A good step forward.
Photo of Dean Strang courtesy of Mueller Communications.
Dean Strang has long been regarded as one of Wisconsin’s best criminal defense lawyers. In recent weeks, he has also received international acclaim for his role in defending Steven Avery, as captured in the smash-hit Netflix series, Making a Murderer.
Avery, 53, was convicted of the 2005 killing of photographer Teresa Halbach. The case drew unusual attention because Avery had previously served eighteen years in prison for a sexual assault before DNA evidence proved his innocence. This prompted the Wisconsin legislature to form what was then known as the Avery Commission, which developed a series of procedural reforms meant to reduce wrongful convictions, many dealing with witness identification. These passed the Wisconsin legislature on October 31, 2005, the same day Halbach went missing after having spent time on Avery’s property.
Avery has consistently maintained his innocence of Halbach’s murder, as he did in the earlier case, and alleges that he was being framed because of his pending lawsuit against officials in Manitowoc County, Wisconsin. But his appeals were denied and his life sentence appeared irrevocable until the ten-hour Netflix series drew a massive audience and sparked cries to reopen the case and that of his nephew, Brendan Dassey, who was convicted as an accomplice. Now Avery has filed a new appeal and is represented by a new team of lawyers.
In Making a Murderer, Strang, 55, emerges as a sympathetic and occasionally heroic figure. He appears genuinely pained by Avery’s seemingly inexorable march to a second major conviction. In a recent article, he asserted that what bothers him most is that Avery, whom he believes is “not intellectually or emotionally equipped to withstand” the coercive pressure to which he has been subjected, has never wavered in his protestations of innocence.
“I know that sounds simplistic,” he told the reporter, “but you’re asking me at a gut level what’s most unsettling, and that’s it.”
A native of Milwaukee who has practiced law since 1985, Strang is now a partner at his own firm, Strang Bradley LLC, and teaches courses through the University of Wisconsin-Madison’s Division of Continuing Studies. He is the author of numerous articles, including an interview with attorney-author Bryan Stevenson in the December-January issue of The Progressive, as well as the author of a recent book about an infamous 1917 crime and questionable prosecution in Milwaukee.
I spoke with Strang at his offices in Madison earlier this week. At the start of our talk, I showed him a Buzzfeed spread of “15 Valentine’s Day Gifts for People Who Love the ‘Making a Murderer’ Attorneys,” including an “I Dream of Dean” coffee mug, and “Integrity is Sexy” T-shirts featuring Strang and co-counsel Jerry Buting. He hadn’t seen it before, and it left him at a loss for words.
Q: So what’s it like, being a key player in an international media phenomenon?
Strang: I don’t know because I don’t feel like one. I don’t participate in any of that other than when people send me a link to tease me. There were thousands of emails and now they’ve tapered down to twenty a day or something. It’s tapering off considerably. It was about 150 a day at the peak of it. I responded to most but not all of them and now old fashioned letters are coming in. Phone calls are coming. People are looking for a lawyer, often very sad situations. Sometimes it’s a distant injustice that still haunts somebody and sometimes it’s something current. Those are hard, because I can’t go out and do every case, or even many cases, for free.
Q: What is the best consequence of this publicity?
Strang: Good quality speaking opportunities, not in the media but to bar groups or university groups or business groups or government groups. Most of them just say, “We’d like you to give a keynote address and talk about what you want to talk about.” That’s really both flattering and wonderful because I’ve been a lawyer for more than thirty years and there are things I’d like to say about what’s wrong in our courts and the weaknesses of the system. So for those thirty years, understandably no one has been much interested in hearing what I have to say. Now people are willing to listen, so I think I have a duty to take up as many of these speaking offers as I can.
I’ve been a lawyer for more than thirty years and there are things I’d like to say about what’s wrong in our courts and the weaknesses of the system.
Q: Initially, the reaction to Making a Murderer was one of collective alarm at the conduct of police and prosecutors. But there now seems to be more of a critical or skeptical reaction, as in the recent article in The New Yorker, which questioned whether the filmmakers were fair and, most damningly, whether they demonstrated the same lack of humility about their own capacity for error as the law enforcement officials in the case. Do you think the series should have tried to be more evenhanded?
Strang: I disagree with the very premise of the question. You and I, everyone, would make different editorial decisions but this was a film, ten hours in total, and in that ten hours it devoted a little over three hours to the Avery trial, a little over an hour to the Dassey trial. The editorial decisions these filmmakers made in taking 200-plus hours of evidence in the Avery case and distilling it to three plus hours on the trial in the film were easily defensible decisions, it seems to me. Not the only decisions you could have made, but easily defensible decisions.
I’m glad you brought up Kathryn Schulz’s New Yorker piece. I’ve got it on my desk, I’ve read it twice. There’s much in it that’s thoughtful and interesting, insightful. But it was really sad to see a publication like The New Yorker and someone who’s clearly a talented writer fall into the same trap that the media constantly do.
