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  • Writer's pictureClayton T. Robertson

"Making a Murderer": Update and Reflections

By Clayton T. Robertson (Criminal Defense / Civil Litigation Attorney)

For those of you who have watched this Netflix series, I can assure you it is just as captivating -- and disturbing and frustrating -- to an attorney as it is to a non-attorney. Unfortunately, as criminal defense attorneys, we see this type of conduct by law enforcement (and the prosecution) far too often.

As a former prosecutor, I can tell you firsthand that the relationship between prosecutors and law enforcement is far too chummy for my taste. It's why they are collectively known as "the prosecution team." It's why when I was a prosecutor and I dumped a bad case my reaction to a cop calling me to read me the riot act (because I dismissed "his" case) didn't go over very well. I essentially told him to go pound sand (and I later told my boss at the DA's office the same thing). It takes a brave soul to do that at a DA's office.

Whether it's "lost evidence" or key information disclosed late to the defense team, or never disclosed at all, or a series of missteps by police investigators, or worse, it all produces the same result -- justice is denied and the innocent are convicted. Our court system is plagued with such stories, including widespread examples of DNA analyses that exonerate the accused decades after their convictions. It's all even worse when someone is treated differently because of the color of their skin, or where they came from, or their socioeconomic status.

Sometimes, it's difficult to know whether it's laziness, incompetence, or some combination of both. Or whether it's an unbridled desire to win by an officer or a prosecutor when justice should be their aim. Or whether it's a form of individual or systemic prejudice or racism or a form of institutional bias by law enforcement leading to widespread police misconduct. Or a combination of some or all of these.

I've always had a saying in life: "Never attribute ill intent to someone when pure stupidity will suffice." I've also had another belief: "If you don't like someone, you haven't gotten to know them well enough." Both of these mottos have been severely challenged in my job as a criminal defense attorney, particularly when you realize someone just doesn't care. They want to forget about the consequences of their actions. Or they grow callous to them. Or they just want to win at any cost because their pride or ego is at stake. Or, worse, they refuse to acknowledge their biases or prejudices. In any event, that's the way persons and groups suffer. (Moreover, recent events concerning police misconduct sharpen the focus on these and other issues, including issues about race and socioeconomic status.)

Regardless of the ultimate outcome, Steven Avery's appellate attorney, Kathleen Zellner, has shown and continues to show the type of tenaciousness and relentless zealousness that any truly gifted attorney must possess to right the wrongs of this world. If it's not this client, it's another client. My point is that while you can always collect knowledge, and you can build skills, you can't acquire a personality trait. You either have a "dog with a bone" mentality that doesn't give up or bow to social pressure, or you learn to lose. This means you must learn to ask tough questions and refuse to take "no" for an answer. And, frankly, you must also learn to question or re-examine your own beliefs, biases, and prejudices.

If you're interested in keeping up on the Steven Avery case, the following link will take you to the most recent round of briefs filed in the case by Kathleen Zellner. Recent events include, specifically, the identification of a new witness (previously either ignored by police or whose report or tip was not disclosed to the defense) and a new possible suspect. This is a significant case development happening because of his attorney's tenaciousness and unwillingness to give up. For better or worse, sometimes a defense attorney needs to "solve the case," and for that you need an investigative mindset.

Regardless of what you think of Steven Avery, or whether you believe he's innocent or not, I assure you, this is the type of attorney you want. It's how I litigate, and I also won't stop.


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