It was the television series which took the world by storm, now the legal superstars of Making a Murderer are making their way to New Zealand for a one night appearance at Auckland’s Aotea Centre. Join Tristram Clayton as he talks with Dean Strang and Jerry Buting. They were the defence attorneys for Stephen Avery, the man accused of murdering 25 year old Teresa Halbach. The success of the show turned them into household names, even unlikely pin ups.
Steven Avery's former lawyers from the groundbreaking Netflix documentary Making A Murderer say new DNA evidence might be enough to prove authorities framed Avery, among a number of explosive revelations laid out in Sydney this week.
Speaking at the Opera House on the Australian leg of their worldwide A Conversation on Making a Murderer tour, Dean Strang and Jerry Buting are hopeful that radiocarbon testing of the blood found at the scene of the crime could provide a firmer timeline of events into the murder of Teresa Halbach, for which Avery is serving a life imprisonment without parole.
"There has been some improvements in science," Buting said.
"Scientists from all over the world contacted Dean and I immediately as soon as Making a Murderer came out. Forensic science may have now moved to the point where some of the unanswered questions might be answered - and that's what his lawyers [are] trying to do.
"That's his best route - scientific evidence that's objective that could result in getting a new trial."
Avery's new legal team, notably Kathleen Zellner, who specialises in wrongful convictions, has taken their first step towards a motion for a new trial, requesting tests through the Manitowic Circuit Court that were unavailable at the time of Avery's original trial in 2007.
Avery's lawyers are hoping that the blood found in Halbach's Toyota is older than the time in which it was found, proving it was planted and that Avery was telling the truth.
The motion asks for testing and retesting on an extensive list of evidence. This includes Halbach's vehicle key which was found in Avery's room with his DNA on it, Avery's blood which was found in the vehicle, and a pair of women's underwear found in the yard which could be tested to see if they belonged to Halbach and contain male DNA.
"The most reassuring thing is that we are going to get to the bottom of who killed Teresa Halbach," Zellner said. "And we firmly believe that we will establish it was not Steven Avery."
But, as Buting conceded, "it's not easy to get a conviction reversed in America".
Making a Murderer defence attorneys Dean Strang and Jerry Buting.
"The Chicago Cubs won the World Series, the first time in 108 years. Our odds are better than that. But Steven has to go back through the Wisconsin courts for justice and he hasn't had much luck in that department."
On September 11, 2003, Avery returned home after an 18-year stint in prison for the brutal rape and attempted murder of Penny Beernsten. He was released because DNA evidence freed him.
Avery filed a multimillion-dollar civil lawsuit against Manitowoc County, but his life was derailed again in October 2005, when Halbach was reported missing.
In November, 2005, Halbach's Toyota was found partially concealed at Avery's autoyard, and bloodstains matching his DNA were found inside.
He was arrested in November 2005 for possession of a firearm, and five more charges were later filed, including homicide.
Avery maintained his innocence, and hired Strang and Buting in February 2006. In March, Calumet District Attorney Ken Kratz held a press conference announcing the confession of Brendan Dassey - Avery's nephew - as an accessory to the murder.
In March 2007, Avery was found guilty of two offences - homicide and possession of a firearm. Six weeks later he was sentenced to life in prison without the possibility of parole.
Avery continues to serve his sentence at Waupun Correctional Institution, in Waupun, Wisconsin.
Dassey had his conviction vacated in August this year in Federal Court, claiming his confession was involuntary as a matter of requirements of the United States Constitution.
Steven Avery in court. Photo / AP
The state of Wisconsin appealed the Federal Court decision on Dassey to the Federal Court of Appeals in Chicago. Strang says it's likely to take another 15 months before it will be known if the Court of Appeals will uphold the Federal Court decision.
In the meantime, Dassey's lawyers are seeking bail - a decision is expected within a few weeks.
In the meantime, Strang and Buting revealed some explosives secrets you may have never heard.
