It does my heart good to see the comments people are making on our Facebook page about my last post discussing the Steven Avery murder case and the Netflix series Making of a Murderer. It makes me think that what I am trying to do here might actually be starting to work.
I’m trying to do two things (which are two sides of the same coin): first, I want to explain to people as best I can how our criminal justice system really works, and what criminal lawyers really do, based on my own experiences working as a criminal defense lawyer for over thirty years. Second, I hope to get people thinking and talking about it. At least people are talking. It’s a start.
I can’t pretend to be able to explain to everyone how our criminal justice system works. Heck, I’ve been doing this forever and sometimes even I don’t understand it. But when it comes to basic concepts like guilt or innocence I have some thoughts.
My first thought is that guilt or innocence is largely irrelevant.
I tell everyone the same thing, clients and trolls alike, about every case:
I wasn’t there. I have no idea what did or did not happen.
Even if I had been there I may not know. I’ve actually seen more cases than I can count where witnesses were physically present when a crime was being committed and either did not know or did not understand that it was happening (with Avery’s case this may apply to Brendan Dassey.) Ultimately whether or not a crime was committed is entirely up to people (who were definitely not there) to decide. They’re called prosecutors.
Crimes don’t grow on trees. Crimes are decisions made by prosecutors. Period. This is the first lesson in criminal justice, because it’s all about the lawyers, stupid (sorry, it’s an old joke). Whether people like or understand that, it is. It just is.
I say this because I get so many rude and negative comments from people beaming up from their dingy basements screaming screeds about what filthy scum money-grubbing lawyers are. Some of them may have point. Some lawyers are. There are one or two in the Avery case I can think of…
Prosecutors are like me, those dreaded lawyers. They look at the evidence and if they are honorable and competent they try to figure out two things:
- Does the evidence they have available make it probable that a crime occurred, and if so, what crime?
- Is there sufficient evidence to prove that a specific person or persons committed that crime or crimes beyond a reasonable doubt?
There’s no magic involved. It’s a big responsibility. I know. I’ve been there. When I ran the prosecutor’s office in Saipan years ago, I once had a case involving a very horrible allegation where I was really unsure what happened. I admit it. There was probable cause but the answer to that second question, proof beyond a reasonable doubt, was unclear. I succumbed to pressure from the cops and we moved forward with the prosecution. I was young and I admit that I’m not sure whether I would have handled this the same way today. Probably not. I may not be perfect but I’d be much further from perfect if I didn’t learn from my mistakes; experience is the most important thing a lawyer has in his or her arsenal.
Ultimately the decision was taken away from me by the court. The case was dismissed. I was upset since I was in the middle of it, and probably not as objective as I should have been. That happens too where prosecutors are concerned, every day, which is precisely why it can be a big problem when everyone thinks they know for sure what happened and who is guilty. It’s beyond difficult to know that in many cases. I know.
See, that thing I was talking about earlier when I said I am trying to teach people about criminal law based on experiences that I have had? Let’s face it. Not many of you reading this have lain awake all night, staring at the ceiling, wondering whether or not you are prosecuting an innocent man. It’s miserable. Especially in the tropics when you’re too cheap to buy an air conditioner (my wife soon made me fix that.)
Based on experiences like this, here is the lesson I have learned: NOBODY knows, sometimes even if they were there, whether or not a crime occurred and even if it did, what to call it. I have used that fact to great effect when working with juries and prosecutors alike for decades. It’s not a trick. I simply understand that this is what it all comes down to. It’s what makes our criminal justice system the envy of the modern world. It’s all about the presumption of innocence, the burden to prove guilt beyond a reasonable doubt, to a fair trial and the right to cross-examine witnesses and more. It’s justice. At least it’s the best approximation that exists: the U.S. Constitution.
People like Nancy Grace who sit there all day ranting about being absolutely certain about guilt or innocence are idiots. She does not have a clue. Her biggest rant about Avery seems to be that his ex-girlfriend says he is a monster. Give me a break. Ever been to divorce court? Monster accusations are a dime a dozen. You call that evidence? I have no idea why they pay people like that to comment on cases when I am willing to do this for free. It’s probably because I’m trying to be logical and fair, not dramatic and ridiculous. Not as much fun to watch I guess.
The most important thing I heard anyone say in Making of a Murderer was when Dean Strang, Avery’s defense attorney (who is the ultimate ‘lawyer’s lawyer’), said that the biggest problem with our system is that too many of the people involved are so sure that they know the truth about what happened. In fact, none of them do. Maybe even Steven Avery. Who knows? I sure don’t. Do you?
What does matter is evidence.
I could write a book on that, but that’s already been done. It comes down to evidence, what it does or does not prove, whether it was collected correctly, how it was analyzed, what different reasons there might be for its existence. The list goes on. If you are a criminal attorney like me, you need to think about whether or not the evidence is admissible, different reasons it is or isn’t, and what explanations there are about how it does or does not tend to prove guilt. (By ‘criminal attorney’ I mean both prosecutors and defense lawyers.)
But people get so angry when criminal defense attorneys simply do their jobs correctly. They just don’t understand. There is no absolute truth. There are just best guesses. And the best way to make your best guess is to do the best work you are capable of doing. Period. That is all that matters. This does not make you a scumbag or a sociopath or a ‘criminal hugger’. It makes you a good lawyer.
Where am I going with all of this? Back to Avery. Many people tell me that they wish they knew more about how lawyers really view the ins and outs of cases like this. From the inside, I guess. Even though I have not seen the files on this case, I have been able to see some things thanks to this excellent documentary series; things worth talking about, good and bad.
So, just for grins, I am going to try to break it down a bit more, with play-by-play analysis of the show from the beginning. This means I have to re-watch it. But it’s worth doing that if it means that it might help some of the folks out there who are so upset about guilt or innocence to understand how the criminal justice system worked in this case. At least based on the part they showed on TV.
More on that next time.
If you would like to contact Craig Platt for criminal defense services, follow this link for his contact information or a confidential form you can fill out about your case.