THE LEGAL SYSTEM
Neil White, an author who served as Senior Crown Prosecutor for 17 years, made the case for the prosecution at the Making A Murderer mock trial at Crimefest. Neil quizzes Steven Avery’s defence lawyer Dean Strang on the US justice system.
You were concerned about the impact in the jury room of the early press conference that the prosecutor gave in the case. In the States free speech is obviously important, but do you think there should be some kind of sub judice rule like we have here?
I like the US system of putting the restraints on speakers, who appropriately can be restrained, rather than putting the restraint on the media. In the UK you have a long tradition of things like the Official Secrets Act, where it’s punishable for the press to print an official secret. In the US, we instead look at who provided the official secret to the media – and it’s the speaker who is punished, not the media outlet that happened to come into possession of the secret. Lawyers are officers of the court; they legitimately can be restrained in some regards in what they say. That, I think, is my preferred method for addressing what we all agree is a problem, which is inappropriate prejudicial pre‑trial publicity that seriously threatens the right to a fair trial.
So you’d like to keep the free speech, but manage it?
Yeah, and I also concede that our system of ethical discipline of lawyers for their extrajudicial statements failed here in my view – and it has failed many, many times.
Do you think that despite the fact juries sometimes get it wrong, the jury system should remain?
Yes, I do. I will cast my lot if I’m forced to choose with citizens with the purpose of pursuing justice, rather than with judges – especially in a country like mine, where judges are elected at the state level in most states. I think judges often become overly habituated to the courthouse culture, and habituated to the police officers, prosecutors and public defenders, and can lose sight of the freshness and the zeal for pursuing justice that ordinary citizens bring.
Even a prosecutorial observer might well say there are still a lot of questions that need to be answered in the Avery case, and yet he was still convicted. Do you think there is a fault line in the justice system in America?
In many regards, Americans have a high baseline confidence in the day-today functioning of their law enforcement agencies and government functionaries. Now race can play into that – you know if you’re a member of a minority group I’m not sure you have the same level of confidence about your encounter with a police officer on a minor infraction. But, overall, Americans tend to believe that if the police have arrested you, you probably did it; if the prosecutors charged you, you probably did it. So Americans really apply a presumption of guilt for people charged with a crime, not a presumption of innocence. And that’s the fault line. That can be dangerous when the media then cement that presumption of guilt with pre-trial publicity or the lawyers do it through the media, and it turns out to be a case where guilt really might be very contestable.
As a prosecutor, I usually know what the knockout blow is – or if I were to lose the case, I usually knew what the blow was coming my way. Could you pinpoint what you think caused the guilty verdict?
In the dynamic of the trial, I thought it was the judge allowing the FBI to testify about the EDTA testing results at that juncture of the trial [the defence argued Edta-preserved blood had been planted]. That’s what I thought it was when I looked back at the dynamic of the trial, and how you feel momentum shift during a trial. I didn’t think the blood was a knockout blow for us, I just thought that the FBI being allowed to come and us not having much of a response to that, because it was midtrial, just shifted momentum generally. You know we’re talking about the sort of the seat-of-the-pants feel, which I think is what your question asked.
Even as a prosecutor, I watched how Brendan Dassey was treated and I was quite staggered that a young person could have so little protection when being dealt with as a suspect. Do you think there is public appetite to provide more protection for suspects?
I think that people are generally happy in this country with the protections that exist, or at least they don’t think that more protection should be afforded to the arrestee or the accused, with this significant caveat: I think we’re in a moment in this country where many people would be happy to see the punitive quality of juvenile justice ratcheted back at least a little bit, and where many people think that juveniles in custody or in police contact perhaps should be afforded some additional protection. Brendan Dassey’s experience – now that millions of people have seen it – has amplified that public sentiment in the US.
Finally, how do you cope with being a criminal lawyer and a sex symbol?
I ignore the “sex symbol” because it’s preposterous – it’s just untrue and silly and that’s a momentary bubble of popular culture that popped very quickly.
Dean Strang, Avery’s defence lawyer.