The Netflix series Making a Murderer brought a national spotlight to one small Wisconsin town and the story of a man and his nephew caught in the justice system. Steven Avery and Brendan Dassey have been in prison for a decade, and unless lawyers for the two can uncover new evidence, they will be there for the rest of their lives.
Dean Strang and Jerry Buting, Avery's defense lawyers, have become unlikely heroes of the show — which is not an everyday thing for people most often portrayed as slimy and unscrupulous on episodes of Law & Order. Strang has become the object of the internet's affection, but the 55-year-old wants to use his fame to highlight the problems he encounters within the justice system as a whole, and not just for one man victimized by biased local officials.
Strang took time from his busy schedule to speak with Refinery29 about the Avery case, the unique challenges of being a defense attorney, and what people can do for Avery and Dassey instead of signing a petition. This interview has been edited for length and clarity.
What can people who are incensed about the case do practically both to help Steven and Brendan?
“Well, for helping Steven and Brendan at some point, a defense fund that’s actually genuinely connected to them will be established. I mean the family with my help is working on that now, but it doesn’t exist yet. Yeah, you know that will happen soon.”
"Really for most people, I think the most productive thing they can do is not focus on two individual — albeit compelling, cases in one county, in one state in the United States — but rather, start focusing on their own dinner table, in their own workplace, in their own community. And I think that just really does start in conversation."
"And you know, people saying, okay, in my community, could this happen or what kinds of things do I know about my community that would make me think that similar things might happen here?"
"And I know I'm speaking very generally, but I do think that the power of this film overall – that it poses questions about whether similar stories are happening all over the United States in varying degree or with varying similarities."
Talk a little bit about the fact that you guys couldn’t present a theory of the case, that a different person did it. Why was that?
"So what we had wanted to present was specific possible third party culprits by name. You know Person A, Person B, could have done this, and here's evidence showing they could have done this. Okay? And that's what the judge excluded here."
"The judge did not mean to bar us from raising reasonable doubts about whether Steven did it by saying, 'Hey, did you investigate this lead or did you look at this person?' Within some reasonable limits, we were able to explore those kinds of questions about investigative choices or investigative oversight in cross-examination. We were allowed to do that. But if you want to name a third party culprit in specific, every state has some sort of judicial law on that."
"The conflict of values is this: On the one hand, if a defendant is asserting his innocence and trying to defend himself, and there's Person B, who was a really viable suspect and really might have committed the crime, Defendant A ought to be able to point the finger at Person B in search for the truth. And on the other hand, Person B has not been charged. He has no standing to come in and defend himself, okay, because he's not a party in the lawsuit."
"In Wisconsin, one of the things the defense has to prove, if it wants to name a potential third party culprit, is motive. You also have to prove opportunity. And the asymmetry here is that the prosecution never does have to prove motive against the guy charged. The jury is told the prosecution does not have to prove motive. Don’t expect them to prove motive. But the defense does, as to a third party culprit."
What other asymmetries do you have to deal with on the defense side?
"I can give you a very common example. The state collects physical evidence when they're investigating a crime, let's say. All kinds, it might be, all kinds of physical evidence, whatever. And the state then has that, and it can have its crime laboratory test this evidence. It can send it out to other experts. It can do whatever it wants with its evidence in testing it."
"If the defense wants to test physical evidence, it has to go to the judge, get permission to do it, make a showing of why it should be allowed to do independent testing, and then often there are very tight restrictions on how that’s done, that functionally gives the state access to the defense test results."
At the end of the series, the only real hope for relief is if there's new evidence or some sort of new development. Have there been any changes or anything that might change the prospects for Avery or Brendan?
"I've gotten a flood of ideas, potential leads, thoughts, or advice about scientific testing that might be done. Scientific techniques that might be available now, or that are available now that weren't available in 2007, more economical ways to do scientific testing than were available in '07 or '06 or '05. You know and when I say potential leads on other things and ideas, I mean possible new factual information."
"So there's been really kind of an avalanche of that information to me. I think that Jerry Buting, and although I haven't talked to him about it, I'll bet that the Brendan Dassey lawyers are getting the same kind of information. And right now I don’t know what, if any of that, will pan out as important."
What's the lesson for people who are horrified about what happened to Brendan and the way that the system worked against him?
"This happens. This happens. You know there's a lot of developmentally delayed people of all ages who get brought into a police investigation. We treat children as young as 10 as adults for some crimes in Wisconsin and in many other states, and many more children as young as 14 can be prosecuted as adults."
"And so when you couple developmentally delays or learning disabilities with youth, and you match that person against two or more adult, intelligent, trained police officers who have been trained in psychological interview techniques and manipulative interview techniques, you are creating a situation that is rife with risk of false confessions, just to be blunt about it."
Do we need to do a better job with all children when it comes to understanding some element of what is going on if a police officer wants to ask some questions?
"Yeah, we need to do a lot better job. And we are beginning to make strides in that direction. For example, probably 10 years ago, something like that, the Wisconsin Supreme Court just established a rule that if the state wants to offer juvenile's statement against him, you know confession, for shorthand, that has to be videotaped or audio taped if it's at all possible to do."
"Is it enough? I don’t know. I mean is it enough to even be talking – speaking anymore arbitrarily about juvenile versus adult, meaning legal age and majority at 18. You know whatever, that’s probably not okay anymore because neurosciences developed to the point where we know that the human brain isn't fully developed and matured until something like age 25."
How has the attention affected you?
"At the moment, for a very short moment in time, I've got people who want to ask me the sorts of questions you're asking, and then take down my answers, and publish them to the world. So I think I have some duty to use the moment, to speak up about problems that I think I perceive by working in the criminal justice system."
This is its own little tangent, but I'm curious for your thoughts: Money in the criminal justice system. What should people really know about that?
"What people should realize is that north of 90% of all people charged with a crime in this country, in any county, in any state, in any federal court, north of 90% don’t have the money even to hire a lawyer. Better than 90% of people charged with a crime in this country don’t have the money to hire a lawyer, and you know they wind up getting a public defender or a court appointed lawyer. That’s how dependent our system is on charging people who are at or near an impoverished existence."
Final question for you: do you feel like there are any really positive takeaways from the success of the series and the attention that it's garnered for the case?
"You know I think millions of people are talking about this and I'll tell you what, when – you know one of the things that’s been a little distracting for me is I'm now being recognized out on the street. Or, you know, if I go to a restaurant, you know, I get recognized."
"And you know who recognizes me most often? I mean it's been people of all ages, but who recognizes me most often? People under 30. It's people under 30 who mostly are coming up to me and wanting to talk to me about the series or the film."
"And that, you want to end on a hopeful note, that’s really freaking encouraging, okay, because you know millennials get this unfair rap about being apathetic or self-absorbed or uninvolved or lost in their smartphones. You know what I mean? You know their ear buds in, whatever, right? That’s unfair. And I've been really encouraged about the number of people under 30 who are coming up to me with a glint in their eye and saying, '"Wow, I saw that.'"
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