Sure, so, you know, again
I had never done anything like thatwhile a trial is going on either.
But the prosecutor announced to us andthe judge and chambers like the Friday before
the trial that the media had contactedhim and wanted to do daily press conferences
(24:07):
with him, and that he haddecided, oh, I'm not going to
do I'm gonna only do every otherday, and Teresa Hallbach's brother would do
the alternate days. And we said, we wait a minute. You know,
he had already been making E've beeninterviewed a lot by the media before
trial, and was clearly just anagent of the prosecution. And so ultimately
(24:32):
we came up with a compromise whereall of us would do press conferences at
the end of each day, butthat no topic, no questions would be
asked about what was coming up,and that we could talk about what had
happened during court that day, onthe theory that this jury wasn't sequestered,
(24:53):
as most are not these days,and they're told not to watch the TV
and search on the internet. Butif they had violated that, they at
least would only hear what happened,but mostly what they already heard in court
that day. And so we hadthese press conferences every single day, and
(25:14):
as the trial began, the mediaknew nothing about the Again, the only
narrative they had heard was this horrificpress conference that the prosecution gave at the
beginning of our representation. And afterthat we were essentially under a sort of
a pseudo gag order, and sowe could not present the defense side the
(25:38):
fact that there was no corroborating evidence, for instance, and so they didn't
really know much until the trial started, and then through cross examination all of
a sudden in the first day theycame up to me after and said,
wow, this we thought this wasa slam dunk case. This is this
is there's some really interesting issues.And so the media during those press conferences,
(26:02):
I think became they asked a lotof good questions, frankly, and
they learned a whole different side.And what I was able to do sometimes,
and I've done this part in othercases where I've had high profile media
coverage, is during a break inthe action, you mean, you know,
I may be cross examining an expert. Let's say, I would go
(26:26):
and talk to the reporters and sayand sort of use them as a sounding
board. Did you did you getwhere I was going? Did you understand
this point? Because if they didn't, then the jury probably didn't either.
Most of the reporters were more educated, frankly, certainly in this case.
And so then we would go backinto court I would sort of let me
go back for a minute and followup, And so we used them as
(26:48):
almost a mock jury in real time. And so there's a little bit of
that with the with the press conferenceas well that we could fine tune the
next day if it looked like fromtheir questions they weren't really getting the points
we were trying to make. Itwas a good gauge. Like now we
go on Twitter to see what peopleare thinking or saying, and to have
(27:11):
that directly from reporters is great.I think Jim wants to get into DNA
because we have a lot of ourviewers, you know, are fascinated by
DNA and now genetic genealogy. Soturn it real. They're switching gears a
little bit. You know. Iknow, the DNA exonerated Stephen Avery after
(27:32):
eighteen years, and you write inyour book how DNA has has has really
debunked a lot of the forensic evidencethat was used to convict a lot of
people. And when I say bitemarks, hair analysis, shoeprint analysis,
and and all the most unreliables eyewitnesstestimony, and you know, can you
can you address that for us please? Jerry? Sure? So you know,
(27:56):
I went as testimony is a littlebit different than and some of the
other junk science. I'll call ittypes of evidence. But uh, you
know, we we knew even beforeDNA, psychologists had already been studying the
the fallibility of human memory and humanidentity ability to make identifications, particularly cross
(28:19):
racial. You know, the mythsthat I'll never forget that face, you
know, and you know when thegun is pointed at me, and you
know, all these details are somehowburned in your memory. Psychologists has had
already proven long before DNA, instudy after study after study, that those
were myths, and often it wasjust the opposite. And in Steven's case,
(28:45):
the first conviction was was assault caseright, and the victim had identified
him right, wrong, right,that's right. And and you know,
to her credit, she you know, she she felt horrible when she discovered
that he was exonerated and that shehad she was very certain in trial that
he was the guy, and sheidentified him. It turns out that the
(29:08):
identification process they used with her wassort of deliberately skewed to try and get
her to pick Stephen because of malicethat the department had against him. But
once DNA happened. And this isan important thing that the viewers and listeners
(29:29):
need to know. Almost all ofthe so called forensic sciences did not come
from another application in the world.They were created by the law enforcement and
by prosecution. They're really the FBICrime Lab was the brainchild of j Edgar
Hoover back in the thirties, andthey were designed to try and give a
(29:53):
more objective basis for jurors to decidecases that used to be he said,
she said, or eyewitness identification.They would then bring in these experts of
the so called you know, labcoat effect that jurors would then be told,
Aha, this gun matches, orthere's this blood spatter, or this
(30:14):
hair is similar, and bite marksand all of this stuff. It was
those disciplines, those scientific disciplines werenever used in any other real world practice,
unlike DNA, which came from medicineand biology and basic research. And
so when DNA burst onto the scene, it ultimately proved that case after case
(30:41):
where people had been certain from eyewitnessidentification or from bogus, FBI created types
of science like hair microscopic hair comparison, or bite marks that in fact those
people were innocent that DNA proved theywere innocent, not just a reasonable doubt.
