FEATURE CLE: A CONVERSATION ON JUSTICE

Sponsors: Sullivan, Mountjoy, Stainback & Miller PSC and Criminal Law Section CLE Credit: 1.0 Wednesday, June 21, 2017 1:15 p.m. - 2:15 p.m. Exhibit Hall 2 Owensboro Convention Center Owensboro, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237

Kentucky Bar Association TABLE OF CONTENTS

The Presenter ...... i

Viewpoint: Why Avery Matters ...... 1

Making a Murderer's Dean Strang and Jerry Buting Are Trying to Change the System ...... 7

Making a Murderer Lawyer: Wisconsin Pays Lowest Rate to Lawyers Who Defend Poor in Criminal Cases ...... 13

THE PRESENTER

Jerry F. Buting Buting Williams & Stilling, S.C. 400 North Executive Drive, Suite 205 Brookfield, Wisconsin 53005 (262) 923-8761 [email protected]

JERRY F. BUTING is a partner with Buting, Williams & Stilling, S.C. in Brookfield, Wisconsin, and practices primarily criminal law. He received his B.A., cum laude, from Indiana University and his J.D., cum laude, from University of North Carolina School of Law. Mr. Buting is admitted to practice before federal courts, the United States Court of Appeals for the Seventh Circuit and the United States Supreme Court. He is a member of the Wisconsin, District of Columbia and American Bar Associations, National Association of Criminal Defense Lawyers, and the Wisconsin Association of Criminal Defense Lawyers. Mr. Buting is the recipient of the Wisconsin Association of Criminal Defense Lawyers' 2001 David Niblack Award "For standing with the indigent in their times of need and thereby protecting the rights of us all." In 2016, he was awarded the John Jay College Fierce Advocate Award which is bestowed upon individuals who have shown "outstanding leadership in the pursuit of justice" for the advocacy on behalf of Steven Avery, chronicled in the series Making a Murderer.

i

ii VIEWPOINT: WHY AVERY MATTERS Michael C. Griesbach∗ Reprinted with permission from Wisconsin Lawyer, Vol. 84, No. 3, March 2011, an official publication of the State Bar of Wisconsin.

He was a hero of sorts, an improbable, yet compelling icon of innocence. A legendary survivor of an imperfect court system and the intended namesake of one of Wisconsin's most meaningful criminal justice reform bills in years, he was poised to reap millions in his wrongful-conviction lawsuit.

But then it exploded. On the very day Gov. Jim Doyle was scheduled to sign into law a bill that would bear his name, Steven Avery was arrested after apparently perpetrating one of the ghastliest in the history of Wisconsin, a state with a long and ignominious past of ghastly murders. The "innocent" man would stand trial again, this time for the , rape, and of Teresa Halbach, a freelance photographer from the heart of northeast Wisconsin.

Eighteen months later, the now rightly convicted Steven Avery was escorted through the gates at Dodge Correctional Institute in Waupun, twenty-one years after passing through them the first time, and less than four years after having walked out a free man. There were no smiles this time, no cameras, no klieg lights, and no reporters asking for a moment of his time. The doors clanged shut, and for the rest of his life – barring any uncanny revelations concerning Ms. Halbach's murder – the nation's most famous exoneree will unceremoniously be known as Wisconsin State Prison Inmate Number 00122987.

An Endangered Principle of Law

Ever since the grim discovery of Teresa Halbach's remains at the Avery Salvage Yard, the media has rightly focused on her murder, and her killer's prior wrongful conviction has all but been forgotten. The prevailing view was who cares that a depraved sociopath like Mr. Avery was wrongly convicted of an earlier – look what he did to Ms. Halbach! As the talking-head on Nancy Grace screamed at the time, "The real crime is they let him out in the first place – thanks a lot, Wisconsin !"1 But five years on, it's time to take a broader and more dispassionate view of the Avery saga, because when considered in its entirety, it raises difficult, even painful questions that go to the heart of our justice system, questions we would do well not to ignore.

"It's better to let a hundred guilty go free than to convict one who is innocent." Not for the faint of legal heart, but thus boldly proclaims one of our oldest and most cherished principles of law. But in a culture in which crime and its insidious ability to turn innocent

∗ Michael C. Griesbach, Marquette 1986, is an assistant district attorney in Manitowoc County. His book, Unreasonable Inferences: The True Story of a Wrongful Conviction and Its Astonishing Aftermath, is reviewed in the December 2010 Wisconsin Lawyer.

