‘Making a Murderer’ Defense Attorney on Broken Justice System

On Feb. 14, a federal appeals court in Chicago heard arguments in the appeal of Brendan Dassey. Dassey and his uncle Steven Avery have been serving life sentences since 2007 for the murder of Teresa Halbach.

Their trials were seen by millions in the 10-part Netflix documentary series “Making a Murderer.”

Avery has a new lawyer from Chicago who is looking into fresh scientific testing to overturn his conviction. Meanwhile, a new book by Jerry Buting, Avery’s former defense attorney, goes inside their cases and others like them to examine the criminal justice system, which he says is badly in need of reforms.

“What happened to Avery is not unique,” said Buting.

His book is called “Illusion of Justice: Inside ‘Making a Murderer’ and America’s Broken System.” Buting joins host Phil Ponce to discuss the cases and book.

Below, a Q&A with Buting. You can also read an excerpt of “Illusion of Justice.”

Chicago Tonight: Do you regret not having Avery testify during his trial?

Jerry Buting: No, and I can’t unfortunately disclose the reasoning behind that decision because that would be attorney-client privilege. Every defendant has a right to testify or a right not to testify. All I can say in general terms is that it’s a similar calculus that every criminal defense attorney and criminal defendant has to encounter. There’s all kinds of reasons why a defendant may not testify: they are not professional witnesses, some people aren’t good at public speaking, they may have lower education levels. The catch 22 where if a defendant does testify jurors are going to think: “Why should we believe him, he’s trying to save his own skin.” If he doesn’t testify it’s like: “Well why didn’t he testify, does he got something to hide?” It’s almost like a lose-lose proposition. So that’s about all I can say, I can’t discuss the decision that was made in this particular case.

Jerry Buting, left, and Steven Avery. (Courtesy of Netflix)Jerry Buting, left, and Steven Avery. (Courtesy of Netflix)

CT: In contrast with Avery and the evidence the prosecution presented, with Dassey’s case it was all his confession – no DNA evidence. You didn’t represent Dassey in his trial, but what do you see wrong when you watch his confession?

JB: Oh, there’s just an abundance of things. And that’s largely because, his confession is not at all unusual, I’ve seen many, many, many like that. It’s a technique that’s used almost universally by American law enforcement called the Reid technique. And the problem with it is that it’s based on 1950s behavioral science myths really that have been disproven by later studies.

One of which is that somehow police officers are able to tell who’s telling the truth better than the ordinary person, like they’re human lie detectors, and they’re really not, study after study have shown that not to be the case. Because what this technique does is that it says well once the police officers decide that the person is not telling the truth, the interview then becomes an interrogation and different rules kick in.

So at that point, they will accept no more denials--doesn’t matter how many times a person denies--they will lie to suspects, they will lie to them about the evidence they have, they’ll use all kinds of other techniques, like in Brendan’s case, saying almost good cop/bad cop things where they’re pretending to be a false friend of his saying“I know we’re police officers, but not right now, I’m really a father with a 16 year old son the same as you. And I care about you and I want to help you. We’ll go to bat for you. And everything’s going to be all right for you.” And all these other reassurances over and over and over coupled with statements that “We know what happened, we just have to hear it from you.”

And whenever he doesn’t say what they “know” what happened then they correct him and so they’re teaching him “no that’s not right, tell us the truth we know what happened, tell us.” And every time that he guesses at something that’s wrong, they’ll say no so then he has to come up with another guess.

And these techniques are risky against people that are vulnerable or very young or mentally limited and easily suggested. They’re also telling him “we’ll go to bat for you and we know he’s the bad guy: Steven Avery, and you can make it look however you want.” So they’re basically giving him carte blanche to just make something up.

Then later, they start feeding him facts about something happened to her head, over and over he’s just guessing about what that is. And he can’t say what they want him to say, which is the information that was not yet public which is to say that she was shot in the head. And they can’t get him to say that, he keeps guessing and saying something that seems to be involved with the head, but isn’t what they want so they finally come out with it “who shot her in the head.” Thereby disclosing the information.