(31:03):
And so really in the nineties iswhen that started to change, and
then the you know, the InnocenceProject in New York started, and you
know, unfortunately there's a lot ofcases where DNA cannot answer it because the
either prosecution or i should say lawenforcement didn't collect the evidence, or the
(31:25):
case is so old it's been destroyed. And you talk about another case that
was impactful to you, it's thatRalph Armstrong case that you finally after twenty
years, you know, trying toget him exonerated, you know, twenty
nine years. Yeah, so it'sa I mean, I know that was
rewarding, but it's also frustrating toknow that he had to spend twenty nine
(31:48):
years in prison before you know,the truth came out, right, Yeah,
and fifteen of those years I wasworking on the case. So,
you know, people get frustrated whenthey see how long post conviction processes for
Brendan Dacy or Stephen Avery. Andyou know, again that is part of
the one of the flaws of oursystem is that that it is so difficult
(32:10):
to undo a wrongful conviction that thisthe belief that a judgment should be final.
This you know, doctrine of finalityas lawyers would call it. Uh
get is is worshiped so much thatit it trumps the evidence that points to
(32:32):
a wrongful conviction and it makes itvery very hard to reverse convictions. Is
Armstrong the case that shack So thatwas a case where that was the case
for that's so old that that thetelevision series Mash featured as part of the
(32:54):
timeline of you know when witnesses werewatching Mash and that's but it wasn't in
syndication. This was in its firstrun. It was a nineteen eighty case.
It's that all Mash makes me feelold. So in that case,
there really wasn't any forensic evidence.There wasn't much at all tying Armstrong to
(33:16):
the offense. And you know,there was interesting thing that was about it,
right, It was a very verythin, circumstantial kind of case,
and it was it was a landmarkcase because they had the police had used
hypnotism hypnosis on the only witness whosaw a suspect going into the victims apartment
(33:40):
building, and they used all theseunbelievably suggestive procedures, including having pictures of
my client's car in the room whilethis guy is going through hypnosis, and
he looked at them. They tooka break and left him alone with him.
(34:00):
They did record it on a videoand it's an ancient vhs A.
And that case ultimately went to theWisconsin Supreme Court on direct peel, and
the Supreme Court said, well,henceforth and forever more, no hypnotized witnesses
are going to be allowed unless thesespecific procedures were followed. But in Ralph's
(34:25):
arms Armstrong's case, you know,it didn't matter, no harm, no
foul, So it didn't help him, even though it became a landmark case.
What was the purpose of the hypnosis? I'm sorry to get hung up
on that. This is fascinating tome as somebody who doesn't like all this
stuff. You know, this witness, who was really kind of a bit
(34:45):
of a flaky guy himself, wassitting on the porch next door and said
told the police gave a description which, as it turns out, was off
by six or eight inches from whatMike Ralph Armstrong's actual height was and during
(35:07):
the and so the he couldn't actuallygive much more detail than that, And
so they said, well, let'slet's hypnotize you and see if you have
a memory you just don't remember,and in the memory you could or in
the in the tape, it's unbelievable. You can actually hear when he gives
(35:28):
the height. I think it wasmedium. What do you mean by medium
about? Like me, Well,how tall are you? I'm five six?
