After watching Making a Murderer, Netflix’ ten-part documentary series about Steven Avery’s 2007 trial for the murder of Teresa Halbach, many viewers were understandably perplexed by the jury’s guilty verdict. Avery had previously been exonerated from a wrongful conviction for a 1985 sexual assault, and due to a pending multi-million dollar lawsuit against the county sheriff for its role in his wrongful imprisonment, the sheriff appeared to have a motive to frame Avery for the Halbach murder. Armed with evidence that strongly suggested such a framing, along with the apparent weakness of the State’s circumstantial case, Avery’s excellent defense attorneys cast considerable doubt on whether Avery murdered Halbach. At the very least, there appeared to be reasonable doubt. Yet, twelve people decided that Avery was guilty, and under our law, that verdict means that Avery was the killer.
To me, that’s the most difficult part of the law to grasp. Life is shrouded by nuance and uncertainty; in a close case, it’s hard to know exactly what happened. But as a society, we have decided that justice must prevail, so we assign the task of judgment to a jury of twelve random people. We tell ourselves that as long as each juror believes beyond a reasonable doubt that a defendant committed a crime, wrongful convictions won’t happen.
But they do happen. I’m not arguing in this blog post that Steven Avery was wrongfully convicted of murder. I don’t think that’s appropriate when my knowledge of the case is limited to a ten-hour series created by people with an obvious agenda to entertain by casting doubt on the Avery conviction (click here to view an article about the inculpatory evidence that the producers of Making a Murderer left out of their documentary). Instead, I’m using this case as a backdrop for questioning the fundamental tenets of our justice system.
As a society, we are comfortable locking people away because we tell ourselves that they were convicted of a crime beyond a reasonable doubt. This premise is upended if reasonable doubt is merely theoretical, a grouping of words that functionally is no different than a jury awarding money damages to a plaintiff under the civil standard of “preponderance of the evidence” (i.e., more likely than not). Disturbingly, the prosecutor in the Avery case stated to the jurors in closing argument: “Reasonable doubt is for innocent people.” Despite this statement’s obvious impropriety, it’s instructive because that’s how most jurors treat the reasonable-doubt standard. It’s mere fantasy to assume that jurors objectively consider all of the evidence through the lens of reasonable doubt. Instead, they usually vote with their gut, meaning that we cannot be certain whether juries convict the correct person.
The most haunting aspect of the criminal justice system is that twelve jurors, who deliberate in secret with no accountability regarding whether they actually follow the trial judge’s instructions, create the ultimate “fact.” Before the case goes to the jury, a defendant is presumed innocent. However, when the jury unanimously votes for guilt, the defendant is now a criminal, and our history books record as “fact” that this defendant committed the alleged crime. I recall stirring video footage of the 1995 Chyann Bratcher murder trial in federal court in the Texas Panhandle. It was a close case, built on the strength of a co-defendant’s dubious testimony. After the jury returned its guilty verdict, Ms. Bratcher screamed out that she was innocent. The federal judge immediately silenced her, stating something to the effect of: “Ma’am, that jury of twelve just said you were guilty, and that means you did it. You are not innocent.” But what if a different jury had found her not guilty? Would that change the facts? Of course, it wouldn’t change what actually occurred in the past, but it would alter how we perceive and judge the past from our vantage point in the present.
How does this blind veneration of jury verdicts mesh with another fact – that humans are fallible? A by-product of our innate fallibility is that twelve people can, and sometimes do, get it wrong. Think about it. These juries usually consist of twelve very different people with a range of IQ’s, along with varying degrees of self-confidence in the serious task of judging another person’s fate. It’s easy for the more uncertain jurors to defer to the more vocal jurors who seem to grasp the intricacies of the case. Psychological group dynamics can create a demand to choose sides. Moreover, most jurors aren’t able to synthesize the mounds of information that are piled on them during a long trial, so they often make decisions on the basis of emotion rather than cognition. (Click here for an article teaching lawyers to use these jury traits to their advantage).
The Avery trial provides a great example of how a jury might reach the wrong decision. The case was highly publicized, with Avery being vilified in the media due to the State’s frequent press conferences during the investigation of the case. Many of these jurors might have had problems going home to their families and explaining that they let a murderer off the hook. Equally compelling is the fact that when the jurors took their initial straw poll at the opening of deliberations, seven voted for not-guilty, two were undecided, and three were staunchly convinced of Avery’s guilt. These three guilty jurors ultimately convinced the rest of the group to convict Avery of murder. Considering that there was a seemingly inconsistent verdict of “not guilty” on the charge of Mutilation of a Corpse, it’s not far-fetched to speculate that some type of compromise or deal occurred in the jury room (such trading of votes is a flagrant violation of the law).