So, the problem then with Brendan’s confession is not just whether or not he was coerced but also whether or not the technique of feeding facts to him created a statement that just simply wasn’t true and was based on their own theories.

CT: Do you regret not taking on Brendan Dassey’s case?

JB: Yeah, I’ve often thought about it. If the phone call would’ve come an hour earlier, I probably would have in Brendan’s case if they would’ve taken me. Frankly his case was much easier. There was no evidence, no physical evidence that would have supported him being involved at all. It was just his confession.

And I’ve dealt with false confessions cases before. I know how to cross-examine them. You have to present an expert witness as well to explain to the jury why somebody would false confess because a lot of times most jurors don’t understand that, if I was innocent I certainly wouldn’t confess. An expert can explain to them why that isn’t always the case.

Footage from the interrogation of Brendan Dassey, as seen in “Making a Murderer.” (Courtesy of Netflix)Footage from the interrogation of Brendan Dassey, as seen in “Making a Murderer.” (Courtesy of Netflix)

For one thing, we know it’s not the case because in DNA exoneration cases approximately 25 percent of them falsely confess. And we had an expert witness, who has testified many times about this, who was all prepared, to testify in our case if Brendan Dassey had been called by the state. We couldn’t call [Brendan] because he would have the right to plead the Fifth if he wished to not testify at all. But the state could’ve called him and so we had to be prepared for that and we were ready for that.

When they didn’t, I then offered our expert to Brendan’s lawyers and said look this guy has already reviewed it line by line and explained this and that and why this question was improper. And they didn’t use him, I never understood that.

CT: In the book, you discuss your time as public defender. What did your time there teach you about the reforms you’d like to see to the criminal justice system?

JB: I think one of the problems is that the caseloads are too high, the resources are too minimal. When I was a public defender I often had probably an average of three trials a week that I had to prepare for. You’d show up in court and your case would be set for trial but so would 20 others and in Milwaukee that’s the way things were stacked. You prepare for these cases and then you’d get bumped and rescheduled to another date. Maybe it’s a couple months out, you’d often have to prepare for these things two or three times before they’d go to trial. Cases would get stale. Having to be ready for three trials in one week was just too much to be able to do a thorough job on them, particularly if they’re real serious ones. So that was a big issue when I was a public defender.

But one of the things I thought while I was a public defender and then for almost fifteen years afterward before we finally got it passed was to have mandatory recording of all interrogations, custodial interrogations from beginning to end with no breaks. The Milwaukee police department had a very strict policy from the police chief at that time that no detectives {were} allowed to record their interrogation sessions even though they had equipment ready and available.

A huge amount of time is wasted pretrial, in motions to suppress, and trial over what was actually said by the defendant or by the police. It’s still only about half of the states have that requirement and the people that don’t have it continue to resist it. And I think that the police are afraid that their techniques are going to look bad to the jury, but if that’s the case they shouldn’t be using those techniques or they should have come in to explain to the jury why they’re necessary. So that’s still a reform that needs to happen.

The other thing I noticed is crime labs, there’s so much “junk science” that’s allowed in the courts. And it’s never been validated, a lot of it. Back in the day it was hair comparisons, microscopic hair comparison tests which now the FBI has admitted even their own analysts are studying about 200 cases and it’s something like 95 percent of the time their own analysts either falsely testified about the results or overstated the value of what their opinions would be on that. And DNA tests prove that very often they’re wrong when they say oh yea this hair is similar to the defendants and then when the DNA test is done on them they are proved to be wrong. All of these sort of subjective things where the so called experts just eye-ball something and claim that they have a match that is close.

These are things that have never been validated with scientific testing and all of that comes down to the biggest flaw: that crime labs really aren’t independent of law enforcement, they are easily organized as part of the prosecution or law enforcement and yet they come into court and pretend otherwise, that they’re these independent scientists and science doesn’t lie. So those are just some of them.

CT: When the filmmakers for “Making a Murderer” started filming Netflix wasn’t streaming anything yet. Did you ever think this documentary would actually get made, and was it weird being a part of it when you watched it?

