"I used to be so big and strong. I used to know my right from wrong. I used to never be afraid." -nine inch nails - "down in it"
How did I, an attorney in Daytona Beach, Florida, come to represent Steven Avery? Let me set the scene - 2015. A cold snowy morning in the hills of North Carolina. A fire roaring in the background (in a fireplace obviously). A battered tablet connected to the back of my Dad's television. That is how I was formally introduced to Steven Avery, huddled by the Christmas fire, my family snuggled together to binge watch the Netflix documentary setting the world ablaze. Collectively, we gasped in horror and shock at the legal horror show unfolding in front of us. Four of the five watching are attorneys, three practice criminal defense - each "mistake" drew groans. At one point, we had to break to refill our drinks and quickly "Google" the outcome. Spoiler Alert - he gets convicted. again.
What were we watching?!? This documentary captured everything wrong with the criminal justice system - false convictions, failed appeals, horrific lawyer-ing (and some great lawyer-ing too), a media circus fueled by the prosecution all culminating in one word "guilty." But in hindsight, the on screen drama should not have been surprising to me. Because I realized I had represented Steven Avery.
Not the middle aged white man from the eccentric family; not the Netflix's "star," wrongfully convicted and imprisoned for eighteen years, not the man re-arrested at the height of bringing his civil suit for compensation and reckoning, not the man then convicted and sentenced to life imprisonment for murder, not him. But he is just one of many. The Averys I know and represent - the Avery criminal law attorneys all experience - is a personification of personification of the total failure of the justice system. My Uncle knows him. My wife knows him (he writes a lot of appeals) but has never met him face to face. We all are criminal defense lawyers. We all know Steven Avery. We work with him. And it is our job to prevent anyone else from becoming just like him. Daunting task.
Thanks to Netflix and a string of recent TV "true crime" shows (including the FX OJ Simpson story) I think eyes are opening to the serious deficiencies in our justice system. The problems are not confined to any particular town or geographic area. Avery's story could have unfolded in almost any county in America. As advocates, we can use the Netflix show as a quick shortcut for our discussions - a way to bring home to any audience the problems in our system. Here are some of my "take-aways" from the documentary.
A jury convicted Avery of a rape we know he didn't commit.
The Innocence Project has demonstrated conclusively that eye witness testimony contributes to many false convictions. "Junk science," "jailhouse snitches," and false confessions (given under duress) are overwhelming present in cases where the accused was later exonerated by DNA or other means. The "take home" message is that the system got it completely wrong at the trial level - the jurors and judge failed. And it did not get fixed at that level. We need to make sure that we are challenging all those flawed means of obtaining a conviction. We need to guard against improper arguments and fight the battle at the trial level. Preserving the record is great (and it maybe all you can do) but the further you are from the trial bench, the harder it becomes. Leading to the second point: Avery stayed in Jail, although innocent, through an entire appellate process and the erroneous conviction was upheld.
In Florida, our appellate courts are courts of last resort. Nationally, our collective system is really geared to insuring the finality of a conviction. Imagine explaining to an advanced alien race (let alone foreigners) that, in our country, one of the worst claims you can raise on appeal is actual innocence. Imagine that. Combined with the real risk of a "false conviction" you have the elements of a terrible tragedy. And most will not be televised.
Hell, they get promoted. To be clear, if you prosecute a case with integrity then you have nothing to be ashamed of. For example, some prosecutors have come forward and apologized to exonerees, one even offered to surrender his license. But this is an exception to the rule. I would have a hard time sleeping if I thought I had contributed to the conviction of an innocent man. And I believe most prosecutors would too. But for the bad apples, with a few notable exceptions, very few consequences behalf the overzealous prosecutor. Those who do get disbarred just go on TV where they continue to poison the public and undermine the concept of due process and the presumption of innocence. So, people accused of crimes are facing opponents who have no risk, no skin in the game. Win or lose, they go home. Unlike civil cases, the other side does not even have legal fees to worry about.
Most people look down on those accused of a crime. Consider the "busted" mugshot sites, modern day pillories, to shame and humiliate the accused. Maybe it takes a viral documentary to point out to most of America what my minority clients know instinctively - the system is flawed. Anyone can be accused of a crime, slapped in handcuffs and dragged off. Don't think it could happen to you? I have a thousand clients who thought that.
And those are just a few of the points we can all take away from the Netflix documentary, regardless of the ultimate outcome of the second trial. And as a defense attorney, I am thrilled with the attention Avery has received. Monday, I look forward to talking to a panel about the documentary and their thoughts on it. There will be no bad answers (only bad jurors) and I hope to learn a lot about the men and women who will decide the client's fate.
Our legal system is premised on a seemingly simple tenant - the adversarial system counts on both sides to strike hard fair blows at the other's case. We believe the result, put in front of citizens, will be true. Assuming both sides are equally equipped, trained and prepared, we trust the result. If you ask the average juror if they agree with this philosophy, almost everyone will nod solemnly. Of course, the errors in the equation are easy to spot - trials are rarely fought by fully trained lawyers with the force as their ally. Not all lawyers have the deepest commitment, the most serious mind. Many do not have the resources they need. Thousands of articles have been written on this topic.
I do not think Avery had bad lawyers - in fact, his defense lawyers appear heroic to me. What Avery illustrates most to me is that bad things can happen even when you have good trial lawyers. Most importantly, Avery points out to me the total failure of the appellate process. How many more people will spend years in prison for crimes they did not commit before being released. How do you compensate a person for such time. Most importantly, why does our justice system try so hard to make the trial level the final level. The law will always generate errors and we must never value closure over the search for perfection.
In the end Avery's case may just be another social phenomena and twenty years later VH-1 fodder. But for the moment, it is a valuable tool from criminal lawyers. It gives us a chance engage with people about what we do and how important of a role the jurors play. I intend to talk about Avery's case in every voire dire and I encourage you to do the same. Because if even one Juror has seen the documentary, there will be a spark.
And when something enflames popular culture, what do criminal attorneys do? We keep the flame alive, we fan the ember in each case and burn away apathy. We encourage the conversation with our friends and hopefully our jury pools. We make sure people keep talking about "how this all happened."
Because we need to use Avery as a reminder, a way to get and keep attention, to shock or enrage. To light the fire to heat us against the cynical cold that tries to burrow into our bones. There is a Steven Avery out there right now, sitting in a jail cell, waiting on someone ... is he waiting for you?
Aaron D. Delgado had no involvement in the actual Steven Avery case, he just has Netflix. Aaron finds it strangely arousing to write about himself in the third person. A 2004 graduate of University of Florida (who has never been a spectator at single college sporting event in his entire life) practices criminal defense as the managing partner of Delgado & Romanik , PLC., an AV-rated firm with offices in Daytona Beach, Deland and Altamonte Springs. As President of the Volusia Chapter of FACDL, he started the Front Line series of CLEs to provide in-depth training on narrow topics of local concern. Shockingly, he is asked to teach professionalism and ethics to other attorneys with increasing frequency and has hosted an annual DUI and trial skills seminar for the local public defenders. Aaron's amazing wife Jeri is an appellate public defender, his constant editor and the love of his life. They are the proud parents of a very precocious Pomeranian, Puggle and Bulldog. He really wants to be invited to speak at Blood Breath and Tears!