1 Nancy Grace, program aired Nov. 11, 2005, on CNN.

1 lives upside down run rampant, and when whole swaths of major cities are abandoned to stray-bullet lawlessness, can we still afford to hold fast to such an idyllic view?

Mr. Avery, who the National Innocence Project rushes to point out is the nation's only exoneree to be subsequently charged with a violent crime, is a case in point. In light of the evil that befell Ms. Halbach at his hands, and mindful of the tremendous risk he posed to public safety since he was a teenager, was Mr. Avery's wrongful conviction really so bad?

Fallout from a Wrongful Conviction

The search for an answer begins in 1985. Limited space here prohibits an exhaustive review, and to be sure not all agree, but after reviewing thousands of court documents, police reports, and letters and interviewing many of the parties involved, I've reached an unsettling conclusion about Steven Avery's wrongful conviction: it didn't happen by mistake. What caused it stretches well beyond ordinary negligence, and blaming poor police communication and tunnel vision, like the former Wisconsin Attorney General did in her independent review, doesn't square with the evidence.2 Instead, the wrongful conviction was a colossal injustice perpetrated as a result of the moral shortcomings of the sheriff and the district attorney at the time. Perhaps they failed to appreciate the wrongfulness of their conduct; after all, ridding the streets of dangerous miscreants like Mr. Avery is part of their jobs. But regardless of their intent, the devastating aftermath of their actions is a tragic example of the unintended consequences that can flow from a single wrong.

Few of us are inclined to pity Mr. Avery given what transpired after his release, but Mr. Avery wasn't the only one harmed by his wrongful conviction. The evidence strongly suggests that within days after arresting him, the sheriff and the district attorney not only knew he was innocent but also knew who the real assailant was – Gregory Allen, a sociopathic sex predator with a mile-long record. But the sheriff and the district attorney, believing in the rightness of their cause or at least satisfied what they were doing wasn't terribly wrong, never slowed down their drive to convict Mr. Avery, which left Mr. Allen free to roam the streets and repeat his crime. Eight years after committing the crime for which Mr. Avery was convicted, Mr. Allen broke into a Green Bay residence and raped the woman inside. Convictions for kidnapping, burglary, and second-degree followed and Mr. Allen was sent away for sixty years. Had he been behind bars where he belonged, there would've been one less victim of a violent crime.

Then there's Penny Beerntsen, the victim of Mr. Allen's original crime, the one for which Mr. Avery was wrongfully convicted. When DNA evidence proved innocent the man she believed for eighteen years was her assailant, and that it was an even more violent sex offender with a pending out-of-state warrant for murder who actually attacked and nearly killed her, Ms. Beerntsen was victimized all over again – this time by the justice system sworn to protect her. "I was devastated," she recently told a reporter. "I knew Steven Avery wasn't a boy scout, but nobody should serve time for a crime they didn't commit.

2 In a report released Dec. 17, 2003, Wisconsin Attorney General Peg Lautenschlager concluded that the Manitowoc County sheriff and district attorney committed no ethical or criminal violations in 1985 in their prosecution of Steven Avery. Any opinion expressed herein to the contrary is that of the author, and though shared by many, it is not shared by all.

2 ... I just wanted the earth to swallow me. I swear that day was harder than the day I was assaulted."3

And what of Mr. Avery, himself? To be sure, he (and to a lesser extent his sixteen-year- old nephew, ) bears responsibility for Ms. Halbach's murder – that much is clear. But nearly two decades of wrongful imprisonment undoubtedly took their toll on his humanity, exacerbating his sociopathic tendencies until he was completely unhinged. He considered prison his home, a place to which he was almost destined to return, and the prospect of returning there did nothing to deter him from committing murder.

His reminiscence with a Milwaukee Journal Sentinel reporter after his about how he used to sit on a picnic bench in the prison yard and count the jets that flew by is instructive: "Sometimes, I feel like it's easier in there," he said a few months after moving into an ice shanty with its jail-like confines, "some days, just put me back there, get it all over with."4

"It ain't nothing to put on a hundred miles," he told the same reporter, explaining how he would take a drive in his truck to escape his anger and frustration. "There's probably too much going on inside my head – brain can't put it all in," he said. "Sometimes it'll last all day, that's when I try to stay away from everybody, sometimes I cuss them out, sometimes I just go for a ride."

