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The Anatomy of ‘Making a Murderer’: Media changes the game in high-profile cases

For the Monitor
Last modified: 2/14/2016 1:09:24 AM
(The following is the second part in an occasional series about legal issues raised by the documentary “Making a Murderer.” Part one was published on Jan. 31.)

‘Murder is hot.”

That was the observation of an NBC Dateline reporter as she tried to explain the media circus surrounding Steven Avery’s murder trial in the documentary Making a Murderer. The 10-part series not only raises concerns about the criminal justice system but also puts the media under a microscope. The question posed is not whether Avery and his nephew are guilty, but whether they received a fair trial. To answer, it’s just as important to consider the media coverage of the trial as it is to analyze the court rulings or evidence presented to the jury.

Dateline showed no interest in Avery after he was convicted of a rape he did not commit 17 years earlier. For several years, Avery’s mother worked tirelessly to pique the interest of numerous national media outlets, like Dateline, about her son’s wrongful conviction.

Avery was eventually exonerated on the rape charge – not by media coverage but through the work of his lawyers and the DNA testing that finally demonstrated that another man committed the crime. Dateline showed an interest only after Avery was arrested for the murder of a local woman shortly after his release from prison.

The woman was young, pretty and photogenic, and the media had its story: A man who was given a second chance threw it away with the gruesome murder of an attractive young woman.

The fact that most of the community bought into the narrative that Avery was guilty before the trial even started was evident when his lawyers reviewed the juror questionnaires in preparation for jury selection. They looked up from the questionnaires with the resignation that every potential juror had already formed an opinion: Avery was guilty.

As someone who has driven into a few court parking lots overflowing with satellite trucks, I understand the frustration Avery’s lawyers felt when trying to get the jurors to keep an open mind against the backdrop of a swarm of media coverage that portrayed their client as an evil man. The law does not require that jurors be free of opinions about the defendant’s guilt to be qualified to serve on a criminal jury trial. A juror simply has to say he or she can put aside any opinions about the defendant’s guilt and listen to the evidence.

Tried in public

The process of reversing the presumption of innocence began at one of the first press conferences the district attorney held shortly after Avery’s arrest.

After discussing the specific DNA evidence implicating Avery, the DA told the media that it was preposterous that his DNA could have been planted by the police and “it is no longer a question, at least in my mind, as the special prosecutor in this case, who is responsible for the death of Teresa Halbach.”

Whatever sliver of doubt remained in the minds of the community was quashed at the subsequent press conferences. A few months later, after the police obtained a questionable confession from Avery’s 16-year-old nephew, Brendan, the DA held another press conference to talk about the juvenile’s confession.

Before he detailed the gory events laid out in Brendan’s story to the police, the prosecutor interested viewers by telling them that anyone under 15 should leave the room. Later in the press conference, he paused and got choked up at the part of Brendan’s story where the victim’s throat was slashed. While some may defend this press conference as part of the prosecutor’s duty to inform the public about issues affecting public safety, the DA could have addressed the public safety concerns without going into all of the gory details of the questionable confession.

At the end of this press conference, a reporter asked the DA if there was any physical evidence that matched Brendan’s confession. The prosecutor wouldn’t answer, saying it would be contrary to the narrative of guilt that he was trying to build.

One thing that happened in Avery’s trial that I have never seen happen in New Hampshire is that both the prosecutor and the defense attorneys gave daily press conferences, where they opined about the evidence that had been presented that day. Presumably, the jurors were told not to read or watch any media, but it is still very unusual for the attorneys to talk about the evidence as the case unfolds.

At these press conferences, the prosecutor was allowed to make his case to the community in a way he would not be allowed to at trial. Lawyers, and especially prosecutors, are not allowed to give a personal opinion as to the defendant’s guilt as it may unduly sway the jury.

At trial, the prosecutor would not be able to introduce Brendan’s confession. While the confession would be admissible against Brendan, as he was a party in his own case, it would not be admissible against Avery. That would be considered hearsay, and any mention of it may violate Avery’s right to confront the evidence against him.

Any juror who followed the press coverage of Avery’s case would have information about the case that was not admissible at trial. And those same jurors would not have heard that there was no physical evidence that supported the nephew’s confession.

Tainted venue

So why didn’t Avery’s lawyers seek a change of venue? There’s no explanation in the documentary. It’s only speculation, but maybe they were hoping the jury would see Avery as one of their own and a man who was wronged. Or maybe the alternative venues were not good choices.

Over the past 30 to 40 years, courts have increasingly looked upon defense requests for a change of venue with disfavor. The rationale is that concerns about pre-trial publicity are better addressed in the jury selection process and not by a change of venue.

In three of the most high-profile murder trials in New Hampshire – Pamela Smart, Michael Addison and the Mont Vernon case – the defense requests for a change of venue were all denied despite evidence that many of the jurors had formed opinions about those cases prior to trial.

It is not only defense attorneys who question the fairness of legal proceedings conducted in the media spotlight. When asked about the possibility of cameras in the U.S. Supreme Court, Justice Scalia responded: “Not a chance, because we don’t want to become entertainment. I think there’s something sick about making entertainment out of other people’s legal problems.”

Unfortunately for Avery, it was the prosecutor who best played the home-field advantage in his closing remarks.

In response to defense claims that the local police had planted DNA evidence to set up Avery, the DA observed, “Around here, as opposed to big cities, it is deplorable to say that the police would frame somebody. . . . Are you willing to say that your cops killed her.”

Most people, myself included, think Avery’s lawyers did a great job. There was one small detail in particular that showed they had experience in high-profile cases.

When it was announced that the jury had a verdict, lawyers prepared Avery’s family by explaining that after the verdict was announced, they should go directly to the assigned conference room and wait for the attorneys to join them. Avery’s lawyers knew from experience what could happen after a verdict.

Brendan’s lawyers did not have the same forethought. After Brendan is found guilty, we see his mother running alone down the court steps, chased by reporters and cameras as she experiences a mental breakdown due to the shock of the verdict.

If there is a moment to cheer, it is when she gets to her car and her companion turns to the cameras and shouts, “What the (expletive) is wrong with you people!”

Three years after Avery was convicted, the prosecutor who tried his case became embroiled in an unrelated scandal when it is disclosed that he sent sexting messages to victims of domestic violence. The only person who misses the irony of the situation is the DA himself, as he protests the media coverage of the scandal declaring: “It’s my reputation, and once the genie is out of the bottle, just the allegation can ruin a prosecutor. What does that mean to you? It’s not you. It’s not your family. It’s not your reputation.”

I watched a documentary on PBS about Bonnie and Clyde recently, and it made me think of the Avery case. The story of the attractive young gangsters didn’t become a sensation until their photos were made public. After they were gunned downed in Dallas, a local newspaper sent a large flower arrangement to the funerals of the two outlaws as a small token of gratitude for all of the newspapers they sold.

(Donna J. Brown is a partner at Wadleigh, Starr and Peters in Manchester, where she practices criminal law. Before going into private practice, she was an attorney at the New Hampshire Public Defender’s Office for 29 years. While at the public defender’s office, she was trial counsel in several local high-profile cases, as well as counsel for one of the co-defendants in the Mont Vernon murder trials.)


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