
Avery Case Defense Lawyer Dean Strang Speaks
Out

Posted: January 27, 2016
Bill Lueders
Photo of Dean Strang courtesy of Mueller Communications.
Dean Strang has long been regarded as one of Wisconsin’s best criminal
defense lawyers. In recent weeks, he has also received international
acclaim for his role in defending Steven Avery, as captured in the
smash-hit Netflix series, Making a Murderer.
Avery, 53, was convicted of the 2005 killing of photographer Teresa
Halbach. The case drew unusual attention because Avery had previously
served eighteen years in prison for a sexual assault before DNA
evidence proved his innocence. This prompted the Wisconsin legislature
to form what was then known as the Avery Commission, which developed a
series of procedural reforms meant to reduce wrongful convictions, many
dealing with witness identification. These passed the Wisconsin
legislature on October 31, 2005, the same day Halbach went missing
after having spent time on Avery’s property.
Avery has consistently maintained his innocence of Halbach’s murder, as
he did in the earlier case, and alleges that he was being framed
because of his pending lawsuit against officials in Manitowoc County,
Wisconsin. But his appeals were denied and his life sentence appeared
irrevocable until the ten-hour Netflix series drew a massive audience
and sparked cries to reopen the case and that of his nephew, Brendan
Dassey, who was convicted as an accomplice. Now Avery has filed a new
appeal and is represented by a new team of lawyers.
In Making a Murderer, Strang, 55, emerges as a sympathetic and
occasionally heroic figure. He appears genuinely pained by Avery’s
seemingly inexorable march to a second major conviction. In a recent
article, he asserted that what bothers him most is that Avery, whom he
believes is “not intellectually or emotionally equipped to withstand”
the coercive pressure to which he has been subjected, has never wavered
in his protestations of innocence.
“I know that sounds simplistic,” he told the reporter, “but you’re
asking me at a gut level what’s most unsettling, and that’s it.”
A native of Milwaukee who has practiced law since 1985, Strang is now a
partner at his own firm, Strang Bradley LLC, and teaches courses
through the University of Wisconsin-Madison’s Division of Continuing
Studies. He is the author of numerous articles, including an interview
with attorney-author Bryan Stevenson in the December-January issue of
The Progressive, as well as the author of a recent book about an
infamous 1917 crime and questionable prosecution in Milwaukee.
I spoke with Strang at his offices in Madison earlier this week. At the
start of our talk, I showed him a Buzzfeed spread of “15 Valentine’s
Day Gifts for People Who Love the ‘Making a Murderer’ Attorneys,”
including an “I Dream of Dean” coffee mug, and “Integrity is Sexy”
T-shirts featuring Strang and co-counsel Jerry Buting. He hadn’t seen
it before, and it left him at a loss for words.
Q: So what’s it like, being a
key player in an international media phenomenon?
Strang: I don’t know
because I don’t feel like one. I don’t participate in any of that other
than when people send me a link to tease me. There were thousands of
emails and now they’ve tapered down to twenty a day or something. It’s
tapering off considerably. It was about 150 a day at the peak of it. I
responded to most but not all of them and now old fashioned letters are
coming in. Phone calls are coming. People are looking for a lawyer,
often very sad situations. Sometimes it’s a distant injustice that
still haunts somebody and sometimes it’s something current. Those are
hard, because I can’t go out and do every case, or even many cases, for
free.
Q: What is the best consequence
of this publicity?
Strang: Good quality
speaking opportunities, not in the media but to bar groups or
university groups or business groups or government groups. Most of them
just say, “We’d like you to give a keynote address and talk about what
you want to talk about.” That’s really both flattering and wonderful
because I’ve been a lawyer for more than thirty years and there are
things I’d like to say about what’s wrong in our courts and the
weaknesses of the system. So for those thirty years, understandably no
one has been much interested in hearing what I have to say. Now people
are willing to listen, so I think I have a duty to take up as many of
these speaking offers as I can.
I’ve been a lawyer for more than thirty years and there are things I’d
like to say about what’s wrong in our courts and the weaknesses of the
system.
