Alan Tuerkheimer
‘Making a Murderer’ is the popular web television series exploring the story of Steven Avery who served 18 years in prison for sexual assault before being exonerated in 2003. Shortly after his release, he was arrested in connection with the murder of a local photographer and convicted in 2007, despite proclaiming his innocence. Given the attention this series generated I thought it would be interesting to talk to Dean Strang, Steven Avery’s lawyer on the murder case, and hear his perspective on ‘Making a Murderer,’ juries, and our justice system as a whole. What follows are my questions and his answers:
As a jury consultant, I have picked over a hundred juries, and I find it interesting that attorneys are typically not overly enthused about this phase of trial. Therefore, I asked Dean Strang how he felt about picking juries:
Dean Strang
Voir dire is a good time to really dig into what jurors’ preconceptions are, what their unalterable attitudes are, and what their value system may be. Jury selection, and specifically talking to jurors, also gives them the opportunity to see what you care about and what’s important to the case.
For me personally, it’s also a time I find myself getting over trial jitters where I can think clearly and try to eliminate certain barriers that anxiety and nerves can create. In a sense it’s a warm up in the way a singer might warm up before going on stage or someone who is going to read poetry. It’s finding your voice, getting yourself in the moment and getting comfortable hearing the sound of your voice discussing the facts and themes of the case.
Federal court is more limited than state court regarding getting jurors to engage. There are a lot of areas federal court has advantages over state court, such as, I think an appointed judiciary tends to perform more neutrally and faithfully than an elected judiciary. But a specific weakness in federal court is lawyers on both sides have obstacles identifying jurors who are there for the wrong reasons, who are going to conduct themselves less than candidly, or who are unable or unwilling to confront their own preconceptions or biases.
Alan Tuerkheimer
Given what Mr. Strang said I asked him whether he would rather try a case before a jury or a judge. I was not surprised by his answer:
Dean Strang
I almost always prefer trying a case to a jury. Judges tend to be overly conditioned, and judges tend to, unintentionally, lose track of first principles such as the presumption of innocence means something, and holding the prosecution to its burden of proof, and even fairness. Again, this is not intentional but they become overly conditioned and here is how that can happen. When you’re sitting on the bench 5 days a week and of the criminal cases, 94% involve the defendant coming in and saying ‘I did it I am guilty.’ When this happens, the hypothesis of innocence until proven guilty becomes infallible and abstract and can get lost all together for a judge. Jurors are much less conditioned, they come in wanting to do justice and wanting to be fair. They want to get the facts right and come in wanting to follow the law. There is no perfect system for finding facts, but most of the time I would rather take my chances on a less conditioned layperson.
Alan Tuerkheimer
While Mr. Strang said he prefers trying cases in front of juries, and he certainly has the right combination of confidence, dynamism and communication skills to connect with a jury, one must wonder if he has confidence in jury verdicts especially after Steven Avery was convicted of murder despite his team’s best efforts to put forward reasonable doubt. So I asked him if jurors “get it right” most of the time:
Dean Strang
I think they try to get it right most of the time. How often they have success is hard to say. The data on that are contestable – a 4% erroneous conviction rate is a number you commonly see, but the fact is that our jury system is a human enterprise and it is always going to be flawed and imperfect. Having 12 people deciding things by committee has all the benefits and detriments of committees. Yes you harness 12 minds and 12 perspectives but you also rig the process to favor compromise and favor the adroit politicker in the group over the principled but inarticulate members of the group. A jury really is just another word for a committee.
Alan Tuerkheimer
Some of us are familiar with the CSI Effect. This is named for a television program, where a fictional team of crime scene investigators solve murders by gathering and analyzing forensic evidence, often leading to a “smoking gun.” The CSI effect is how this show and related crime shows, and the exaggerated portrayal of forensic science, influences public perception to the point where jurors demand more forensic evidence in trials. Many lawyers ask prospective jurors about this during jury selection. Recently, I have seen attorneys asking prospective jurors whether they watched ‘Making a Murderer.’ I wanted Dean Strang’s reaction to this:
Dean Strang
I have heard that now from 3 people in 2 counties. I think if I were a prosecutor I would ask that right now and probably as a defense lawyer I would ask about it if the prosecutor didn’t bring it out first. Asking about ‘Making a Murderer’ is an effective way to get at whether a potential juror is somebody who will come to certainty almost immediately based on fragmentary information. It’s a good pathway into how a juror is likely to fulfill their role and perform.
