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Lesson For Texans From Netflix’s “Making of a Murderer”: Public Defenders vs. Hired Defense Lawyers

If you haven’t watched the documentary “Making of a Murderer” yet, odds are high that you’ve heard about it. A Netflix Original, the 10-episode documentary took 10 years to make and debuted on Netflix back in December 2015.

It follows the story of Manitowoc County, Wisconsin local boy Steven Avery, known to most in his small town, whose wife had just given birth to twin boys mere days before he was first arrested by the local police.

Avery ended up serving 18 years behind bars on that charge, which was for the rape and attempted murder of a local woman, Penny Beerntsen, before DNA exonerated him. It was a smelly investigation, and the documentary goes into details about what did and didn’t happen — to say that it’s a case that could be filed under “prosecutorial misconduct” goes without saying.

But Avery’s story doesn’t end there. Maybe it would have if he’d left town.




Steven Avery and Brendan Dassey Arrest and Conviction

Two years after his exoneration, in 2007, Steven Avery was arrested for another, similar felony crime: the murder of a local photographer named Teresa Halbach. His 16 year old nephew, Brendan Dassey, was also arrested for the crime.

This time, Avery was convicted and remains behind bars for this conviction. So does his nephew.

Many argue that Avery is innocent of this crime as well, as is his nephew Brendan, and that both were arrested and charged in retaliation for Avery being freed of the earlier crime, which was a huge embarrassment to the local law enforcement. (Exonerations are always pretty darn embarrassing for the police and prosecutors.)

Or many money was a factor.

At the time of his second arrest, Avery had a civil lawsuit pending against the county for $36 Million over his wrongful conviction. It was a strong case, he had proof that the man who had raped Penny Beerntsen had confessed to the crime and his confession was known to the local sheriff’s department for 8 long years before Avery was released by efforts of the Innocence Project.

This second arrest and conviction kinda throws lots of water on that civil case, doesn’t it?

There’s been an online White House petition asking for President Obama to pardon Avery and his nephew; the required numbers were met for the petition to enlist action by the executive. However, the president has responded by explaining that he doesn’t have the power to do pardon them. It’s a state criminal charge, not a federal one.

The Governor of Wisconsin has the ability to do so. Governor Scott Walker has issued a press release: his office will not be issuing a pardon for Steven Avery or Brendan Dassey.

Defending Steven Avery and Brendan Dassey: Things to Consider

This documentary has a particular pull for criminal defense lawyers. For many of us, we watch and our thoughts roam through countless war stories in our heads about similar situations we’ve seen in our years of practice.

This story is not a rare and strange case that happened far away in the Midwest, up there near Canada where it snows a lot. This kind of stuff happens all the time in our country – including right here in the Lone Star State.

In many ways, the saddest thing about “Making of a Murderer” is that so many factors are so darn common in our Texas criminal justice system today. Consider the following:

1. Clients Without Much Money

First of all, neither of these men had much financial backing to live their daily lives, much less savings and investments set aside to pay for legal counsel. They could not afford a top-notch criminal defense team; nevertheless, they are entitled to legal representation under the federal constitution. Which means a public defender being assigned to them.

In these situations, budget is everything. A judge looks down from the bench to see lawyers on both sides of the courtroom being paid out of one pocket: the taxpayer’s.

2. Clients With Disabilities

Second, many folk who come into the cross-hairs of the police are those who suffer from some kind of legal disability. Maybe it’s a hearing loss, or a type of mental illness.

For others, it’s a learning disability like the one suffered by Brendan Dassey. He’s been tested as having an IQ that’s around 70. (The National Dissemination Center for Children With Disabilities considers an IQ between 70 and 75 to be “intellectual disability.”)

Or age. Brendan Dassey was 16 years old when he was arrested by the police.

So when you watch the “Making of a Murderer” documentary, it can be almost excruciating to watch the “questioning” of Brendan Dassey. Dassey is interrogated without his lawyer being present not once but FOUR times.

It’s amazing to watch, to see how incriminating facts are fed to Dassey, bits at a time, just like a parent might spoon-feed oatmeal to their child. Watch and see Dassey being told how to draw the pictures of the rape and murder, drawings that are then indirectly used to convict the 16-year-old.

Or watch the scene where the interrogator asks the boy “Who shot her in the head?” even though the boy has never mentioned a gun at any time.

Ultimately, Dassey confessed to the crime. He signs a confession. It’s this signed statement that the prosecution uses as the storyboard for their entire case.

Is this a false confession given by a scared and intimidated 16 year old boy who has an IQ estimated to be between 69 and 73? Watch for yourself. You tell me.

3. Court-Appointed Counsel

Third, these two couldn’t afford a lawyer so they got attorneys who were public defenders, or court-appointed counsel. The freebie lawyers. Now, some of these appointed criminal lawyers are good attorneys and they work for things other than money. (They may well have other financial resources or a working spouse, too.)

But many of these lawyers are taking cases by appointment because it’s their way of doing business. They earn their living by appointment after appointment and they need to remain in the good graces of those appointing them and the people that have a say or influence in those appointments. Rock the boat too much and you’re not getting work, and that hurts your bottom line.

Which brings us to Len Kachinsky, the defense lawyer first appointed to represent teenager Brendan Dassey.  According to the documentary and subsequent interviews with Mr. Kachinsky, he knew all about the interrogations of his client and still, he left his client to be questioned by the police without the help of counsel.  Questioning that resulted in a confession.

That’s right. Now remember, his client is (1) learning disabled (low IQ) and (2) 16 year old boy. Wow, right?

Some are arguing now that this happened because Kachinsky was “covertly working for the prosecution” — that he was loyal to the appointment process more than to his young client.

Mr. Kachinsky has explained that he was away on Army Reserves Duty. For more on Len Kachinsky’s explanation of things, check out his video interview on TMZ.com.

Meanwhile, Brendan Dassey’s initial public defender, Len Kachinsky, was fired from the job by the criminal court judge because the judge found that he wasn’t representing the boy right. But that hasn’t blocked the kid from being convicted and serving time.

Brendan Dassey Lesson When You’re Hiring a Criminal Lawyer

Watch the 8th episode of “Making of a Murderer” and you will learn that the teenager was convicted of three felony charges ( first degree homicide; mutilation of a corpse; first degree sexual assault) and now he’s serving a sentence that won’t let him even be eligible for parole until he’s 58 years old.

What got him there?

His confessions to the police. That’s it. There is absolutely NO OTHER evidence to tie the boy to the crimes for which he is serving time. No DNA. No fingerprints. No fibers. Nothing. Nada.

It’s all this boy, alone against prosecutors or police interrogators, and what was said in these conversations. He didn’t have a lawyer with him. Heck, he didn’t even have his MOTHER with him. And now he won’t be up for parole till he’s almost 60 years old.

Here’s the lesson: when you are facing felony criminal charges, your life is at stake. Your freedom. The lives of your loved ones and family members are being threatened, too. It is naive to expect that the criminal justice system works to protect you.

Criminal defense lawyers are entrusted with making sure that the system doesn’t fall short of the rights and protections that every single individual deserves in this country. Nothing less.

At times, that will mean that the defense lawyer must protect people from wrongdoing on the part of police and prosecutors.

That’s the reality today, and that is something that anyone facing a criminal charge in Texas or Wisconsin or elsewhere needs to understand.

For more, check our our web resources page, Top Five Mistakes in Defending a Criminal Case,  or Michael Lowe’s Case Results as well as his article:




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