And you can actually hear the detective, who by the way, should
not be in the room, leanover to the hypnotists and say, suspect
fuller, the suspects taller. Youcan actually audibly hear that whispering. And
(35:49):
then he starts, you know,leading the witness that the hypnotist starts leading
you know, could he be taller? And you know, so that was
the purpose of god hypnot you know. On that note, there was you
know, you know, this sortof law enforcement stuff, but there was
also attorney misconduct defense attorney miss conductin this case with respect to Brandon brand
(36:15):
Yes, Brandon, yeah, Iremember when I was watching this guy in
the documentary was I was so angry. I just wanted to like punch some
TV screen and punch him, youknow, tell us what he did and
ultimately were there any consequences? SoOkay, So this is an attorney by
(36:37):
the name of Lynn Kachinski. He'snamed, and you see him in the
documentary, and he was appointed bythe Public Defender's office to represent this sixteen
year old boy, and before hehad ever Some of this didn't come out
until later on Brandan's own appeal infederal court when they produced his time records.
(37:00):
Because it was a public defender appointment, he had to keep his time.
And it turns out in the firstmonth of his representation, he spoke
to the media thirty two times andvisited with his sixteen year old client who's
charged with murder once and before hehad even met with his client or talked
(37:22):
with them at all on the phoneor otherwise, he gave an interview television
interview in which he says, obviously, what this young man did is morally
reprehensible, and you know, hebasically confessed his guilt without ever having talked
(37:42):
to his client. Then about amonth or two later, the police wanted
to interview Brandon again because they knewthat some of the story he was telling
them that they were feeding to himand he adopted, didn't fit, and
so they wanted to talk to himfurther, and they really wanted to get
him to flip as a state's witness. And so this this defense attorney essentially
(38:10):
colluded with the prosecution. There isan email between him and I believe it's
one of the law enforcement, ifnot prosecutors, saying, well, let's
wait until after the judge rules onmy motion to suppress his confession, and
at that point he'll be essentially he'llbe weakened because we're going to lose.
(38:36):
And that's in fact what happened.They had the hearing challenging the confession as
being involuntary, and the judge deniedthe motion to suppress, and then at
that point, this defense attorney sentin this investigator to go talk to him,
(38:58):
ostensibly to do a polygraph with hisclient in the jail. But and
you see this, it's actually videorecorded and in the documentary. And when
I first saw this, in fact, I thought, wait, wait,
wait, wait a minute, I'venever seen this before. First time I
saw that video with this this guyO'Kelly was when making a murderer came out,
(39:22):
and then I realized, oh,you know, they didn't the prosecution
didn't have to turn this over.They didn't even have it ostensibly it was
created by the defense and this guywho is supposedly working for the defense attorney
on behalf of Brendan courses him intotrying trying to get him to confess as
(39:45):
bad or worse frankly than the copsthemselves. He you know, he has
Brendan write out this statement and thenhe looks at it and he reads it
and he says, well, youknow, is Teresa in there, because
you know, his statement is heknows nothing about this really, and he's
like, no, well then Ican't help you. Do you want to
(40:05):
spend the rest of your life inprison? You know, you can't do
it. And he's, you know, on and on like this with this
sixteen year old kid. So afterhe gets him to change his story,
and that's when you first you seethis little stick drawing where you know,
the woman is supposedly you know,spread eagle on the bed. He then
(40:25):
this investigator then calls the detectives andsays, it went very well, we
should you should talk to him now, and they set up this the very
next day. And on the verynext day, it just so happened that
the defense attorney was in had trainingfor the Army Reserve. I think he
(40:49):
was a captain and he had hisannual training and so he said, oh,
go ahead, interview my client withoutme being wow, this guy.