We live in a country in which every time the police department or a prosecutor wants to issue a press release or hold a press conference, the overwhelming majority of media outlets treat what the police or prosecutors say as received wisdom. As if it came down on tablets, from the mount. There’s almost never a critical examination of what the police or prosecution has to say. Now when one film doesn’t hew to the prosecution line that's where the criticism falls: “You’re imbalanced, or you’re offering an unbalanced view, or you’re displaying hubris.”
[Calumet County District Attorney Ken] Kratz’s March 2, 2006 press conference turned out to be factually unsupportable, factually refuted by the evidence, and offered a story of a crime that was never presented in Steven Avery’s case. Never presented. And yet, for the ten months preceding his trial, that was accepted and repeated by the media as the truth about what happened.
It reveals, I think, one of the real weaknesses of our media, to be blunt about it. Right down to the level of Schulz simply parroting this claim of Mr. Kratz that sweat DNA was found on the hood latch of Teresa Halbach’s car as if that’s true, and it isn't. There is no such thing as sweat DNA. There is DNA that may be transferred in sweat or other bodily fluid potentially, if there’s loose epithelial cells sloughing off in your perspiration, but there was no evidence at trial of sweat. There wasn’t even any testing to establish that there wasn’t blood.
Mr. Kratz’s comments entirely omit the possibility that this DNA was transferred inadvertently by the DCI agent who testified that after swabbing in Teresa Halbach’s car—where we know Steven Avery’s DNA was found—he didn’t change his latex gloves and went out and popped the hood of her car. This could have been an entirely inadvertent transfer by a DCI agent and that was the evidence at trial. Mr. Kratz omits all of that and Ms. Schulz inquires no further than the sweat DNA argument of the former prosecutor and on that she condemns the objectivity of the filmmakers.
Q: You say in the final episode of the series that you wish, on some level, that Steven Avery is guilty because the thought of him being innocent is too painful to contemplate. Now I understand that an attorney saying his client is innocent—vouching—is considered poor form, but since you raised the subject of his possible guilt, let’s go there: How likely it is that, in your opinion, that Steven Avery committed this murder?
Strang: I don’t know. It’s a maybe. There’s certainly evidence pointing toward guilt. There’s evidence pointing away from guilt, towards innocence. I don’t know and I’ve never pretended to know who killed this poor young woman. I do know the values that our legal system proposes to hold, and one of those is presuming someone is innocent and then not convicting him unless that presumption of innocence is disproved beyond a reasonable doubt. I don’t think that happened here.
When I say that I selfishly hope he’s guilty, I mean I remain wracked by fair doubts. Objectively fair doubts that this verdict was wrong, that the system in which I’m an officer got this case wrong. That would be hard enough if a client went to jail for a month and was on probation for two years. It’s really not a happy doubt to have to carry when somebody goes to prison for life without parole.
Q: Reviewers seem to agree that the evidence of wrongful conviction is stronger for Avery’s nephew, Brendan Dassey, than for Avery himself. There we have a highly dubious confession from a young man whose will has obviously been overcome, but which a jury found credible. And there was active collusion between Dassey’s defense team and the prosecution, which an appellate court shrugged off. What does it say that the same signs of wrongful conviction that have appalled people all over the world sailed right past a jury and an appeals court?
Strang: I can’t speak to what was going through the jurors' minds. I share the widespread perception that the Dassey case casts in especially sharp relief the unreliability of the evidence and trial outcome. Again, I don’t know what went on in the jury room. I don’t know what life experiences and biases these jurors brought in with them and I don’t know how the discussions went.
I am a little more comfortable speaking about why it flew by the courts. Everywhere in an appeal there is what behavioral psychologists call a “confirmation bias” built into the appellate structure. And it’s built in through the standards of review that appellate courts apply to decisions of trial courts below them. Those standards of review usually are pretty forgiving. Did the trial judge abuse his or her discretion? Was the error clear or plain? Was it harmless error?
In most standards of review that apply to specific questions you might raise on appeal, there is a bias toward confirming what’s gone before, confirming the actions of the trial court. That’s a structural weakness in appellate review and it’s not just Wisconsin, it’s U.S. courts generally.
Beyond that, we have a very high volume intermediate court of appeals in this state and the intermediate court of appeals is the only court to which you have an appeal of right in Wisconsin. I don’t know the specific caseload statistics, but the caseload is daunting for our Wisconsin Court of Appeals, just a huge volume. Those cases are sort of flying by, on the assembly line. Brendan Dassey’s is not the first questionable conviction or even miscarriage of justice that has eluded the inspector’s eye. I wish I could say it was.
Q: We’ve seen other Wisconsin cases, like with Audrey Edmunds and Forest Shomburg, where convictions that were ultimately overturned were initially rubber-stamped by the appellate courts and the supreme court.
Strang: Right. And who are the advocates dogged enough to go back to the courts and to stick with these cases long after the courts have blessed the convictions and moved on? They’re law students. They’re even journalism students, undergraduate journalism students. They’re volunteer lawyers at big firms working for free. Innocence projects. In other words, they’re relative outsiders to the system who eventually achieve some sort of delayed justice for the wrongfully convicted—after all the people who have a duty and have taken an oath to do justice have moved on to something else.
