Book Review: Convicting Avery: The Bizarre Laws and Broken System behind ‘Making a Murderer’ by Michael Cicchini

Ask any trial attorney and they’ll likely tell you that the trial is the easiest part of a case. That’s because all the investigation, research, and preparation is complete. Equally important, the issues to be presented have been narrowed as motions and hearings before trial shaped and settled often significant procedural and substantive legal questions. Add in the bench conferences and in chambers hearings that occur during trial and some of what may most affect a trial’s outcome occurs out of sight and hearing of the jury.

In pointing out that this occurred in the Steven Avery case, the subject of Netflix’s popular Making a Murderer documentary series, Wisconsin criminal defense attorney Michael D. Cicchini examines various substantive and procedural laws, rules and court rulings that shaped the case long before the jury heard any testimony. While not part of the defense or appellate teams, his book, Convicting Avery: The Bizarre Laws and Broken System behind ‘Making a Murderer’ looks at the legal landscape of the Avery case. And while it necessarily is limited to Wisconsin law, where the trial occurred, its critique applies to almost all court systems.

Some of what Convicting Avery examines is already a subject of debate and discussion; other items have a much lower profile, if any. In the former category is the eyewitness identification that sent Avery to prison for 18 years for a rape DNA later established he didn’t commit. At that trial, the victim pointed out Avery as the perpetrator. Yet the jury heard 16 witnesses who said he was nowhere near the crime. The book traces the law enforcement actions that contributed to his erroneous identification in court. Even the Wisconsin Supreme Court would later call eyewitness testimony “often hopelessly unreliable” and say erroneous eyewitness identification is “the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined.”

Arguably more pertinent and much less known is the case law courts apply during a case. The examples in Convicting Avery have two different, yet often related, themes. One is the language used by statutes, rules and courts. Another is that once a jury reaches a decision, courts make it difficult to overturn a conviction.

A prime example of language issues is a word that permeates the law, “reasonable.” Many criminal statutes consider whether a person’s actions were reasonable or unreasonable. Trial courts assess whether law enforcement’s actions were reasonable. Appellate courts often evaluate whether what a trial court did was reasonable or the reasonable effects of the actions. And the Wisconsin and federal constitutions ban only “unreasonable” searches and seizures.

Cicchini believes reasonable is the “most dreaded word” for criminal defense attorneys. “When the defense lawyer sees this word as part of a legal test or standard, he knows his client’s ship is sunk,” he writes. “The word reasonable is so vague and flexible that, when placed in even the most inept judicial hands, any law enforcement action can be justified after the fact.” Avery saw the malleability of the word more than once.

When new DNA evidence was obtained after his rape conviction, Avery sought a new trial so a jury could hear that evidence. Exculpatory DNA results certainly appear to fulfill the requirement that it must be “reasonably probable” the new evidence would produce a different result. Yet in affirming the denial of Avery’s motion, the Wisconsin Court of Appeals said reasonableness must be shown by “clear and convincing evidence,” a legal standard considerably higher than “reasonable.” And reasonableness played a major factor in his murder trial when the judge allowed items seized in the sixth search of Avery’s home, a search that on its face seemed to violate the rules governing reasonable searches and seizures, to go into evidence.

Other court-made rules played roles in Avery’s murder trial. Avery wanted to present a third-party defense; in other words, that some other person(s) killed Teresa Halbach. Yet to do so, he had to show the third party’s motive, even though that is not an element of a murder charge, and their opportunity to commit the crime. Moreover, defendants are required to present evidence “to directly connect” the third person to the crime. Thus, while the state can convict someone on circumstantial evidence, the bar is much higher for a defendant who believes someone else committed the crime for which they are charged.

A similar situation can arise in the context of Wisconsin’s preliminary hearings, the proceeding in which a judge determines if there is sufficient evidence to bind a defendant over for trial. Yet the prosecutor need not even show that its evidence meets the lesser preponderance of the evidence standard used in civil cases. Instead, the state need only show “probable cause,” all that is needed to obtain a search warrant. Moreover, under Wisconsin case law, the truthfulness of witnesses at a preliminary hearing isn’t relevant, only whether the evidence the state puts on shows its theory of the case is “plausible.” That also means a defendant can’t call a witness at the hearing to contradict facts presented by a prosecution witness because such testimony goes to credibility, not plausibility.

Convicting Avery examines several other elements of procedural and substantive criminal law that impact trials behind the scenes, from allowing the introduction of junk science to manipulation of interrogations to the ethical obligations of both prosecutors and defense counsel. Yet Cicchini doesn’t just take pot shots at the Avery case or Wisconsin’s legal system. He suggests substantive reforms regarding the third-party defense and Miranda warnings. Still, Cicchini recognizes the difficulty of substantive reform, noting that it “rarely happens because it is the rational or right thing to do.”. Rather,it tends to occur only when lawmakers “are motivated to ride the emotional wave of a single, high-profile injustice that has captured the public’s attention.”

While built around a particular case, the issues raised in Convicting Avery apply to the criminal justice system as a whole. Opposing arguments certainly exist but Cicchini makes clear he is viewing this from the perspective of a criminal defense attorney. Regardless of one’s personal opinions, the book provides a considered insider’s view of parts of the criminal justice system the public rarely sees.

While the [legal] ethics system can be incredibly suffocating when it comes to things that don’t matter … [it] is toothless and ineffective when it comes to what really matters: ensuring fair trials for clients accused of crimes.

Michael Cicchini, Convicting Avery

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