Q: Initially, the reaction to
Making a Murderer was one of collective alarm at the conduct of police
and prosecutors. But there now seems to be more of a critical or
skeptical reaction, as in the recent article in The New Yorker, which
questioned whether the filmmakers were fair and, most damningly,
whether they demonstrated the same lack of humility about their own
capacity for error as the law enforcement officials in the case. Do you
think the series should have tried to be more evenhanded?
Strang: I disagree with
the very premise of the question. You and I, everyone, would make
different editorial decisions but this was a film, ten hours in total,
and in that ten hours it devoted a little over three hours to the Avery
trial, a little over an hour to the Dassey trial. The editorial
decisions these filmmakers made in taking 200-plus hours of evidence in
the Avery case and distilling it to three plus hours on the trial in
the film were easily defensible decisions, it seems to me. Not the only
decisions you could have made, but easily defensible decisions.
I’m glad you brought up Kathryn Schulz’s New Yorker piece. I’ve got it
on my desk, I’ve read it twice. There’s much in it that’s thoughtful
and interesting, insightful. But it was really sad to see a publication
like The New Yorker and someone who’s clearly a talented writer fall
into the same trap that the media constantly do.
We live in a country in which every time the police department or a
prosecutor wants to issue a press release or hold a press conference,
the overwhelming majority of media outlets treat what the police or
prosecutors say as received wisdom. As if it came down on tablets, from
the mount. There’s almost never a critical examination of what the
police or prosecution has to say. Now when one film doesn’t hew to the
prosecution line that's where the criticism falls: “You’re imbalanced,
or you’re offering an unbalanced view, or you’re displaying hubris.”
[Calumet County District Attorney Ken] Kratz’s March 2, 2006 press
conference turned out to be factually unsupportable, factually refuted
by the evidence, and offered a story of a crime that was never
presented in Steven Avery’s case. Never presented. And yet, for the ten
months preceding his trial, that was accepted and repeated by the media
as the truth about what happened.
It reveals, I think, one of the real weaknesses of our media, to be
blunt about it. Right down to the level of Schulz simply parroting this
claim of Mr. Kratz that sweat DNA was found on the hood latch of Teresa
Halbach’s car as if that’s true, and it isn't. There is no such thing
as sweat DNA. There is DNA that may be transferred in sweat or other
bodily fluid potentially, if there’s loose epithelial cells sloughing
off in your perspiration, but there was no evidence at trial of sweat.
There wasn’t even any testing to establish that there wasn’t blood.
Mr. Kratz’s comments entirely omit the possibility that this DNA was
transferred inadvertently by the DCI agent who testified that after
swabbing in Teresa Halbach’s car—where we know Steven Avery’s DNA was
found—he didn’t change his latex gloves and went out and popped the
hood of her car. This could have been an entirely inadvertent transfer
by a DCI agent and that was the evidence at trial. Mr. Kratz omits all
of that and Ms. Schulz inquires no further than the sweat DNA argument
of the former prosecutor and on that she condemns the objectivity of
the filmmakers.
Q: You say in the final episode
of the series that you wish, on some level, that Steven Avery is guilty
because the thought of him being innocent is too painful to
contemplate. Now I understand that an attorney saying his client is
innocent—vouching—is considered poor form, but since you raised the
subject of his possible guilt, let’s go there: How likely it is that,
in your opinion, that Steven Avery committed this murder?
Strang: I don’t know.
It’s a maybe. There’s certainly evidence pointing toward guilt. There’s
evidence pointing away from guilt, towards innocence. I don’t know and
I’ve never pretended to know who killed this poor young woman. I do
know the values that our legal system proposes to hold, and one of
those is presuming someone is innocent and then not convicting him
unless that presumption of innocence is disproved beyond a reasonable
doubt. I don’t think that happened here.
When I say that I selfishly hope he’s guilty, I mean I remain wracked
by fair doubts. Objectively fair doubts that this verdict was wrong,
that the system in which I’m an officer got this case wrong. That would
be hard enough if a client went to jail for a month and was on
probation for two years. It’s really not a happy doubt to have to carry
when somebody goes to prison for life without parole.
