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The Anatomy of ‘Making a Murderer’: DNA testing hasn’t put an end to wrongful convictions

For the Monitor
Last modified: 2/28/2016 1:17:04 AM
(The following is the third part in an occasional series about legal issues raised by the documentary “Making a Murderer.” The first two pieces were published Jan. 31 and Feb. 14.)

Research from the Innocence Project has found that three of the factors that contribute to wrongful convictions are false confessions, government misconduct and eyewitness misidentification.

All three of these factors can be found in Making a Murderer, the Netflix series about the Wisconsin criminal cases involving Steven Avery, and later his nephew Brenden Dassey, over a period of 20-plus years.

A statement Brendan made to the police is an example of what can happened when the police interview a young boy with low intelligence and attempt to overcome his denials with interrogation techniques. As to government misconduct, the documentary also lays out a case of government bias against Avery, and later Brendan, that spans two decades. And finally, the process by which Avery was identified as a suspect in the 1985 rape case is a classic example of a suggestive identification procedure leading to a conviction that was later proven erroneous by DNA evidence.

Many people mistakenly believe that wrongful convictions are a relic of the past now that we have DNA testing. What they don’t realize is only a small percentage of cases are decided based upon DNA evidence. TV shows such as NCIS have also contributed to the idea that all criminal cases are decided at the state forensic lab.

There are two reason why science has not put an end to people being convicted of crimes that they did not commit. The first is that there can be human error in the application of the science. The second is that most criminal cases are based upon one type of evidence: the memories and observations of human beings.

Avery was convicted of rape based upon the memory and observations of Penny Beerntsen, a woman who was raped by a stranger while taking a walk on a beach in 1985. Under the law, the testimony of a victim need not be corroborated by testimony from another person or from scientific evidence. The testimony of Beerntsen was not corroborated by any other witness or evidence, other than the fact that she had physical injuries.

Beerntsen was so positive that it was Avery who had raped her that she testified, “It’s like a photo in my memory.” Avery’s lawyer called more than six alibi witnesses to testify that he wasn’t even near the location of the rape at the time it happened. The alibi witnesses could not overcome the testimony of, as Avery’s lawyer described the victim, “a smart, educated, well-to-do, church-going lady.” That was in 1985. The past 30 years of research on human memory has shown that our memories are not at all like photographs. When we perceive and recall events, there are many factors that distort our memories. Trauma can distort a person’s recollection, as can influence by others, such as investigating police officers.

When Beerntsen was in the hospital after being raped, one of the local sheriff’s deputies was sent to interview her. As is often the case in this series, the investigating officer had a conflict of interest. Earlier that same year, Avery had been investigated for an incident involving his pulling a gun on a cousin who he thought was spreading vicious rumors about him. The deputy assigned to interview Beerntsen was a close friend of the cousin Avery had threatened earlier that same year.

As Beerntsen did not know the identity of her assailant, all she could do is give a description of the man who raped her. When she described the man, the deputy replied, “That’s Steven Avery.” The police also used suggestive lineup procedures that eventually led to Beerntsen’s unwavering trial testimony that Avery was her attacker.

There has been some progress in the police procedures used to identify suspects since 1985. This progress has come about because of research showing that police bias can contribute to a witness incorrectly identifying a person as a perpetrator.

In 2015, the New Hampshire Attorney General’s Office adopted new procedures for police to use when conducting photo lineups. These new procedures are referred to as the evidence-based best practices. In adopting these new police procedures, the AG’s office recognized the “fallibility of human memory.” One important factor in these new procedures is something called “blind administration,” which means that the officer conducting the lineup does not know the identity of the suspect. The purpose is to prevent the officer from providing unintentional cues that may prompt an incorrect identification.

Another factor in wrongful convictions is invalidated and/or improper forensic evidence. In the past 10 years, convictions have been set aside due to faulty arson evidence, faulty shaken baby syndrome evidence, faulty bite-mark evidence and faulty hair analysis. Not only has science not put an end to wrongful convictions, what has passed for science in some cases has contributed to wrongful convictions. Even DNA isn’t perfect. In Making a Murderer, the state lab analyst’s DNA turned up in one of the exhibits in Avery’s second trial due to her mishandling of the evidence.

Avery was exonerated in his first case due to advances in DNA evidence. The most damning evidence against him in his murder trial was DNA evidence linking him to the victim’s car and a set of keys. Avery’s lawyers were able to mount a defense that suggested the DNA evidence was planted by a police force looking for revenge after being humiliated by Avery’s prior exoneration.

There is a breakthrough moment for the defense when they discover a syringe hole in the cap of a vial of Avery’s blood that was in storage from his first trial. This allows the defense to argue that the police had a source of Avery’s blood with which to plant DNA evidence linking him to the murder. This theory is seriously undermined when the prosecution calls an unexpected expert witness at trial. This expert testifies that that the DNA linking Avery to the murder could not have come from the vial in question as the blood in the vial contained a substance called EDTA and there was no EDTA in the blood found on the victim’s car and keys.

The series ends with Avery’s lawyers pondering his future legal options. One option is that someday there will be some test or new science that could establish that Avery’s DNA could have been planted by the police. The lawyers also observe that advancements in forensic science established Avery’s innocence on his first charge, and the very same type of scientific progress may be the only hope he has to reverse his murder conviction.

I would also add the observation that the media circus surrounding his murder trial may have played a role in his conviction. His only hope for a new trial is the media attention raised by Making a Murderer.

The obvious observation here is that jury trials, like all human endeavors, are not perfect and probably never will be. Avery’s lawyer observes that the system does not like to acknowledge that it is not perfect: “There is a tragic lack of humility in the criminal justice system – all members of the criminal justice system have an unwarranted belief that they are getting it right.”

(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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