justice

In Review: Making a Murderer

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Unless you’ve been living under a rock the last 8 months or so, you’ve at least heard of the Netflix documentary series Making a Murderer. If you haven’t gotten on the bandwagon, or even if you have, this review has a look at the series, its message and whether it is a good thing for a legal mind to feed from.

A very long story short, Making a Murderer surrounds the life of Steven Avery of Manitowac County in the US. In 1985, Avery was convicted of the rape of a woman, which 18 years later DNA evidence proved he did not commit. It is seen that the County Police fixated on Avery as the suspect at the detriment of good police work, as Avery was an outcast of the community with some criminal history. Astonishingly, this horrible injustice isn’t even the focal point of the overall series.

After being released, Steven Avery returned to his family property on the outskirts of Manitowac, which primarily caters as a scrap metal salvage yard. Having the conduct of the police department 18 years ago found to be sound with regard to criminal law, Avery files a $36 Million civil suit against the Manitowac County Police Department. Wouldn’t you know it, as the civil case begins and a photographer for an Auto Trader magazine, Theresa Halbach, goes missing, the police turn up on Steven Avery’s door.

However I shouldn’t be so facetious, Halbach had visited Avery’s property to take photos of a car he wanted to sell, so he had in fact seen her the day of the murder. That’s the only connect though, now I know what all of you defence attorneys are thinking, but wait, it gets worse.

What follows in the 10 episode series are step after step poor police proceedings, incorrect judicial ruling and generally mind boggling injustice and illegality. Whether or not Steven Avery did murder Theresa Halbach is anyone’s guess, but the procedure of the criminal investigation and court case was so terrible it made me want to throw something at the TV.

Let’s take, as the best example I’d argue, Brendan Dassey. Who’s that? Oh, that’s Steven’s nephew who is 16 years old and clearly not the brightest crayon in the packet. Both before, and more remarkable after, getting legal representation, Brendan is interviewed numerous times without a parent or lawyer present. Yep, that’s illegal. Therefore any evidence he gave would be inadmissible in court right? Say a confession that the police have on tape where it’s clear that Brendan is being fed the correct answers. Oh wait, that was allowed in. A confession where Brendan not only implicates his uncle in the murder, but himself too! What’s made worse is his lawyer allowed him to be interviewed without a parent or legal representation. Was Brendan allowed to get a new lawyer? No, not initially. At least eventually that was rectified.

How about this one. The ‘crime scene’ of Avery’s residence is searched more than ten times. Though a glimmer of hope is that it was supposed to be dealt with by a police department other than Manitowac County due to the law suit, many times after the initial search, Manitowac officers decided to search themselves and simply walked onto the property without clearance and just looked around. Suspiciously enough, on the seventh visit, one of the Sheriff’s named in Avery’s civil suit happens to find a piece of crucial evidence in Avery’s bedroom, the key to Halbach’s car with his DNA on it. Right there in the open. Gosh! What are the odds? Why had no one seen this? Or, you know, fell over it, it was so prominently placed.

While Making a Murderer is a very interesting and thought provoking series, it is for all the negative reasons. All the stereotypes that the Australian legal profession has regarding the American system are completely founded according to this documentary, which I don’t believe is actually true. The viewer, particularly a legal minded one, sits watching with their mouth gapped open, yelling at the TV like a sports fan at some of the judicial rulings that could not possibly have been ruled with that interpretation, and yet they were.

The system works against Steven Avery almost seamlessly and SPOILER ALERT, both Steven Avery and Brendan Dassey lose their case. Despite appeals on both parts, both men are still in prison and there is no release date any time soon.

All in all, I honestly don’t know if I would recommend Making a Murderer or not. On one hand, yes, because it is compelling, well documented and the storyline very much fits the saying “reality is stranger than fiction”. If someone wrote a fictional crime novel of the same story people who scoff and say “how unrealistic”. But on the other hand, as a legal mind you will be so incredibly angry at the unfathomable legal entities in this, from enforcement to judicial, that you can barely put it into words. I say, if you’ve got a 10 hour gap in your life, give it a go for sure, at the very least you’ll finally know what everyone is talking about at the water cooler!

Michael McGarvie

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Image - Michael McGarvie

What are your passions outside of the law?
Gardening, plant propagation, landscape design, cycling and renewable energy. I have just had 16 storage batteries and solar panels fitted to my home so the day’s sun comes out of the batteries at night.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?
Yes, definitely. I was talked out of Archaeology as a career by a wise Professor of Archaeology at Melbourne University when I wanted to switch after 2nd year Law. He said, Archaeology would not support a married life and a mortgage in the same way Law would! I stuck it out and loved every minute of being a solicitor for 23 years, and then a public sector CEO in courts and legal regulation for the last 9 years. Law offers so much human contact and community influence, allowing you to advise and assist people by generally knowing how to get things done.

What was the single moment, case or event that you feel defined you as a lawyer?
Winning a hard fought, impossibly difficult, but truly deserving case against the Commonwealth for a client. It was called the Australia Post case. My client was shot by the deranged gunman, Frank Vitkovic, during what became known as the Queen Street massacre in 1987. John Dyrac survived being shot in the neck and shoulder at point blank range by an M1 Carbine when he opened the door for the gunman. The floor was bullet-proof because Australia Post held $250,000 of collectable (and steal-able) stamps, but had ceased using the security equipment properly. It was a hard case to win because the law was ill-defined about whether an employer was liable for the movements of a madman with a gun, even if the employer planned for gun invasion in their workplace. The Supreme Court jury upheld the negligence action against the employer after a two week, highly publicised trial. This defined me because it involved me and my firm taking a big risk in a controversial case for a client who could never have personally afforded to bring it to court, and involved success in a case many people thought would fail.

If you could only give one bit of advice to new lawyers, what would it be?
Accept that whatever your experience, clients will give a lawyer a free gift of trust when first appointing them. That gift is yours to lose by a number of simple means: lying, misleading, fudging, over-promising, under-performing and the super-human complex. The super-human complex is feeling your client expects you to know and do everything for them. You need to reduce or change your client’s expectations about what you can and can’t do for them at the outset of the relationship. Don’t do legal work for clients that is beyond your knowledge and understanding. Refer or get help. Your client will respect you for doing this because they will see you are acting to protect their interests.

What makes a lawyer a great lawyer?
Knowing the importance of servicing and communicating with your client. Great “bedside manner” is valuable. Remaining humble and conscious of the community role every lawyer plays as an officer appointed by the Court, with a primary duty to the Court, but then to represent the interests of their client to the best of their training and ability.

What would you say are the hazards of this profession?
Conflicts of interest between clients’ interests and fee budgets. Stress and anxiety in the working life of a lawyer causing performance, conduct and health issues.

What are your hopes for our profession?
That it continues to meet its own very high standards of ethical conduct, trustworthiness and fairness. Also, that it shifts to a fully national uniform regulatory scheme.

Michael was appointed as the Commissioner and Board CEO in December 2009. Prior to this Michael was the CEO of the Supreme Court of Victoria for three years. He practised as a solicitor at Holding Redlich for 23 years where he specialised in personal injuries, civil litigation and dispute resolution. Michael is a Graduate of the Australian Institute of Company Directors and is also a graduate in strategic management of regulatory and enforcement agencies from the John Kennedy School of Government, Harvard.