STRANG AND BUTING MADE A DEAL WITH THE FILMMAKERS
After the pair signed on to represent Avery, it "became clear that documentary filmmakers had preceded us for more than three months and had already gained the trust of Avery and his family," Strang said.
The pair were reluctant to be involved in the project but didn't immediately foreclose their concerns.
"We talked to the filmmakers to get a feel for just who are these people, what sense do we have of the scope of their project and their intentions?"
An agreement was reached on two critical points:
1. Attorney-client privilege would be retained. The filmmakers would not seek to listen in on conversations between Avery and his legal team, or get into the exchanges between client and his lawyers.
"They agreed readily in part because Laura [Ricciardi, one half of the documentary duo behind the series] was a lawyer and making a career change into film," Buting said.
2. Not a trailer, not an ad, nothing, would appear anywhere publicly until after both Avery and Dassey had been tried.
THE PROSECUTION TURNED DOWN THE OFFER TO BE INVOLVED IN DOCO
Steven Avery in 1985.
Strang and Buting believed at the beginning that the prosecution was going to cooperate with filmmakers. "They [the filmmakers] had asked the prosecution several times if they would cooperate," Buting said. Clearly, the prosecution didn't want to be involved.
"We thought it would be a good public education opportunity if we cooperated, not having any idea that it would have the wide dissemination," Buting said.
JERRY BUTING ALMOST REPRESENTED BRENDAN DASSEY
During one of their first meetings together, Strang was attempting to convince Buting to come on board the trial.
"We'd been speaking for about an hour and we'd heard Brendan was going to be charged. The first thought that for both us was, 'I was not yet officially on the case, maybe I should represent Brendan'," Buting said.
But by then "we'd talked and shared enough private information that would have been a conflict of interest for me to do that. If they'd called an hour earlier, maybe I would have represented Brendan".
THEY REALLY DO BELIEVE STEVEN AVERY IS INNOCENT
Steven Avery listens to evidence. Photo / Supplied
"Jerry and I have always suspected that Steven Avery was actually innocent," Strang confirmed.
"We don't know that, we can't know that, we weren't there, but we just suspect it."
Strang said part of that decision came from a "hunch", but experience paved the way.
"It's enormously persuasive that this guy simply never said anything that suggested he did it," Strang said.
"He's not the sharpest knife in the drawer. For sixteen months his every word, literally, every word was recorded, and there was never a hint or suggestion or veiled comment that remotely suggested guilt.
"That's terribly shaky, it shakes me a great deal because my experience has been that guilty clients just confess. To me, to police, to somebody. That's what happens. It never happened here and that's unnerving.
"I can point to objective evidence and objective gaps in the evidence. We can't know whether somebody is innocent or guilty, what we do is try to ask 'is the charge proven beyond a reasonable doubt? Or is it not?'
"If it's not, then can we acquit somebody if there is reasonable doubt about his guilt?"
"We know the jury were supposed to be sequestered, they were sent home for five/six weeks of the trial with instructions that they were not to read a newspaper, go on the internet or watch television," Strang said.
"We're not confident that they didn't break the rules. One juror had a couple too many brandy Old Fashioneds and began shooting her mouth off about the case and what she'd heard in court - it happens."
Since the documentary, filmmakers Laura Ricciardi and Moira Demos say a juror on the case alleged they made a decision to convict Avery under duress. The juror never spoke about it because "he or she feared what might happen".
Another juror, Richard Mahler, who was excused early from the trial due to a family emergency, later claimed at the beginning of the trial, seven jurors had voted not guilty. But that was only the beginning.
"It's not unusual for a jury foreman to ask for a show of hands," Strang posited. "The first thing a jury does after selecting a foreman is to see a show of hands, either guilty or not guilty.
"In this case, it was seven not guilty, three guilty and two undecided.
"Part of the idea is that there should be room for discussion, but in America the idea of the sanctity of the jury room is so important that we can't even call a juror as a witness later about something that was said in the jury room."
The only exception, Strang revealed, is if someone has extraneous information that could affect the case.
"Other than that you're not even allowed to know what sort of deliberations they had."