Alan Tuerkheimer
Since ‘Making a Murderer’ has permeated so many aspects of our culture (there’s even a Simpsons spoof out now) I sought Dean Strang’s reaction to the impact it will continue to have on the public psyche and the justice system:
Dean Strang
I think it will fade rapidly because the movie itself is a pop cultural phenomenon and that stream moves very quickly. Something new will come along, and the overall memory of pop cultural phenomenon is very transient. Of course some things have a more lasting effect. In a different pop cultural setting, take Madonna. She burst on the scene around 1984 and she is no longer constant tabloid material and little girls aren’t dressing like her anymore. But she was a significant enough figure at one time in pop culture that 30 plus years later there’s a residual interest in her and in some ways she has deflected or bent the course of popular music. She changed its direction. There is just no way to know which pop cultural phenomenon will have that effect and which will disappear. Some of these pop culture sensations disappear and leave almost no trace while others slightly influence the overall flow of the culture. I have no idea what ‘Making a Murderer’ will do, there’s no way to know that.
Alan Tuerkheimer
The Manitowoc area was flooded with information about both Steven Avery cases. It seemed that anyone in the area knew something about Steven Avery. When a case generates so much publicity it is hard to find jurors who know nothing about the case. Is it more difficult for jurors in high profile cases to make decisions based solely on the evidence?
Dean Strang
As an order of magnitude it makes it more difficult. Jurors are human, and we all start to form opinions about something from the moment we are first given information about it. So if the first information the jury has comes in the form of a gripping horrific inflammatory press conference that grabs their attention, it will immediately start shaping juror attitudes especially if the press conference is conducted by someone widely regarded as an authority figure.
In a highly publicized case, if a narrative is laid out in a press conference or at some point before trial, and is replayed over and over in the weeks and months leading up to trial, since you’re dealing with the human mind, the more exposures you get to the narrative the more likely it is to stick with us. It lessens our ability to know where we first heard it.
So you get to trial and jurors have been inoculated for weeks and months with a narrative around which they will have inevitably drawn conclusions or tentative conclusions that in effect you have to rebut or try and undo. You now enormously complicated the jurors’ task and if that narrative was one of guilt you have turned the presumption of innocence upside down. Because you now are in the position to try and undo conclusions the jurors already have drawn.
Alan Tuerkheimer
His answer made me wonder whether he feels there should be changes to the way jurors operate in our system of justice:
Dean Strang
There’s obviously a certain amount of legitimacy we assign jurors and juries which in a way is an article of faith and not something that’s demonstrably warranted or earned. If you’re going to resolve human conflicts in some sort of orderly civilized way through a governmental process you have to figure out how do we find facts and try to determine the truth. You can leave it to one judge which is an option in America. You can adopt a Continental system where there’s a small committee of people composed of maybe a professional judge or two, and then maybe some laypeople, in whatever combination. Or you can do an entirely lay jury.
No matter what system you use, it is composed of human beings and we can think of justice as a search for the truth but we have to put more emphasis on search than on truth because you can make an industrious, energetic thoroughly honest search for the truth and still not get to it in spite of your best efforts.
Alan Tuerkheimer
Circling back to picking juries, those who survive the strikes form the jury. To me, jury selection is the most critical phase of trial, and I wondered whether Mr. Strang agreed with me since I believe cases are won or lost at jury selection:
Dean Strang
I think that it is not at all uncommon to win or lose at the selection of jurors but I want to qualify that. It is not at all uncommon after jury selection to have a clear path for one side or the other, and for that side to have momentum going down the path that leads to victory for that side. A qualification is that you then can botch it. Either side can botch it. Even if you have the most favorable jury imaginable for the narrative that your side is going to tell it doesn’t guarantee you’re not going to forfeit your advantage.