Q: Reviewers seem to agree that
the evidence of wrongful conviction is stronger for Avery’s nephew,
Brendan Dassey, than for Avery himself. There we have a highly dubious
confession from a young man whose will has obviously been overcome, but
which a jury found credible. And there was active collusion between
Dassey’s defense team and the prosecution, which an appellate court
shrugged off. What does it say that the same signs of wrongful
conviction that have appalled people all over the world sailed right
past a jury and an appeals court?
Strang: I can’t speak to
what was going through the jurors' minds. I share the widespread
perception that the Dassey case casts in especially sharp relief the
unreliability of the evidence and trial outcome. Again, I don’t know
what went on in the jury room. I don’t know what life experiences and
biases these jurors brought in with them and I don’t know how the
discussions went.
I am a little more comfortable speaking about why it flew by the
courts. Everywhere in an appeal there is what behavioral psychologists
call a “confirmation bias” built into the appellate structure. And it’s
built in through the standards of review that appellate courts apply to
decisions of trial courts below them. Those standards of review usually
are pretty forgiving. Did the trial judge abuse his or her discretion?
Was the error clear or plain? Was it harmless error?
In most standards of review that apply to specific questions you might
raise on appeal, there is a bias toward confirming what’s gone before,
confirming the actions of the trial court. That’s a structural weakness
in appellate review and it’s not just Wisconsin, it’s U.S. courts
generally.
Beyond that, we have a very high volume intermediate court of appeals
in this state and the intermediate court of appeals is the only court
to which you have an appeal of right in Wisconsin. I don’t know the
specific caseload statistics, but the caseload is daunting for our
Wisconsin Court of Appeals, just a huge volume. Those cases are sort of
flying by, on the assembly line. Brendan Dassey’s is not the first
questionable conviction or even miscarriage of justice that has eluded
the inspector’s eye. I wish I could say it was.
Q: We’ve seen other Wisconsin
cases, like with Audrey Edmunds and Forest Shomburg, where convictions
that were ultimately overturned were initially rubber-stamped by the
appellate courts and the supreme court.
Strang: Right. And who
are the advocates dogged enough to go back to the courts and to stick
with these cases long after the courts have blessed the convictions and
moved on? They’re law students. They’re even journalism students,
undergraduate journalism students. They’re volunteer lawyers at big
firms working for free. Innocence projects. In other words, they’re
relative outsiders to the system who eventually achieve some sort of
delayed justice for the wrongfully convicted—after all the people who
have a duty and have taken an oath to do justice have moved on to
something else.
That’s a real indictment of our whole system, because what it means is
that at some basic level we’re not running a system of justice, we’re
running a system of chance, and one that depends on the happy accident
of some journalism students or some law students sticking with a case
long after the fact to undo the unhappy accidents that the
professionals in the system have caused.
That’s a real indictment of our whole system, because it means that
we’re not running a system of justice, we’re running a system of
chance, and one that depends on the happy accident of some journalism
students or some law students sticking with a case.
Q: Your excellent 2013 book,
“Worse Than the Devil,” recounts a case from nearly 100 years ago in
which a group of Italian anarchists were charged in connection with a
Milwaukee bombing that claimed the lives of nine policemen—the single
greatest loss of officers in the line of duty before 9/11. You present
compelling evidence of prosecutorial misconduct and wrongful conviction
based on official indifference to the truth. Are there parallels
between that case and the convictions—plural—of Steven Avery?
Strang: An inflamed
public sentiment. Loathing for the defendants. Massive pretrial
publicity. Outsider status for the accused. There are some parallels.
There are also a whole lot of details between that 1917 trial of
Italian immigrants in Milwaukee that do not look anything like the
Steven Avery or Brendan Dassey trial.
Q: In an email exchange that we
had last year over your book, you remarked: “The system is very, very
human and flawed for all the reasons that people are flawed.” But the
Avery case seems to be about something maybe worse than that—not just
the human capacity for error but allegations that evidence was planted
and an innocent man framed. Am I right to see the Avery case as being
maybe in a category of its own, in terms of the behavior of law
enforcement?