His mistrust of the legal system and the celebrity status he received after being released from prison didn't help either. Considering the law a disgrace to which he should not be bound, he flagrantly lied in his girlfriend's fifth-offense drunk driving trial just months before he killed Ms. Halbach.

All of which leads to a troubling question: Would Ms. Halbach still be alive if Mr. Avery hadn't been wrongly convicted of the earlier crime? Perhaps he would have left his parents' salvage yard business for greener pastures with his marriage still intact, or more likely, landed in prison for a crime he really did commit. But whatever his life's path, it's unlikely it would have led to Ms. Halbach's murder.

On firmer ground than this decidedly conjectural question concerning causation was the real prospect that Mr. Avery's prior wrongful conviction might have resulted in his acquittal for Ms. Halbach's murder. It's all but forgotten now, but when two highly skilled defense attorneys used the wrongful conviction to argue that the police had planted evidence and were trying to set him up again, the jury deliberated for three days before reaching its verdict, and one of Wisconsin's most notorious killers nearly went free.

Other Lessons from the Avery Case

Despite its gruesome facts, or perhaps because of them, the Avery saga's notoriety might trigger a closer examination of the problem of wrongful convictions in general and spark a more earnest search for solutions.

3 Kathy Millen, "Woman Still Dealing with Long-ago Assault," Naperville Sun, Jan. 19, 2011.

4 Tom Kertscher, Milwaukee Journal Sentinel, Dec. 30, 2003.

3 First, how frequently do wrongful convictions occur? The short answer is, not very. Concurring in a 2006 U.S. Supreme Court death penalty decision, Justice Antonin Scalia estimated the rate of wrongful convictions in felony cases to be less than three- hundredths of one percent – 0.027 percent to be exact. "One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly," Justice Scalia wrote. "That is a truism, not a revelation."5

Still, since 1989 more than 250 wrongly convicted persons have been exonerated by DNA testing in the United States; seventeen of them served time on before their convictions were overturned.6 The problem was so widespread in Illinois that in 2000, Gov. George Ryan, noting that thirteen death row inmates had been exonerated since the mid-1970s when was reinstated there, placed a moratorium on capital punishment in that state.

It's impossible to know how many other wrongful convictions remain undetected, because some criminal convictions are secured without physical evidence, leaving nothing behind to be tested for DNA. And even when physical evidence is obtained, it's frequently no longer available once the appeal period has lapsed. In fact, nearly one quarter of the cases closed by the Innocence Project since 2004 were closed because evidence was lost or missing.7

How many wrongful convictions are caused by official misconduct? No doubt, honest mistakes account for many of them, but the National Innocence Project estimates that police and prosecutorial misconduct were factors in thirty-seven of the first seventy-four obtained with the use of DNA evidence. The list of misconduct includes deliberate suggestiveness in identification procedures; mishandling, mistreatment, or destruction of evidence; withholding of evidence from the defense; coercion of false confessions; and the use of unreliable government informants.8

Inexcusably, whose misconduct contributed to wrongful convictions almost always go unpunished and often even advance in their careers,9 although recent developments suggest this trend may be changing.10

5 Kansas v. Marsh, 548 U.S. 163 (2006).

6 The National Innocence Project's website, www.innocenceproject.org. is an excellent source for additional statistics and information concerning wrongful convictions.

7 See www.innocentproject.org.

8 Id.

9 John R. Emshwiller & Evan Perez, "Prosecutors Seldom Punished for Misconduct," Wall Street Journal (Oct. 2, 2010).

10 In McGhee v. Pottawattamie County, , 547 F.3d 922 (8th Cir. 2008), the Eighth Circuit Court of Appeals upheld a wrongfully convicted man's right to sue a prosecutor who procured false testimony during a criminal investigation and then introduced the testimony against him at trial. The U.S. Supreme Court granted certiorari, but the case was dismissed after the parties reached a $12 million settlement. See also Radley Balko, "Is This America's Best Prosecutor," Reason Magazine (April 7, 2008), for an interview with newly elected Dallas County District Attorney Craig Watkins, who established a "wrongful conviction integrity unit" to combat the "win at all costs" philosophy of his predecessor.

