Pity poor defense attorneys.
Not only do they tend to work long hours for less pay than many of their colleagues. Their job also can often be worse than thankless.
At the extreme, it can leave them buried under a heap of contempt piled up by an unsympathetic and often half-informed public. Every time they end up defending a client who is accused of some sort of heinous crime, there is no shortage of people who have already made up their minds about the suspect’s guilt.
Hence the common questions which, if not posed directly to defense lawyers, are at least almost always floating around in the public mind: “How could you possibly take his side? Don’t you know what he did? I mean, really, how do you live with yourself?”
The next time Tom, Dick and Harry feel tempted to ask these sorts of questions, they should hold off at least until they’ve had a chance to watch all 10 episodes of Netflix’s “Making a Murderer” documentary. They may not necessarily come away from the experience with a burning conviction that Steven Avery or even his nephew, Brendan Dassey, is innocent of the murder of Teresa Halbach.
But they will have gained a new appreciation for the role defense lawyers play in our justice system. Most of all, they will have seen how an adversarial system like ours falls apart if defense lawyers do not do everything they are legally and ethically allowed to on behalf of their clients — even clients whose guilt seems established beyond the shadow of a doubt before they’ve had a chance to set foot in a courtroom.
Arguably, the most striking moments in “Making a Murderer” were not those suggesting that Manitowoc County officials were out to frame Avery. They were instead those showing the contrast between the legal representation that Dassey received from a public defender and that which Avery got from the two private lawyers he was able to hire using money the state paid as compensation for his wrongful conviction.
The point here is not to besmirch public defenders, many of whom make the best of often deplorable pay and work conditions to provide an invaluable service. Nor is it to add to the much-deserved praise already showered on Avery’s lawyers, Dean Strang and Jerome Buting.
No, the point is to show how having a weak defense serves no one well — not clients, not lawyers and not the general public. The overriding feeling after watching “Making a Murderer” was not one of outrage, but rather of profound dissatisfaction.
Dissatisfaction because the show makes it apparent we will probably never know what role Dassey played, if any, in Halbach’s death. The defense lawyer’s job was to riddle the prosecution’s case with as many holes as he could. If, following such an assault, the jury still chose to convict, so be it.
At that point, if you still believed the suspect was innocent, you could blame the jurors. You could blame state jury instructions that call for searching “for the truth” rather than “doubt.” You could no doubt blame a million other things.
But at least you could say that someone did the most he could for Dassey within the confines of our justice system. As it was, with the defense’s failing to knock down even the most obviously flimsy evidence against Dassey, you had no way of knowing if there was anything that might have actually stood up to scrutiny. Maybe something beyond his questionable confession could have linked him to the crime. Probably not, but now we are unlikely to ever know.
With Avery, the situation is completely different. Whatever you might think of his guilt or innocence, you can at least feel satisfied that his defense lawyers did their utmost to put his case in the best possible light — even going so far as to concoct a conspiracy theory involving much of the Manitowoc County criminal-justice system.
Above all, the contrast between the ways the Avery and Dassey cases were handled shows the dangerous waters defense attorneys enter when they start listening a little too closely to their critics and give into nagging doubts about whether they really should be defending someone who is “obviously guilty.”
Any time defense lawyers start questioning their roles, they should think back to “Making a Murderer” for a quick reminder of just how fickle public opinion can be. For there’s no doubt that, of the people who are now immovably convinced that Dassey and Avery are innocent, many are the very same ones who would have been happy to see the two hanging from the gallows back in 2007.
Tom, Dick and Harry also should keep in mind that our justice system simply doesn’t work when the defense falls down on the job. That’s the real lesson of “Making a Murderer.”