Convicting Avery

February 13, 2017
Even readers unfamiliar with the Netflix documentary series Making a Murderer will be intrigued by Cicchini’s insights into the inequities of the criminal justice. Steven Avery spent almost 20 years in prison for the rape of Penny Beerntsen, only to finally be exonerated by DNA evidence; when he sued the Manitowoc, Wis., sheriff’s department for wrongful conviction, he was arrested again and charged with an unrelated murder. The evidence against him included the suspicious discovery of the victim’s car key in plain view on Avery’s bedroom floor, on the sheriff’s department’s sixth search of his property. Cicchini, a criminal defense attorney based in Kenosha, Wisc., and author
of Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights, uses the unsettling Avery case to highlight common police practices and judicial attitudes that combine to stack the deck against criminal defendants. They include suggestive identification procedures such as show-ups, in which witnesses are shown only one person to identify, and Wisconsin’s loose practice of allowing expert testimony about pretty much anything from pretty much anyone. Even after that practice was ostensibly discontinued by the courts, judges still justified the admission of questionable evidence by stating that it would have been admissible under the prior standards. Cicchini convincingly demonstrates that the Kafkaesque criminal justice in Avery’s case was not an anomaly, and his work is an accessible entree into the debate over how defendants’ rights should be protected.

February 1, 2017
Rebuttal of the case against Steven Avery, from a defense attorney who sees larger patterns of malfeasance in Wisconsin justice.Cicchini (Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights, 2012, etc.), who assumes readers' familiarity with the popular Netflix series Making a Murderer, views the shady prosecutorial moves central to the documentary as typical of his state overall: "We defense lawyers are rarely bored....Wisconsin loves its massive, draconian, ever-expanding and increasingly irrational criminal justice industrial complex." The author relitigates Avery's troubling conviction by walking back through the cases against him, both chronologically and in terms of the procedural and evidentiary issues raised, adding legal depth to key points raised in the documentary. Many of these issues have nationwide resonance, such as eyewitness misidentification, which resulted in Avery's initial wrongful conviction for sexual assault. As the author notes, "Avery learned that his sixteen-witness alibi defense was far from airtight; the prosecutor defeated it with a single eyewitness." Another issue defense attorneys regard more dubiously than the general public concerns police interrogations leading to false confessions; here, the self-incrimination notoriously elicited from Avery's pliable, juvenile nephew is examined in terms of the manipulative techniques used by zealous detectives. Cicchini argues that despite the culturally reassuring Miranda warning, "police interrogations are a guilt-presumptive process." As in the documentary, the author regards officials' handling of DNA and physical evidence as most suggestive of possible corrupt behavior to frame Avery, who was pursuing a lawsuit for wrongful conviction against Manitowoc County at the time of his arrest. He additionally examines suspicious intricacies within Wisconsin's bail, preliminary hearing, and appellate procedures. Overall, Cicchini makes his case clearly. Although he's enthusiastic about picking apart the prosecution's narrative, his discussion of legal principles is occasionally technical, and specific case comparisons would have bolstered his insinuation that Wisconsin is an ominous legal backwater. Will engage fans of the series and readers who wonder if prosecutors really do cut corners in their campaigns against serious criminals.

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