Making a Canadian Murderer

Last night Dean Strang & Jerry Buting, two American attorneys, stopped by in Toronto to give a talk. The lawyers are known from the Netflix original crime documentary, Making A Murderer, which might be Netflix’s most successful show to date.

Strang and Buting were defence lawyers for Steven Avery, a man from Manitowoc County, WI who was exonerated through DNA testing after serving 18 years of a 32 year sentence for rape and attempted murder. The controversy over the documentary though deals with Avery’s second charge, over the murder of another woman after his release. The purpose of the show appears to demonstrate that this might be Mr. Avery’s second wrongful conviction.

The documentary highlights some of the numerous inconsistencies with the investigation and trial, the shortcomings in the evidence, and most controversially, the accusation of police corruption and tampering. Transcripts and documents from the trial are available here.

If nothing else, the documentary has been successful in highlighting the importance of lawyers within the legal system, and the challenges that a criminally accused faces when dealing with the full brunt of the resources of the state. Lay viewers develop a far better appreciation of the role of criminal defence lawyers. This show has done more to assist the reputation of lawyers than any public relations, communications, or educational campaign ever created by lawyers themselves.

Strang and Buting focused much of their talk contrasting the American and Canadian legal systems as it relates to criminal justice. For example, the judicial independence fostered by appointments, rather than elections, received some praise.

But most of the attendees were interested in facts or distinctions related to the Avery case. In other words, the public wanted to know whether a case like Steven Avery could happen in Canada. Although limited by professional responsibilities related to confidentiality, Strang and Buting could not make much direct reference to the case but still highlighted important distinctions between the two jurisdictions.

Strang and Buting drew attention to one of the most significant drawbacks of the American justice system – the pretrial publicity and cameras in the courtroom.

Neil Vidmar of Duke University School of Law conducted a comparative analysis in 1996 of pretrial prejudice between Canada and America. One of the major differences that he found was the controls that the judiciary can place on mass media to prevent pretrial prejudice. He looks at ss. 486 and 537 of the Criminal Code in light of the competing Charter values under ss. 11(d) and 2(b). The defendant’s right to ban the content of a proceeding is frequently invoked where a case is likely to draw public attention.

The Canadian Judicial Council has an excellent primer on when media bans are used in Canada, and why, in The Canadian Justice System and the Media.

The other factors that Vidmar cites are the exclusion of cameras in the courtroom, and s. 649 of the Code prohibiting jurors for disclosing deliberations.

Canadians periodically have a debate  about whether we should have cameras in our courtrooms, aside from proceedings in the Supreme Court. In the Avery case, when coupled with extensive pre-trial media coverage, the jury pool was possibly irreparably tainted. Out of the jury pool that was retained, 129 indicated that based on media coverage alone they believed Steven Avery was guilty.

During the trial, the prosecution conducted daily media interviews. At least some of this content made its way to the jury.

One of the jurors in the Avery case was found guilty of misconduct after talking publicly about the case at a supper club. Another, who was not recused, was told by her husband all of the new coverage of the trial, including proceedings when the jurors were asked to leave the room.

The lack of restrictions on jurors after the trial also means that several jurors have come forward to recount how deliberations proceeded, which gives rise to interesting questions. The role of a juror who was the father of a Manitowoc County officer itself seems significant.

Strang and Buting also made more generalized comments on how law enforcement conduct interviews. The widespread use of the Reid technique, in both Canada and the U.S., is likely the cause of an unknown number of false confessions.

The Reid technique was deeply criticized by Provincial Court Justice M.C. Dinkel in R. v. Chapple, where an inculpatory statement was obtained from an accused, despite at least 24 attempts by the accused to attempt to remain silent.

The judge concluded in this case, due to a variety of factors, that this “was guilt a presumptive interrogation disguised as truth‑seeking interview” which overrode any voluntariness of the statement, as required in R. v. Oickle,

121 Although there is no law prohibiting the use of The Reid Technique, I find that it has the ability to extinguish the individual’s sacred legal rights to be presumed innocent until proven guilty and to remain silent in the face of police questioning. Innocence is not an option with the Reid Technique. Those who defend the Reid Technique may suggest that the problem lies with the interrogators who misuse the technique and not the technique itself. They may also say that the technique is intended to be used only in circumstances where the police are sure of an accused’s guilt. These factors are of little solace to me and of no assistance to those innocent individuals who have given false confessions over the years at the hands of Reid Technique interrogators.
[emphasis added]

This danger is even more pronounced with children, as with Steven Avery’s nephew, Brendan Dassey, or where there are learning disabilities and lower intelligence.

In 2010, Brent Snook et al published a paper, Reforming Investigative Interviewing in Canada, calling for significant reform in interviewing techniques. They propose a PEACE process to maximize the quality and quantity of information obtained by interviewees:

1. Preparation and planning: Interviewers are encouraged to have intimate knowledge of case files before commencing an interview and to establish a schedule with a set of objectives and aims to be met.

2. Engage and explain: The interviewer explains the interview’s purpose, introduces those present in the room, where applicable administers the police caution and Charter rights, establishes rapport with the interviewee and engages them in conversation.

3. Account: Involves obtaining an account of the event by using the cognitive interview (typically used in interviewing agreeable interviewees) and conversation management (for less agreeable interviewees)….

4. Closure: Ending the interview by summarizing the main points that emerged, giving the suspect an opportunity to correct any part of the summary or add information, and explaining what will happen in the future.

5. Evaluate: Involves evaluating the information obtained from the interview and how it affects the progress of the investigation and the interviewer’s performance.

Wrongful convictions do happen in Canada. At least when they do we don’t have to deal with the unpleasant situation of a wrongful execution. Fortunately for Steven Avery, he does not live in one of the 31 states that still have capital punishment.

The Steven Avery case is again under appeal, with a reconsideration motion filed in January of this year. A second series of the show is currently being planned.

Dean Strang and Jerry Buting, defense attorneys for Steven Avery in the Netflix documentary series Making A Murderer