That’s a real indictment of our whole system, because what it means is that at some basic level we’re not running a system of justice, we’re running a system of chance, and one that depends on the happy accident of some journalism students or some law students sticking with a case long after the fact to undo the unhappy accidents that the professionals in the system have caused.
That’s a real indictment of our whole system, because it means that we’re not running a system of justice, we’re running a system of chance, and one that depends on the happy accident of some journalism students or some law students sticking with a case.
Q: Your excellent 2013 book, “Worse Than the Devil,” recounts a case from nearly 100 years ago in which a group of Italian anarchists were charged in connection with a Milwaukee bombing that claimed the lives of nine policemen—the single greatest loss of officers in the line of duty before 9/11. You present compelling evidence of prosecutorial misconduct and wrongful conviction based on official indifference to the truth. Are there parallels between that case and the convictions—plural—of Steven Avery?
Strang: An inflamed public sentiment. Loathing for the defendants. Massive pretrial publicity. Outsider status for the accused. There are some parallels. There are also a whole lot of details between that 1917 trial of Italian immigrants in Milwaukee that do not look anything like the Steven Avery or Brendan Dassey trial.
Q: In an email exchange that we had last year over your book, you remarked: “The system is very, very human and flawed for all the reasons that people are flawed.” But the Avery case seems to be about something maybe worse than that—not just the human capacity for error but allegations that evidence was planted and an innocent man framed. Am I right to see the Avery case as being maybe in a category of its own, in terms of the behavior of law enforcement?
Strang: Well, obviously some of the circumstances to the Avery case are unusual to the point of being unique: Exonerated and then being charged with a new crime just over two years after he’s released on a crime he didn’t commit. That’s almost, I think, unprecedented in this country.
But beyond that, I don’t want to get too hyperbolic on the planting of evidence. It still does come down to human weaknesses and, in some ways, understandable—not acceptable, but understandable—human weaknesses. When the police plant evidence, they’re almost always doing that to strengthen a case against someone they truly believe is guilty. That is, you can frame a guilty man, too.
Usually, when police plant evidence or lie on the stand or exaggerate, when they take some action to augment their case untruthfully, they almost always do that because they believe the person is guilty. It really takes an abandoned act of evil to plant evidence or testify falsely against someone you know or believe to be innocent. I think that’s really very rare. I don’t think it’s all that rare that police bend the truth, break the rules and even plant evidence against people they assume or believe honestly to be guilty.
Q: What do you think of the announced plan by former Calumet County prosecutor Ken Kratz to write a book about the Avery case?
Strang: I think the world needs more books, not fewer, in general. I understand why someone like Mr. Kratz, who had a front-row seat to an especially compelling courtroom drama, might have things he wants to say about it.
For myself, I would be uncomfortable ever writing a book about a case in which I was a direct participant. I never will, actually. I’ve had at least a half-dozen offers of likely large advances and profit to write a book about the Avery case and I’m not doing it. I will not do it. I am writing another book, but it’s going to be about a trial that ended forty-two years before I was even born.
It’s not just the ethical minefield of trying to write a book and not violate a lawyer-client privilege or disclose confidential information. That’s certainly part of why I would not write a book about a case in which I was a lawyer. There’s also something inevitably self-aggrandizing about it. It's hard to be objective and to offer the reader something more than your own opinions and prejudices. I have thought a lot about this and I’m just not going to do it, ever.
Q: Are there larger lessons to be drawn from the fact that Steven Avery’s conviction has become an issue of interest to people all over the world? Does it say something about the yearning for good outcomes, the will of people to see that justice is done?
Strang: I think that’s exactly what it says. There’s something innate in human beings that recognizes and recoils from injustice. There’s something innate in human beings that seeks justice. Now, we define justice in different ways individually. But the seeking of it in general is a universal quality.
There’s something innate in human beings that recognizes and recoils from injustice.
I think the great value of the film is that it invites us to react as citizens and as human beings and to look at broader questions in the context of two small, compelling stories, of two individual people. But those two small stories raise some very big issues about criminal justice and the capacity of human institutions assembled together as a system to mete out justice accurately.
So I am sad—I can’t do anything about it, but I’m sad—to see people who think the film is calling them to act only as second string jurors or police officers come lately. The arm-chair sleuthing misses the real importance of the larger questions that the film raises. My suggestion is that we ought to be taking this film, or any documentary about a true crime, as citizens who are ultimately responsible for what happens in our nation’s courts, not taking it as second-string jurors. Twelve people already served as the jurors.
Q: What do we do with the knowledge of injustice if not to be arm-chair sleuths?
Strang: Look forward. Look at what’s happening in the courts in your county today. When you get called as a juror, how about making a real effort to apply presumption of innocence? How about making a real effort to hold the state to the burden of proving something beyond a reasonable doubt? How about being honest about what your biases are, and asking to be excused from a jury if you can’t set them aside? How about participating in a national debate about how police relate to the communities they serve?
Look around you rather than looking back to a distant county. Because wherever you live, whether that’s in Iceland or Maryland, there are courts fiddling with the liberty of your fellow citizens every day, right down the street from you. That, I think, is where most of us ought to be focusing our attention.
Bill Lueders is associate editor of The Progressive.