Wisconsin prosecutor Michael Griesbach recently wrote, “To be sure, mistakes were made in the Avery case.”
Yet, he claims that “an imperfect investigation doesn’t add up to a wrongful conviction — or even the right to a new trial — not when overwhelming evidence proves the defendant’s guilt beyond a shadow of a doubt.” Griesbach was actually launching a rather odd personal attack on Avery’s current lawyer, Kathleen Zellner. But she doesn’t need me to defend her, so I’ll discuss Griesbach’s law-related claims instead.
First, the quality of the police investigation is critical to determining whether a defendant is innocent or is entitled to a new trial. Despite the prosecutorial mantra that the police are not on trial and should be immune from criticism, the U.S. Supreme Court has held otherwise. Defense lawyers are permitted “to attack not only the probative value of crucial physical evidence and the circumstances in which it was found, but the thoroughness and even the good faith of the investigation.” Such an attack often reveals “a remarkably uncritical attitude on the part of the police,” as they gather evidence to support their predetermined conclusion of guilt.
Second, the jury did not find Avery guilty “beyond a shadow of a doubt.” The jury did not come back quickly, or even unanimously. Instead, jurors deliberated for days and then irrationally split the verdict, finding Avery guilty of homicide but not of mutilating the corpse. And even though prosecutors (sometimes) love to claim that the word verdict means “to speak the truth,” this jury’s verdict was not the truth; in fact, it spoke the one outcome that could not have been true. Even Ken Kratz knows that Avery either committed both crimes or committed neither crime.
Third, the burden of proof is not “beyond a shadow of a doubt.” And in Wisconsin, it’s not even “beyond a reasonable doubt.” Why? Because our state’s jury instruction on the burden of proof is flawed in four very serious ways. One such way is its closing mandate “not to search for doubt” but “to search for the truth.” Wisconsin prosecutors love this language because, as other courts have held, it lowers the burden of proof to a mere “preponderance of evidence” standard.
Those courts are right. In a recent empirical study, Lawrence T. White and I demonstrated that mock jurors who received Wisconsin’s burden-lowering instruction convicted at the same rate as those who received no reasonable-doubt instruction whatsoever. And in a follow-up study, mock jurors who received the don’t-search-for-doubt mandate were twice as likely to mistakenly believe conviction was proper even when there was reasonable doubt. Meanwhile, Wisconsin prosecutors vigorously oppose efforts to reform this defective jury instruction—so much for their role as “minister of justice” and their duty “to see that the defendant is accorded procedural justice.”
Fourth and finally, prosecutors forget that Avery was never allowed to put up a true defense. The state successfully prevented Avery’s defense team from naming a specific, third-party suspect at trial. This is especially troublesome in Wisconsin, where the jury instruction imposes a burden on defendants to produce a “reasonable hypothesis consistent with the defendant’s innocence.” However, it fails to inform the jury that our truth-suppressing trial rules prevent the defendant from doing so.
Unlike prosecutors, I don’t pretend to “know” what really happened in the Avery case. But I do know this: The legal deck was stacked before the trial even started. Wisconsin prosecutors should therefore quietly accept the gift the jury gave them, and hope the federal courts don’t reverse yet another one of their convictions.
Michael D. Cicchini is a Wisconsin criminal defense lawyer and author. To learn more about how the deck was stacked against Steven Avery and Brendan Dassey, read his most recent book, Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer (Prometheus Books). Michael Griesbach, Column: Kathleen Zellner out for fortune, fame in Steven Avery case, Post-Crescent (June 23, 2017).  Kyles v. Whitley, 514 U.S. 419, 445 (1995).  Wis. Crim. Jury Instruction 140.  See, e.g., United States v. Gonzalez-Balderas, 11 F.3d 1218, 1223 (5th Cir. 1994).  Michael D. Cicchini & Lawrence T. White, Truth or Doubt? An Empirical Test of Criminal Jury Instructions, 50 U. Richmond L. Rev. 1139, 1143 (2016).  Michael D. Cicchini & Lawrence T. White, Testing the Impact of Criminal Jury Instructions on Verdicts: A Conceptual Replication, 117 Columbia L. Rev. Online 22, 30-31 (2017).  Wisconsin SCR 20:3.8, ABA Cmt. 1.  Wis. Crim. Jury Instruction 140.  See Michael D. Cicchini, An Alternative to the Wrong-Person Defense, 24 Geo. Mason U. Civil Rights L.J. 1 (2013).