In the last few years, there has been a movement in the United States to hold public servants accountable by increasing the transparency of their duties. Civil rights groups have called for all police officers to wear body cameras that are automatically activated upon interaction with a subject. But aren’t jurors practicing the ultimate public service when they pronounce judgment on another human being? Why, then, are their deliberations secret, with zero accountability if they refuse to follow the judge’s instructions to consider only the evidence in resolving whether a defendant committed a crime beyond a reasonable doubt? Cameras in the jury room could potentially resolve questions about whether jurors engaged in misconduct, and they might prevent the type of bullying that often occurs during deliberations. I want my jurors to be on their best behavior, and the only way to ensure that they are fairly considering the evidence is to increase the transparency of their decisional process.
The takeaway from Making a Murderer is not that one individual might have been wrongly convicted. Rather, the import is that the jury system is flawed. Such a flaw might be less worrisome if we had an appellate system that could catch these human errors. However, our appellate system is a joke when it comes to considering a claim that the jury messed up. This type of claim is called “evidentiary insufficiency,” but it’s an impossible claim to win because the appellate standard of review requires judges to resolve all factual disputes in favor of the jury’s verdict – in other words, they review the case with a bias against the defendant. Thus, in the case of Steven Avery, he doesn’t get the benefit of any judge neutrally evaluating the strength of the evidence.
This appellate process perpetuates the criminal justice system’s goal of finality over accuracy. An inherent tension exists between the goal of justice and the goal of avoiding wrongful convictions. If it’s too hard to convict a defendant, then criminals will never be brought to justice. On the other hand, if a conviction is too easy to obtain, then our prisons will be populated by numerous innocent people. Either choice should be intolerable. But by instituting a criminal justice system that sends millions of people to prison, we have made a choice, and inherent within that choice is a margin of error because the juries who administer this justice consist of fallible humans who are prone to mistakes. No matter how hard we strive to reduce this margin of error to as low a level as possible, human fallibility remains. Instead of responsibly acknowledging this fallibility through an appellate process that operates as a check-and-balance on the jury process, we indulge in an irresponsible fantasy of certitude in order to sleep at night: the jury of twelve must have gotten it right, thereby delivering justice to the victim and convicting the correct person.
Once the jury returns its verdict, the justice system doesn’t like the case to linger, as such would frustrate the goals of “justice” and finality for society. In service of these goals, the appellate system sets up such a gauntlet of procedural and substantive pitfalls that even meritorious claims often fail due to the alleged trial error being declared “harmless.” For example, if the appellate court found that the trial court erred in admitting certain evidence at a defendant’s trial, then the defendant doesn’t automatically obtain a new trial (such would frustrate the system’s ultimate goal of finality). Instead, the appellate judges reweigh the evidence, supposedly putting themselves in the shoes of jurors in order to determine whether a reasonable jury would have still found that person guilty beyond a reasonable doubt. Far too often, courts affirm convictions under this “harmless” error rule.
Turning back to the claim of insufficiency of the evidence (i.e., “How the heck did that jury convict that guy?”), appellate judges should ask whether a reasonable person could find that the prosecution proved its case beyond a reasonable doubt, just as they do when reweighing the evidence to decide whether an evidentiary error was “harmful” enough to merit a new trial. Instead, the prevailing standard directs the appellate judges to indulge all factual disputes in favor of the State before determining whether any reasonable person could have found that the State proved its case beyond a reasonable doubt.
This standard precluded Avery from receiving any kind of “fair” evaluation of his trial: if you resolve all factual disputes against him, then it logically follows that the State sufficiently proved its case. The primary controversy with respect to his trial is whether a reasonable juror could have found him guilty beyond a reasonable doubt. Besides the State’s overall case being fuzzy and circumstantial, there were substantial questions surrounding the acquisition (planting?) of key items connecting Avery to the murder. However, after resolving all the factual disputes in favor of the State, along with indulging all logical inferences in the prosecution’s favor, the evidence becomes sufficient. In a way, the appellate court’s standard of review creates this “sufficiency” as a result of the appellate mandate to review the evidence through a distorted lens.
Certain cogs in the criminal justice machine might respond that it’s inefficient and cumbersome for appellate judges to reweigh the evidence from a neutral perspective, as such a procedure invades the province of the jury. “We don’t want to sit as the 13th juror,” an appellate judge once told me in oral argument. This logic fails because, as explained above, judges already sit as the 13th juror when they reach to affirm convictions under the “harmless error” standard. Furthermore, given the tremendous importance of jury deliberations and their lack of transparency, a fair justice system has a duty to institute an appellate process that reweighs the evidence in order to determine whether the jury reached a just result. The situation might be different if jury deliberations were recorded, as a court could simply watch these recordings to determine whether any misconduct occurred. Until that happens, the only way to improve the accuracy of our criminal justice system is to audit the jury’s verdict through a revamped appellate process.