JB: It was strange, I mean I don’t know about you but I still feel awkward seeing myself on any kind of video tape, they’re somewhat different images of yourself I think. And then to see it on a television program, that millions of people watching was pretty surreal too. I didn’t know whether it would ever get made, they were certainly very dedicated, hard-working filmmakers, but they were also pretty inexperienced I could say in at least producing a documentary. And back ten years ago the thinking was well even if it did get made it would probably just be shown in art houses and very small audiences. So that was very unpredictable.

CT: You mention in the book that you “lost cases before but this one felt different.” Do you still feel this way? Does this case still keep you up at night?

JB: It does still bother me very much. Right afterwards of course, you’re second guessing yourself and wondering if you would’ve done one thing or another if it would’ve mattered and you just don’t know. At some point you have to get past that and think well you did your best. But you still hope that eventually the truth’s gonna come out and he’s going to get justice.

And I’m hopeful that Kathleen Zellner (Avery’s current attorney) will be able to help him with some of these scientific tests. There’s been a lot of development in the last 10 years, things that they can do now that they weren’t able to. And she seems very confident and she’s got a good record so I’m hoping and anxious the way everybody else is about that.  

Read an excerpt from “Illusion of Justice.”

In December 2006, I arranged to open the small white box from the 1985 Avery case, in the Manitowoc County Clerk of Circuit Court Office. Also present were Norm Gahn, the special prosecutor from the Milwaukee District Attorney's Office who specialized in DNA evidence-and Calumet County Sheriff 's Office detective Mark Wiegert.

When I entered the room, I was surprised to see that Wiegert only had the 8 x 6-inch white box. There was no sign of the bigger card­ board box into which everything had been thrown.

Gahn was puzzled, too. "Um," he said, looking at the small white box. "No, I thought there was a big box."

"I thought it was gonna be in the big box, too," I said.

Wiegert said, "My understanding is, that is it. The other items were fingernail scrapings and hair."

We donned green gloves before opening the white box. Inside, there was indeed a Styrofoam dam-shell container. For the first time we saw that it, too, had at one point been sealed with red evidence tape. And, just like on the white box holding it, this seal was at one point slit open. "Want to spin it around?" I said to  Norm.  "It looks like it's cut through, doesn't it? "

Wiegert lifted the top off the container to reveal a tube of blood, labeled with Avery's name and the date it was drawn, nestled in the Styrofoam.

Norm rocked the vial back and forth. "It's still liquid," he said, surprised.

Three things about the vial struck me immediately. First, there was no seal on the vial. Second, in the center of the vial's rubber stopper was a visible hole. And third, around the sides of the vial, trapped between the stopper and the glass, was a coating of blood above the level of the bottom of the stopper.

We went on documenting the condition of the vial and the containers. Norm plainly was taken aback. As we were finishing, he said to me, "Well, this is a game changer."

I said, "Look, we've been saying all along, if Avery's blood is in there, it was planted. Kratz was claiming that it was a preposterous allegation because you didn't have access to any of his blood. Here it is, right across the courthouse atrium from Lieutenant Lenk and Sergeant Col­ born."

"You're right," Norm agreed. "This is a game changer."

As we left the Manitowoc County Sheriff's Office, he said that he was going to try to find explanations for this, and if there were any tests that could be done to determine if the blood collected from the RAV4 could be connected to the blood in the vial.

A couple of critical points about this vial were not mentioned in Making a Murderer. The Clerk of Circuit Court Office had no sign-in sheet to record the identity of people who inspected the file and its exhibits. And even if there had been some form of monitoring, the Manitowoc County Sheriff's Office had passkeys to all of the offices, including that of the Clerk of Circuit Court.

I was staying in Manitowoc that night, so I went back to my hotel room, eager to report back to Dean. After months of sleuthing, we had struck gold: conclusive evidence that, from the very beginning of the investigation into Teresa Halbach's disappearance, the Manitowoc County Sheriff's Office had essentially unfettered, unmonitored access to an ample supply of Steven Avery's blood. Not only that, but the Manitowoc detective at the center of the highly suspicious "discovery" of the victim's car key, James Lenk, had also been involved in handling material from the box that held the blood vial a few years earlier. Unlike others currently involved in the case against Avery, Lenk had a chance then to learn about this stash of Avery's blood.

