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.

Crime Scene - - SPOTLIGHT -

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.

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