Did this guy get despar or pleasetell me. I'll try and get to
the end of this quickly. Sowhat happened? You know? He goes
in, they do this other interview, and in this interview they're really challenging
Brendan because it's like, you know, this doesn't fit this you're lying to
(41:13):
us. Now they're they're sort ofadmitting it. And shortly after that,
Brendan tried to fire his a defenseattorney and the judge refused, said,
well, you know, are youfighting with them? No, Well what's
the problem. Well he thinks I'mguilty. Well that's not good enough.
(41:35):
I'm not going to give you anew lawyer for that reason. But then
the public defender, the state publicdefender, found out that this guy that
they appointed allowed his own client tobe interviewed by the police sixteen year old
boy charged with murder and rape,and they suspended him his certification to handle
(41:57):
homicide cases. And that really forcedthe judge then to remove him because if
it went to trial and he's convictedwith a guy who's not even certified to
handle homicides anymore. You know,that would be reversible error. But uh,
Kochinski fought the public defender and hedid it like an administrative appeal of
(42:19):
his suspension and ultimately got I thinkhe was suspended for six months and then
reinstated to handle but by then hedidn't remove from Brendan's case and moved on
to other clients. Oh my god, and he was I mean, he
was literally working with the prosecutors.It's crazy. And then he's later becomes
(42:43):
a judge. I gotta say,watching Sarah's reactions to your stories is I
feel like I'm watching Sarah watching ahorror movie right now. They're just like
what I remember when I watched documentary. I was like, wait a second,
Like I had to put on pauseand go who is he working for?
(43:06):
Like I literally was confused and thoughtmaybe he's part of the prosecutions team
because this can't be And I waslike, holy shit, this guy actually
is the defense lawyer. So yeah, and his defense, by the way,
his argument is well, you know, he was trying to cut a
deal for his client. He wastrying to get him to cooperate to get
a deal for him. But youknow, when you got a client who's
(43:29):
maintaining that he's innocent and that thisis a false confession and that he recants
from the very beginning, and youdon't even do the investigation and allow him
to be interrogated again by the police, it was that's a pretty egre was
and that poor kid was you know, he was I don't know, delayed
or challenge or where he wasn't evenI mean, he could barely articulate,
(43:50):
you know. It was so itwas so hard to watch. Anyway,
Jim has an important Murdoch related butyeah, yeah, you know, Jerry,
when I was reading your book,you described the situation. I think
the guy's defendant's last name is Oswald. Oh yeah, yeah. You're handling
the appeal and and you're reading thetranscript of you know, the jury selection
(44:14):
and and and that some juror comesup to be vordeer to ask questions and
have you heard about the case?And the juror says no, I really
hadn't heard about the case until Igot here. And we're all back in
the room. Everyone's talking about thecase, and they're not supposed to be
talking about the case. And sothe lawyer then asked the judge to requestion
that the jurors had been qualified tosee what they've learned during the jury selection
(44:37):
process, and the judge refused,it wouldn't allow it. And then the
defendant gets convicted, and and thenyou get on board and you do what
we recently did in the Murdock case, go out and start interviewing participants in
that jury selection process. And itturns out that one of the jurors,
one of the the citizens who camefor jury duty did not get selected,
(45:00):
told you that, yeah, wetalked about it. And then one of
the guys who ended up on thejury says, I believe he's guilty,
and and hid that opinion. Andand you tried to get a new trial
on that in the in the Wisconsinstate courts, appellate courts, and you
were denied and then but ultimately youwere able to succeed. And if you'll
walk, you know, our viewersand listeners through that that whole process,
(45:21):
and you know we're about to startdown that journey in the Murdock case,
and you know, so if youjust give us a roadmap, if you
don't mind. Sure. So thatwas again a very high profile case,
unusual in the fact that the therewas it was a bank robbery, and
then a police captain was tragically shotand killed in the escape. This was
(45:47):
a father's son, very very strangedad that had really sort of brainwashed his
eighteen year old son for his entirelife. And so any as they're fleeing