Back in the hotel, the filmmakers had set themselves up in a corner of my room. Honestly, at that stage, they had been around so much that I barely noticed them anymore. When I called Dean, my discovery was bubbling out of me, and it was captured on film:

Let me tell you. This is a red-letter day for the defense. It could not have been better. The seal was clearly broken on the outside of the box and inside the box is a Styrofoam kit. The seal is broken on that. We pulled the Styrofoam halves apart and there, in all of its glory, was a test tube that said "Steven Avery," inmate number, everything on it. The blood is liquid. And get this. Right in the center of the top of the tube is a little tiny hole. Just about the size of a hypodermic needle. Yes. And I spoke with a LabCorp person already who told me they don't do that. You can. . . . Have you fallen on the floor yet or no? Think about it, Dean. If LabCorp didn't stick the needle through the top, then who did? Some officer went into that file, opened it up, took a sample of Steven Avery's blood, and planted it in the RAV4. Yeah, he knows where we're going.

Dean was back in Madison.

"Game on," he said.

"Game on, exactly.  Game on," I replied.

When I hung up the phone, I realized the camera had been running the whole time and had captured my giddy, gloating account of the day. At that moment, I hoped they would not use the footage. It was too unguarded. This is about the only thing that ended up in the film that I wish had not.

Later that evening, when the cameras were gone, I got a call from Norm Gahn. It was the first of a few conversations we had about how the vial would fit into the trial of Steven Avery. Gahn is a good lawyer, and it was evident that he found the afternoon's revelations  disturbing and had moved quickly to see if there were innocent explanations, and to see if the RAV4 bloodstains could be analyzed for the possible presence of EDTA-the same research I had conducted. Moreover, if any testing could be done to detect EDTA, Gahn had already thought about ways EDTA might innocently have come to be present.

I had done the same before we went to the courthouse: As it hap­ pens, EDTA has uses outside of blood laboratories,  primarily as an ingredient in various cleaning products. For instance, it is a component in Armor All products, which are used to clean the interiors and exteriors of cars. It is also in some laundry soaps, which means it ends up in water treatment plants; this has led to a dispute about its persistence in the environment, between environmentalists, who argue that it is like a heavy metal that does not deteriorate, and the chemical industry, which says the evidence shows that EDTA breaks down into harmless molecules with exposure to sunlight.

Norm Gahn had also learned that EDTA is found in Armor All. The RAV4 was Teresa Halbach's first car, and she no doubt kept it spiffy. It was obvious that if any EDTA turned up in the blood samples taken from the vehicle, he would suggest that it was neither a surprise nor sinister, just the residue of a young woman's efforts to care for her most prized possession. I kept notes from one of our conversations: FBI can do EDTA testing, but it would take them 3-4 months. They can do them on the stains and on the vial.

As any diligent lawyer would, Gahn was already thinking ahead to

how each side might present different views of the same facts. During the trial of 0. J. Simpson, EDTA was found in a bloodstain on a sock of Simpson's,  and his defense  team  argued  that  the EDTA showed

that the blood had been planted. Over the years, a few other people had made similar claims. The FBI, which had been heavily criticized for using shoddy science to try to explain away the EDTA finding in the Simpson case, had stayed out of most of these other ones. Their position had been that the tests were too sensitive and could mistake chemicals normally found in the environment and the background for EDTA. Now, though-according to Gahn-the FBI believed it could devise a test that wouldn't be triggered by what they deemed irrelevant chemicals to give a false positive. That is, in my view, the FBI believed they could come up with a test that was less likely to suggest that blood had been planted.

Despite all my research, I had not read about any revised FBI test, so all I knew about it was what Gahn was telling me on the phone. He wanted an adjournment to do the testing, and if we wouldn't agree to one, he did not want us to be allowed to argue to the jury that the failure to test was intentional, or even to cross-examine on it.

At this point, Steven Avery had already been in jail for nearly fourteen months. To postpone the trial for another four was out of the question.

"No way," I told him.

ILLUSION OF JUSTICE.  Copyright © 2017 by Jerome F. Buting.
Reprinted with permission of Harper, an imprint of HarperCollins Publishers


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