Strang: Well, obviously
some of the circumstances to the Avery case are unusual to the point of
being unique: Exonerated and then being charged with a new crime just
over two years after he’s released on a crime he didn’t commit. That’s
almost, I think, unprecedented in this country.
But beyond that, I don’t want to get too hyperbolic on the planting of
evidence. It still does come down to human weaknesses and, in some
ways, understandable—not acceptable, but understandable—human
weaknesses. When the police plant evidence, they’re almost always doing
that to strengthen a case against someone they truly believe is guilty.
That is, you can frame a guilty man, too.
Usually, when police plant evidence or lie on the stand or exaggerate,
when they take some action to augment their case untruthfully, they
almost always do that because they believe the person is guilty. It
really takes an abandoned act of evil to plant evidence or testify
falsely against someone you know or believe to be innocent. I think
that’s really very rare. I don’t think it’s all that rare that police
bend the truth, break the rules and even plant evidence against people
they assume or believe honestly to be guilty.
Q: What do you think of the
announced plan by former Calumet County prosecutor Ken Kratz to write a
book about the Avery case?
Strang: I think the world
needs more books, not fewer, in general. I understand why someone like
Mr. Kratz, who had a front-row seat to an especially compelling
courtroom drama, might have things he wants to say about it.
For myself, I would be uncomfortable ever writing a book about a case
in which I was a direct participant. I never will, actually. I’ve had
at least a half-dozen offers of likely large advances and profit to
write a book about the Avery case and I’m not doing it. I will not do
it. I am writing another book, but it’s going to be about a trial that
ended forty-two years before I was even born.
It’s not just the ethical minefield of trying to write a book and not
violate a lawyer-client privilege or disclose confidential information.
That’s certainly part of why I would not write a book about a case in
which I was a lawyer. There’s also something inevitably
self-aggrandizing about it. It's hard to be objective and to offer the
reader something more than your own opinions and prejudices. I have
thought a lot about this and I’m just not going to do it, ever.
Q: Are there larger lessons to
be drawn from the fact that Steven Avery’s conviction has become an
issue of interest to people all over the world? Does it say something
about the yearning for good outcomes, the will of people to see that
justice is done?
Strang: I think that’s
exactly what it says. There’s something innate in human beings that
recognizes and recoils from injustice. There’s something innate in
human beings that seeks justice. Now, we define justice in different
ways individually. But the seeking of it in general is a universal
quality.
There’s something innate in human beings that recognizes and recoils
from injustice.
I think the great value of the film is that it invites us to react as
citizens and as human beings and to look at broader questions in the
context of two small, compelling stories, of two individual people. But
those two small stories raise some very big issues about criminal
justice and the capacity of human institutions assembled together as a
system to mete out justice accurately.
So I am sad—I can’t do anything about it, but I’m sad—to see people who
think the film is calling them to act only as second string jurors or
police officers come lately. The arm-chair sleuthing misses the real
importance of the larger questions that the film raises. My suggestion
is that we ought to be taking this film, or any documentary about a
true crime, as citizens who are ultimately responsible for what happens
in our nation’s courts, not taking it as second-string jurors. Twelve
people already served as the jurors.
Q: What do we do with the
knowledge of injustice if not to be arm-chair sleuths?
Strang: Look forward.
Look at what’s happening in the courts in your county today. When you
get called as a juror, how about making a real effort to apply
presumption of innocence? How about making a real effort to hold the
state to the burden of proving something beyond a reasonable doubt? How
about being honest about what your biases are, and asking to be excused
from a jury if you can’t set them aside? How about participating in a
national debate about how police relate to the communities they serve?
Look around you rather than looking back to a distant county. Because
wherever you live, whether that’s in Iceland or Maryland, there are
courts fiddling with the liberty of your fellow citizens every day,
right down the street from you. That, I think, is where most of us
ought to be focusing our attention.
Bill Lueders is associate editor of The Progressive.
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