4 Observers inside and outside the criminal justice system are acutely aware of the problem and are earnestly looking for solutions. In response to a recent spate of high- profile exonerations, including Steven Avery's, the American Bar Association amended its Model Rules of Professional Conduct to include a section entitled, "Special Responsibilities of a Prosecutor." Reminding prosecutors that they have "the responsibility of a minister of justice, and not simply that of an advocate," the model rule provides, among other things, that if a prosecutor knows of clear and convincing evidence that a convicted person is innocent, he or she must promptly seek to remedy the conviction by disclosing the evidence to the defendant and to the court.11 This sounds like common sense, but if the Avery case teaches us anything, it isn't necessarily so.

Also, in the last few years, Wisconsin, New Jersey, North Carolina, and several large- city police departments throughout the nation have implemented new procedures that have proven successful in improving the accuracy of eyewitness identifications. In Wisconsin, the Avery Task Force inspired legislation that requires every police agency in the state to adopt guidelines on identification procedures that address issues such as proper instructions to witnesses, double-blind testing, and sequential presentation of suspects in line-ups or photographs in arrays. The legislation also clarifies which laboratories in the state are responsible for post-conviction DNA testing and requires that testing that might prove innocence be given priority.12

But while procedural reforms like these, and even broader measures such as changing the way we select prosecutors may help, they still don't get to the root of the problem. Larger issues are at stake. Whether prosecutors are elected, as they are in most states, or appointed, as in the federal system, the office of prosecuting attorney is fraught with political pressure. The media and the politically driven "tough on crime" attitude of some citizens produce ever-stricter crime legislation, which makes it difficult for prosecutors to make decisions based only on reasoned judgment and common sense. The same holds true for judges, who face similar pressures in handing down appropriate sentences.

So what's the solution?

Finding a Solution

Addressing a roomful of federal prosecutors in , D.C. in 1940, U.S. Attorney General Robert H. Jackson began by defining the scope of the problem:

"It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated, and if he is that kind of person, he can have this done to the tune of public sentiments and veiled or unveiled intimations. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."

11 ABA Model Rule 3.8 (2008), adopted by Wisconsin SCR 20:3.8.

12 Wis. Stat. §175.50 (Eyewitness Identification Procedures).

5 And he closed by suggesting at least part of the solution:

"A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility."13

None of us who work in the justice system is perfect, but as a court instruction reminds jurors before they begin deliberations, they have been "called upon to act in the most important affairs of life." The same is true for prosecutors, so we must try our hardest to do what's right: if we don't, an injustice can fester for years.

13 Excerpted from U.S. Attorney General Robert H. Jackson's address to federal prosecutors on April 1, 1940, at the Second Annual Conference of United States Attorneys in Washington, D.C.

6 MAKING A MURDERER'S DEAN STRANG AND JERRY BUTING ARE TRYING TO CHANGE THE SYSTEM Laura M. Browning Reprinted with permission from The A.V. Club. Originally posted May 10, 2016. http://www.avclub.com/article/making-murderers-dean-strang-and-jerry-buting-are--236338

In 2003, after eighteen years in prison, Steven Avery was freed and exonerated of a 1985 rape conviction. Two-and-a-half years later – in the midst of a $36 million lawsuit that Avery had brought against the Manitowoc County Sheriff's Department – he was arrested for the murder of Teresa Halbach, as was his nephew Brendan Dassey. When Netflix dropped Making A Murderer, the ten-part documentary series about the two cases, in December 2015, it created some unlikely villains and heroes, and it's not always clear where that line falls. Maybe Avery was guilty, or maybe he was set up by a vengeful sheriff's department. Maybe Dassey's interrogation by police was manipulative and unfair, but maybe jurors also acted beyond the bounds of courtroom evidence to convict him. The speculation on both cases, which runs rampant everywhere from Reddit to water-cooler conversations, has given both cases an unusual amount of attention. Dean Strang and Jerry Buting, Avery's attorneys during his trial for Halbach's murder, spoke to The A.V. Club about whether this case has rattled their faith in the U.S justice system and how they're trying to use their newfound fame – more than a decade after the initial trial – to create lasting change. The two lawyers are currently on A Conversation on Justice tour across the U.S.

The A.V. Club: Can you give us a brief update on where the Steven Avery and Brendan Dassey appeals stand right now?

Dean Strang: [Brendan Dassey] is waiting in federal district court in Milwaukee on a federal habeas petition, so it's at the trial level in federal court. Steven Avery is done with his appeal and his opportunity in federal court ends, so the current effort for him by Kathleen Zellner and others working with her would be to gather potential newly discovered evidence to support a motion for a new trial, and that would go back to the original trial court.