this robbery and murder of a policeofficer, some enterprising reporter and photojournalist was
(46:12):
listening on a scanner and heard thatthey were setting up a roadblock to try
and catch these guys. And thenhe got there and was able to film
as these two suspects hit this roadbockand there's a shootout like Bonnie and Clyde
videotaped, and then it is justlike this exclusive, you know, gold
(46:35):
mine for the media, local media. So they play it over and over
and over in the nightly news everysingle time the case was reported on it
all they would show this clip.And so during the jury selection, which
again I took over on appeal,this one juror claimed, you know,
they'd gone through four days of juryselection, they'd only got into around fifty
(46:59):
jurors. They still have had anotherhundred. And on the last day suddenly
they for the first time found somebodywho had not seen the video on television
and that's what you're referring to.And he says, no, no,
I really, I really don't followthe news. I don't watch television,
and frankly, I've learned more aboutthis case in the last four days down
(47:21):
in the jury room that I everknew before I got here. And then
the judge refused to re to investigatefurther, and ultimately, the when we
took over on appeal, we founda juror who was not selected, but
who was down there, and shewe brought her into court and she was
(47:43):
able to testify because it wasn't aboutjury deliberations. This was before the jury
swarmed. This was in the assemblyroom. And she came back to watch
the trial, as sometimes does happen, we know, with jurors who aren't
selected, and she saw this guysitting on the jury who ultimately was one
of the ones that was not struckas an alternate, so he rendered a
(48:06):
verdict of guilt and she's like,oh my god, that's the guy who
was mouthing off downstairs about how guilty. This guy is. This trial is
a sham and a waste of time, and so we presented her in post
conviction hearings. The judge said,doesn't matter, not giving you new trial.
(48:28):
The Wisconsin appellate courts agreed, andthe federal court, the district court
disagreed and said that this was outrageousand the judge had an obligation, a
constitutional obligation to investigate further when evidenceof wrongdoing Jurbias is presented to you.
(48:49):
And he was a guy who he'sstill a judge and senior status. Judge
Aidelman, who all the talk radio, the conservative talk radio, then said,
oh, he was a Clinton appointee, he's a liberal. It's going
to get reversed when it gets tothe Seventh Circuit based in Chicago. And
in fact it was not reversed.It was unanimously affirmed by Judge Richard Posner,
(49:15):
who was a Reagan appointee, avery conservative and esteemed jurist, who
was equally outraged and said that youknow, no matter how what's the point
of going through a trial in thefirst place if the jury is going to
be biased and believe in the person'sguilt beforehand. So it was reversed and
(49:37):
you may be facing the same thing. Yeah, and just people who don't
know. I mean, you canexhaust your appellate rights in state court,
but you still have an avenue togo to federal court who address pretty serious
constitutional deprivations. And so it doeshave to rise to a pretty high level.
And that window of review in federalcourt keeps getting narrow or and narrow
(50:00):
or as Congress keeps passing more restrictionson on how you can get in the
federal court. But but you knowin our case is in like your case,
the South Carolina Spring Court doesn't getthe last word. It's usually the
federal court. Right. I havea hypothetical for you, Jerry. Let's
(50:21):
just say that that judge that itgoes before is a material witness to the
misconduct by the jury. Should thatjudge be disqualified? Well, you know
that's a It's actually more common thanyou might think, but it's still a
(50:44):
relatively unsettled area of the law.And we had a case in Wisconsin where
one of the issues was did thejudge participate in the plea bargaining, which
you're not supposed to do. InWisconsin, judges cannot tell. And it
was alleged that the defense attorney said, hey, if you plead guilty to
(51:07):
this. That was a high profilecase too. Here's the piece of paper
the judge wrote, the number ofyears he intended to give you. We
met in chambers with the prosecution,and and here's what he said. And
then of course he got like doublethat sentencing, and then so he challenged
it, and that judge did haveto step down and actually did testify in
(51:30):
a post conviction hearing denied, ofcourse, that he did any such thing.
