Jerry Buting Are Trying to Change the System
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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 United States 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 murders 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 torture, rape, and murder 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 crime – look what he did to Ms. Halbach! As the talking-head prosecutor on Nancy Grace screamed at the time, "The real crime is they let him out in the first place – thanks a lot, Wisconsin Innocence Project!"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 sexual assault 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, Brendan Dassey) bears responsibility for Ms.