AVC: One of the jurors, Richard Mahler [the juror from Making A Murderer who was excused], came forward in January to say that there was vote trading going on in the jury room, and that some jurors had voted to convict because they were afraid for their own safety. Does that kind of thing amount to juror misconduct? Or is new evidence the only hope for Steven Avery?

Jerry Buting: There are limited opportunities to challenge a jury verdict based on jury misconduct. I'm not going to comment legally on whether the specific facts might be enough in this case. That's something that I'm sure his new attorney will be exploring. There's also an interview of other jurors that was done by In Touch Weekly magazine in which one of the jurors basically admitted that the reason she convicted was because of information that never even came into the trial. The claim – supposedly – that Brendan Dassey[sic] confession describing this bloody murder and torture – none of which came into the Avery trial. So that may be another angle that's explored. Now whether any of those are sufficient to get a new trial on those grounds alone, we'll have to wait and see.

7 AVC: How would a jury get access to that information?

JB: That information was broadcast on their nightly news every day for ten months, based on the press conference that the special prosecutor had back in March, right when Brendan Dassey was arrested, and he gave this graphic description that was totally unsupported by the evidence.

AVC: Okay, so this is before the jury selection.

DS: The prosecutor gave a press conference ten months before the Avery trial began and laid out all of these details that the jurors later was[sic] describing. None of that was actually evidence at the trial.

AVC: Dean, you've talked a little bit in other interviews about how you have a tempered faith in the justice system, not a blind faith. Given the outcomes of Making A Murderer – and things like the first season of the Serial podcast – do you think that trial by a jury of your peers is a failure?

DS: You can't say that as a blanket matter. What you can say is that juries get it right in some cases and they get it wrong in other cases. Trial by jury is just like every other human endeavor: Sometimes it works and sometimes it doesn't, and it depends enormously on the happenstance of who you have on the jury and how committed they are to doing their duty faithfully.

AVC: Have you listened to the Serial podcast?

JB: I started listening to it recently and it's very good, but I haven't finished it.

AVC: In both Serial and Making A Murderer, the truth can really seem secondary. Somebody has in mind that it has to be these circumstances or it has to be this person, and you start gathering evidence geared toward that, and even as evidence starts to pile up – nobody's really motivated to change course. Have you seen instances where prosecutors are motivated to change course? I know you can't comment specifically on this case –

JB: By "motivated to change course," you mean that it's in the middle of a trial, or even on appeal, when some new evidence comes forward – and are the willing to back away from that?

AVC: Even before that. Even preparing their case – it just seems that prosecutors follow a single path, which may or may not be the same as following the truth.

JB: Well, that's probably true. By the time that a prosecutor decides to issue a charge, they're kind of in that theory of prosecution. And then they can put on blinders to anything that tends to point away from that theory. A good prosecutor, though, should be open to hearing the defense side. Very often what happens is that the police issue reports and give them to the prosecutor, the prosecutor decides whether or not to charge, based upon that kind of one-sided investigation, and only later does the defense get to present the other side and perhaps other witnesses that the police overlooked. A good prosecutor who's seeking justice should be willing to sit down and consider that, and if necessary, change course. But not all of them are willing to do that.

8 DS: Well, and it's hard to do. It's hard to do for human beings. We aim our beliefs to the early information we get about something – behavioral psychologists have a word for that, anchoring bias – and also, the further we get into pursuing a given belief, the more we seek information to confirm the correctness of that belief. And that's just human beings generally. Think about how many people in this world have gotten engaged to somebody in a flood of emotion and joy, and by the time they're actually at the church getting married, they figured out they're marrying the wrong person, or at least suspect that they're marrying the wrong person, and not many of them walk away from the altar. This is just human nature: that we invest heavily in our conclusions that often are really rooted in some very fragmentary initial information that causes us to draw pretty fixed conclusions. And those are very hard to abandon later.

JB: Which can be very problematic if the prospective jurors come into the trial with those same kinds of biases, based on incomplete – or sometimes downright false – pre- trial information that they may have acquired. So it's not enough for a judge to robotically get the jurors to say, "Well yeah, I can set aside those opinions if you tell me I need to follow the instructions." You need to probe those jurors carefully and really get them to honestly take another look at their own feelings and say, "Would you really want yourself as a juror if your son or husband was accused of something like this?" It's a challenge, because it's something that judges and prosecutors and defense attorneys need to be aware of so that they can try to give the defendant the true presumption of innocence, and hold the state to a burden of proof beyond a reasonable doubt.