But it was one of the rarecases that I've seen where the defense
was allowed to actually produce present testimonyfrom a sitting judge. Well, let
me let me be honest, becauseI was just setting up a very vague
(51:53):
hypothetical. Bet Jim filed the veryrobust petition today, uh in the South
Carolina Supreme Court. Obviously, Iknow this episode's dropping, you know,
weeks later. But essentially, inhis case, there was the clerk of
the court that communicated with the juryin a very unprecedented way about very material
(52:20):
things such as the defense's case beforethe defense puts on puts on its case,
and also the defendant's testimony before hetakes the stand. So jurors have
sworn affidavits like there's two of themabout what this clerk did. The problem
is that with respect to some ofthat some of those communications, the judge
was very well aware of it,not happy with the clerk when he found
(52:45):
out that she'd communicate with the jury'sjurors directly. And so he's definitely a
material witness in any sort of inthe hearing that will come up on the
motion for a new trial. Andso now if you added this is another
hypothetical for you, and if youadd to that the idea that this judge
was also personally biased, wouldn't thatmake it a stronger case for him to
(53:07):
be disqualified? You want me tohandicap that particular motion, I'm not going
to go I won't do that much. I will say this, you know
the the I mean, you seeit even now at the level of the
United States Supreme Court, when itcomes to the whole what standards are there
for giving justices free vacations with youknow, litigants or people who are at
(53:32):
least interested in some of the casesthat come before them. And there's a
lot of unsettled law. I don'tknow specifically in South Carolina what the rule
is going to be on recusal,but it's becoming a more and more of
an issue on many cases, partlybecause of all the money that goes into
(53:54):
the election campaigns for judges and justices. So whether this all too often the
courts have said, we're going toleave it up to the individual judge to
decide whether he or she must recusethemselves. And you know the one case,
(54:14):
a Caperton case from West Virginia wherelike a coal miner was involved in
litigation and had given a whole lotof money to one of the candidates who
then was a judge in the case. Ultimately, you know, the US
Supreme Court put some limits on that, but all too often it's going to
(54:35):
come down to the own judge's decision. And you know, the judges don't
want to admit their biased Yeah,of course, they don't want to step
down from a case in which that'salleged, because it's almost like and they
think it's an admission of wrongdoing whenit's it's oftentimes not. Sometimes it's just
a human failing. Well, myfavorite thing, it was like this little
(54:59):
peace yes, at the very endof Jim's motion today when I read it
was like, we don't want anydisciplinary action against this judge. We actually
respect this judge. We think he'sgreat, and you know, he's very
honorable and distinguished. But you know, we we just want, you know,
our clients' rights to be protected oryou know, I mean, he
was violated, so you know.But of course, of course, no
(55:22):
judge wants to be disqualified because ityou know, it's it's a it's a
violation of the Code of Judicial Conductand it's not a good look. But
there's a lot of layers in Jim'scase. Not every case is the same,
every case is different, and Ijust brought that up for fun because
I like the motion. But let'send with bail and jail. That's also
(55:44):
been a topic that we've been,you know, really interested in with our
guests. And you know, theright to trial is probably the most sacricanct
right, and yet so many Americansplead for reasons that are just not really
ballad. And you are argue inyour book that you know, when you
(56:05):
can't make bail, it puts thispressure inevitably on the defendant to wrap up
his case, right away plead outand a lot of it often comes from
the lawyer. And so how dowe fix this really broken aspect of our
system. Well, it's controversial insome states. Illinois most notably now is
(56:29):
banning the use of cash bail perse in order to try and you know,
because here's the problem, and thisbecame a problem in the Avery case,
where they recorded every single conversation thathe had with anybody in his family
(56:51):
on the phone or in any visits, and then they wanted to use some
of them. He didn't really sayanything in criminal but they were threatening to
use some of the statements that he'dmade in these recordings, and we we
argued that that was essentially a denialof equal protection because the rich man who
(57:13):
can bail out can sit at homeand talk to his family and friends and
you know, even in besides hisown lawyer and not have it recorded and
used against him. But the poorperson who can't afford to post bail cannot
And I mean, that's just oneof the inherent things that's most unfair about
(57:37):
using cash bail to keep people injail. And there's cases are there's states
now that are that are reducing oreliminating cash bail, and they're finding out
that the frequency with which people comeback to court, which was supposed to
be the whole reason for cash bail, is just the same whether they're they
(57:59):
have cash bail on them or not. And so it's not necessary to put
cash bail on somebody in order toensure their appearance in court. But it's
controversial because, especially here in Wisconsin, sometimes judges make mistakes. We cannot
predict future behavior of anyone, andsometimes in hindsight, it looks like someone's
(58:23):
bail was maybe a little too low. And we had a horrible case of
a Christmas parade where a gentleman laterconvicted of this offense, drives his vehicle
through a Christmas parade kills all ofthese people, hit these grannies that are
(58:44):
dancing in a troop and a Christmasparade, and then they find out that
he was in He was released ona relatively low bail and essentially by mistake
because the prosecutor did not know aboutanother they're pending matter or something like that.
