Monday, January 29, 2007

What happened in the Avery case?

I am in D.C. tonight but heard, as I was leaving, that sexual assault and kidnapping charges against Steven Avery have been dropped, although the charge that he killed Teresa Halbach remains. I am just guessing, but the problem seems likely to be Brendan Dassey. He's evidently recanted. Dassy may apparently still testify under an offer of immunity(which may not, incidentally, immunize him from the charges against him in connection with the Halbach slaying - a prospect that Peter DiGuadio - finds unsettling - but only against use of whatever he says against him). But it seems fairly evident that he won't be telling the horror story that he told detectives. Without testimony regarding the holding and rape of Teresa, it may be that the only thing the DA can establish is that she went to Avery's property, her car was found there, Avery's blood was in her car, his DNA was on her ignition key which was found in her house(although they took awhile to find it) and that her remains were found on his property. Maybe that's enough for the murder but it does not establish that she was kidnapped or raped.

It'll be a strange case because, although I haven't followed their strategy, the defense may put in Avery's prior criminal history, i.e., the rape charge on which he was exonerated, to argue that he was framed here. Can it work? At first blush, it seems impossible to be sure that it won't. The evidence against Avery seems no stronger than that against O.J. While there is no good reason for Teresa's car and remains to be on his property (there was nothing incriminating about where Nicole Brown and Ron Goldman were found), you can explain a lot away if you can get the jury to believe that the cops were planting things. Although the defense won't be able to exploit the inflammatory racial angle, there is the argument that "they did it before" although Avery's first conviction seems to have turned wholly on a bad eyewitness ID.

Still, there is the prospect that this guy could walk when almost everyone in the state has heard his nephew's confession, seen that creepy photo in the Journal Sentinel and is convinced that he did it.

The big loser in that - unfairly, I think - will be the Wisconsin Innocence Project. It did nothing but what was right in Avery's first case, but these fine distinctions are often ignored and, to at least some degree, the fallout might be a natural consequence of the tendency on the part of many in the criminal defense bar to portray themselves as fighting against a "system" rather than defending a client. This leaves them open to charges of undermining the system when a jury goes off the rails - as it did in the OJ case. (I am not saying that acquitting Avery would be "going off the rails." He is innocent until proven guilty and we have not heard the case.)

Critics of the system would say that this is simply "blaming the messenger" and there is some truth in that (even if I don't buy most of their message) but we may be in for quite the spectacle. Because the emotions surrounding this will run high, I hope that the media and public commentators will be careful to be measured and accurate. Our system is set up to err in the side of the wrongful acquital over the wrongful conviction, but public perceptions of the latter can enrage just as much as the former.

2 comments:

Peter said...

Thanks.

You were the first attorney/blogger I could think of that might shed a legal light on what happened today.

I hope they can still get a conviction. But I have this sinking feeling they made a mess of the case and all it takes is one guy to believe the "he wuzz framed" defense that is coming to get a hung jury.

Lew Wasserman said...

It's not usually a good sign for the prosecution when the trial court denies a motion to introduce other acts evidence, as happened here in (I think I have this right) September. It's a sign of overreaching, or its a sign of poor legal briefing, or its a sign that the court is going to avoid this particular appellate issue, or some combination of all those and of course many other possible problems, but this just seems to be a prosecutor who is out of his league with Strang and Buting. I am curious as to how this special prosecutor (why didn't they bring in someone from the Milwaukee County DA's Homicide unit...OK they have too much to do already) missed a deadline? Did Kratz fail to apply for an extension of the scheduling order? In any event, I wonder if there was any discussion of how failing to name Dassey in a timely manner prejudiced Avery, which is always how courts analyze motions concerning a party's tardy naming of witnesses. And there is nothing to prevent Kratz from using Dassey as a rebuttal witness! We will soon see.