AVC: Do you think that the only way of drawing attention to a case like this, that reveals these cracks in the criminal justice system, is to make it a kind of entertainment?

DS: To draw broad public attention to anything, you have to find some time in people's lives where they're not preoccupied with getting their kids off to school or a deadline at work or a list of chores. So in that sense, you can only reach people on issues that don't directly intersect with their daily lives when they have some leisure. So if you define entertainment very, very broadly – to talking to people when they are at leisure or not otherwise occupied with the imperatives of their own lives – yes. That's why presidential debates – although most of us don't think of those as entertainment; many of us think of them as torture – that's why they're at 7 o'clock at night, not at 2 o'clock in the afternoon, right?

JB: Right.

DS: It's when people are available to engage with that. That doesn't – there's a narrower meaning of entertainment that's different and that I don't think two lawyers having a conversation about broad issues of criminal justice would fall into that narrower category of entertainment. We aren't a stand-up comedy routine, we're not a rock band, we're not a meal out at a nice restaurant. Not only do you have to have some available time, but you have to have some basic interest in broader serious issues of criminal justice to listen to Jerry Buting and Dean Strang talk about that for an hour and a half.

AVC: You watch something like Making A Murderer and get so worked up about the specifics, but as soon as you Google "exonerations," you realize this is a much, much bigger issue. Do you think that the Avery and Dassey cases are emblematic of these larger problems with the criminal justice system?

9 DS: "Emblematic" was exactly the word I was going to use. Steven Avery's case, of course, has a very, very unusual set of historical circumstances to it, but Brendan Dassey's case is utterly common. The experience of a developmentally delayed young person, mismatched against the police and very manipulative police interviews – that gets repeated in hundreds, if not thousands, of cities all across America every day. So "emblematic" is exactly what it is, and I think smart viewers of this film may be interested in the emblem, but also understand that as a signal of a whole array of broader issues that also ought to interest them.

AVC: What do you hope to accomplish on this tour, and what do you think you can actually accomplish?

JB: To start the conversation – it's not going to begin and end in ninety minutes. But to the extent that people are willing and interested in looking at those broader issues and then go back to their own communities and talk to their families, and talk to their friends, and then they do likewise, and then you spread the word and when people understand that this is not the kind of system they want or are willing to accept, even. Then you have a chance to make some real change. And that's what we're hoping to do, is to start a grassroots groundswell type of a movement that some people have already shown an interest in doing – you know, there's 500,000 people signing a petition to Obama asking for a pardon. That wasn't the right mechanism to achieve what they hoped. But it shows that people want to do something. We have a lot of other ideas, so we're hopeful that something more long-term can come out of the miscarriage of justice that we experienced in this case.

DS: Let me draw an analogy to two guys who are more familiar, much more popular than we are, but in many ways, just as unlikely: Neil DeGrasse Tyson and Bill Nye. A physicist and another scientist, and both are drawing huge audiences all over the country and probably the world, and when they go out and talk – I suspect if you ask either one of them, they don't expect that they will have left a theater having measurably increased scientific literacy. They certainly won't expect to have left a theater having solved climate change, for example. But – but! – the fact that they're out talking and that people are willing to listen to scientists in their leisure time as a form of – in the broadest sense of the word – entertainment, it's very encouraging. Over time, the prospect that scientific literacy will rise and that we will become better citizens and that ultimately we may have an impact on some of the broadest existential issues facing the globe. And again, if you ask Tyson or Nye, they're not expecting to accomplish that in one evening or in one year or in one set of speaking engagements.

Our goals are more limited. In many ways the problems that we're addressing also are more limited. We're not as popular. But I think there is a remarkable and really encouraging appetite for spoken word right now that over time can have an incremental effect on making the world better.

JB: And on how people view their criminal justice system, in our case.

AVC: So what would real change look like?