And so you know, there's ahuge uproar about how, you know,
(59:07):
we need to increase bail, notreduce it, which of course,
still doesn't account for something like this. You know, the offense that he
was bailed out on was not ahomicide or a sexual assault or something like
that where he couldn't have posted itanyway. So but it is really unfair.
(59:28):
And there are there are people whosit and wait for months and now,
particularly after the pandemic, for yearsbefore trial, and they are presumed
innocent, and yet they're sitting incustody, and then the prosecutor comes to
them, maybe the case is weak, and they say, you know,
let's make a deal, you know, if you plead guilty so that I
(59:50):
can save face. Basically, I'llreduce this charge and you can get out
with time served. And I talkabout a case in my book that I
took over for the Innocence Project gotthis homicide conviction reversed where the guy,
I think he had been sentenced toparole eligibility in fifty five years, some
(01:00:13):
really long sentence like that which yousee a lot of here in Wisconsin,
quite frankly, and it was reversed. And then I took over the case
for trial, and as we preparedfor trial and started, the prosecutor started
realizing that it was weak on theFriday before the trial started, he offered
(01:00:35):
to reduce this charge. The guyhad been sitting in prison for five and
a half years by then, oron pre trial bail, and he offered
to reduce it to a negligent homicideoffense that had a maximum of five years.
So he as long as he pledguilty, he got time serving,
he'd get time served to walk out, and what would you do? I
(01:01:00):
would take it. He put hisfaith in the system once and got and
lost, got fifty five years.He I think had a better lawyer the
second time around, but still hetook it. And so you see this
time and time again. Yeah,and you know what add to it.
I have a client right now who'sa terrible like he's mentally oh, he's
got terrible addiction issues. Add toit those kinds of layers and a very
(01:01:25):
sweet deal is made. You gotto communicate it to the client. You
disagree with it, you think it'sa tribal case, telling him to go
forward, and they're like, no, I need to get out. I
want to get out right now.I don't care they're not giving me any
more time. I'm going to getout. And it's like one of the
hardest conversations you know to have,and you know, you know that this
client's going to end up right backwhere they are really quickly because they're not
(01:01:49):
getting treatment, they're not you know, doing the right thing or should you
know, taking your advice, butit's ultimately their right right. So it's
gets they're the ones. They're theones that go back to jail or prison,
not you exactly exactly. You haveto put that decision in their hands
ultimately. So we want to closewith you know, we our audience and
(01:02:12):
our listeners are very much fascinated byDNA and I know that's one of the
one of your forties. So Ihope that you come back and join us
when the coburger case out of Idahostarts, you know, moving closer to
trial. We loved having you ontoday, Jerry. I know you had
some difficulties and you made it happenand I really appreciate that. And if
(01:02:35):
we don't chat before Thanksgiving, Ihave a wonderful Thanksgiving. Thank you,
thank you for inviting me, andI'd be happy to talk again DNA.
We could talk all day about Yeah, thank you, Thank you so much.
Jary. You're very welcome Thanks firsttime checking out the show, Please
subscribe. We're on all the podcastplatforms. The show is also on YouTube.
(01:02:57):
You can follow us at the presumptionon all this social media handles.
And until next time, Sarah Jimwe rest we rest h
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