DS: Real change would look like the police abandoning the 1950s flawed psychology that underlies the universal interrogation techniques used by American police departments. Real change would look like children being pulled into the criminal justice

10 system having a parent or a lawyer if they're going to be interviewed by the police. Real change would look like lawyers and judges making an honest effort to preserve the presumption of innocence after somebody's charged, rather than to undermine it with pre-trial comments. Real change would look like, in the end, American citizens and voters who are more engaged in judicial elections and district attorney and sheriff elections and more thoughtful and smarter voters than simply falling for crude, tough-on- crime appeals by judicial law enforcement and prosecution candidates. That would be a lot of really good change.

AVC: This is the question that everybody really wants to know: Is 's voice really as awful in person as it is in the show?

JB: [Laughs.] You heard what you heard. We heard it for six weeks.

11

12 MAKING A MURDERER LAWYER: WISCONSIN PAYS LOWEST RATE TO LAWYERS WHO DEFEND POOR IN CRIMINAL CASES Tom Kertscher Reprinted from http://www.politifact.com/wisconsin/statements/2016/apr/20/jerome- buting/making-murderer-lawyer-wisconsin-pays-lowest-rate-/ Posted Wednesday, April 20th, 2016

The Netflix series Making A Murderer made rock stars of Wisconsin criminal defense attorneys Dean Strang and Jerome Buting, even though Steven Avery, their client and the central figure of the series, was found guilty of murder.

The two are doing a speaking tour in North America, to be followed by one in Australia. Strang is getting a TV series. Buting is in demand, too – and taking a whack at criminal justice in Wisconsin while he’s at it.

While in Belfast to address a European bar association conference, Buting told the Irish Legal News in an April 11, 2016 article that Wisconsin is last in America when it comes to paying lawyers who represent poor defendants in criminal cases.

"We have a staffed indigent defense program statewide, but only about 60 percent of cases are handled by those salaried lawyers," Buting said, referring to Wisconsin public defenders, who are state employees.

"The remainder (of the cases) get appointed out to private attorneys on an hourly basis. The hourly basis is $40 an hour. It is now the lowest in the country, worse than the Deep South of America, which has historically been the least generous when it comes to this sort of thing."

He added: "It’s easy for politicians to demagogue and say ‘we’re going to cut this and cut that,' but what’s happened in Wisconsin should be a warning to Northern Ireland and other countries. I do think that not only lawyers but the public has to stand up to these attempts to try to cut the quality of defense for people accused of ."

Leaving aside the question of whether pay affects quality, we found that Buting’s claim is mostly on target.

The only caveat is that a complete comparison isn’t possible, given that twenty states don’t use set hourly rates like Wisconsin does.

How the System Works

In Wisconsin, the first line of defense for people who are charged with a crime and can’t afford an attorney is a public defender.

But because of heavy caseloads, and for other reasons, public defender offices throughout the state assign some of their cases to private attorneys who have agreed to take such appointments.

13 As Buting said, Wisconsin pays those private attorneys $40 an hour. That amount has not changed since 1995.

The $40 is for "for time spent related to a case," in court or out of court, excluding travel. For travel time, the rate is $25 per hour, if the travel meets certain distance requirements.

Other States

To back his claim about where Wisconsin ranks, Buting cited a 2013 report from the National Association of Criminal Defense Lawyers.

The report said thirty states, including Wisconsin, Iowa and Indiana, had established a statewide pay rate for private attorneys who handle criminal cases, with the average being about $65 per hour.

Among those thirty states, the report said, "Wisconsin has the lowest rate in the nation at $40 an hour."

So, Buting is essentially on track.

The report also noted, however, that twenty states don’t set hourly rates. In those states, the pay for the private attorneys is generally either set by a judge on a case-by-case basis, or through a contract between the state and the attorney. But even within some states, there are variations. In Illinois, Cook County (which includes Chicago) pays $40 per hour for in-court and $30 for out-of-court work, while all other counties establish their own rates.

In other words, the report doesn’t provide an hourly breakdown for all fifty states.

Randy Kraft, spokesman for the State Public Defender in Wisconsin, told us his office in fall 2015 essentially updated the National Association of Criminal Defense Lawyers report by checking the laws in all fifty states and found no other state hourly rate had slipped below Wisconsin’s.

Our Rating

Buting says Wisconsin pays criminal defense lawyers who represent the indigent $40 per hour, "the lowest in the country."

According to the latest available data, Wisconsin’s rate was lowest among the thirty states that set hourly rates. But it’s worth noting that the effective hourly rates for the other states couldn’t be determined, because they use different systems.

For a statement that is accurate but needs additional information, our rating is Mostly True.

14