POST WRITTEN BY: Danielle Petretta (’17), J.D. Pace Law School
On March 2, 2016, Pace Law School’s Criminal Justice Society, Student Bar Association, and the Criminal Justice Institute held an event on the controversial and popular Netflix 10-episode documentary, “Making a Murderer.” The documentary centers on a man named Steven Avery, who found himself stuck deep in the trenches of our criminal justice legal system within a very small knit rural community in Wisconsin.
Steven Avery spent 18 years in prison for a crime he did not commit and in 2003 was finally exonerated. This case received much attention including an effort to pass a bill – the Avery Bill – implementing checks and balances regarding police interrogations, handling and testing of DNA evidence, and policies surrounding an eye witness identification procedures to prevent wrongful convictions. However, his nightmares continued, as just two years later he was arrested for the murder of 25-year-old photographer Teresa Halbach. Steven Avery’s nephew, Brenden Dassey, was also arrested for partaking in the Halbach murder. Both Steven Avery and Brenden Dassey remain in prison to date and Steven Avery continues to claim his innocence this time around as well. It is yet to be determined what the status of their appeal is, and the documentary leaves gaping concerns and questions to be answered. The documentary maps Steven Avery’s unfortunate journey through the legal system to date and takes the viewer on a shocking ride.
Did the fact that the Avery’s lived in Manitowoc County, a small knit community, affect the way in which they were treated? Did the appearances and social status of the Avery and Dassey families play an influential role in their prosecutions? Why was the police department involved in the first case able to have a continued presence and involvement in the subsequent Halbach case? Was the evidence tampered with? Were proper police procedures followed? Did someone tipped off the woman who found Teresa Halback’s car in the Avery’s 4,000 car lot within just a few minutes? Why was the same judge deciding Avery’s motion for a new trial when he had been the presiding judge in his trial? What happened in the jury room? Why was the key, one main piece of evidence against Avery, found days after the seventh search?
The discussion panel held at this fabulous event consisted of professors, former prosecutors, and the Greenburg Chief of Police. Professors of professional responsibility, criminal procedure and criminal practice provided valuable feedback responding to many of the questions continuously discussed. After the initial introduction of the topic by the panelists, the room flooded with questions and comments about the documentary, what it portrayed as well as what it didn’t establish. Discussions and comments about the police work sparked much attention among the crowd of students and current attorneys, and critiques and opinion regarding the prosecution and defense lawyers’ conduct triggered a heated response from the audience.
This discussion panel coupled with the audience forum offered an amazing opportunity for students, attorneys, professors, and community members to debate and challenge the current criminal justice legal system that is so embedded within our society.
- Lissa Griffin, Making a Murderer: A Broader Debate, Pace Criminal Justice Blog (Jan. 29, 2016).
- Netflix – Making a Murder
- Steven Avery Innocence Project Profile
- Yoni Heisler, Making a Murderer, BGR (Jan. 14, 2016).
- Jack Murtha, The Media’s Complicated Role in Making a Murderer, Columbia Journalism Review (Jan. 7, 2016).
- Mike McPhate, Record Number of False Convictions Overturned in 2015, New York Times (Feb. 3, 2016).
- How ‘Making a Murderer’ Exposes Flaws in Juvenile Justice System, MPR News (Feb. 1, 2016).
- Wisconsin Law Journal Staff, Avery Bill Finds Legislative Support, Wisconsin Law Journal (Aug. 31, 2005).
- Steven Avery Trial Transcripts and Documents
POST WRITTEN BY: Alexander Zugaro (’15), Pace Law School
The story of the 6-year-old boy, Etan Patz, who had gone missing in SOHO Manhattan in 1979, is one that stretches over several decades. Now, after a ruling on November 24, 2014 by Judge Maxwell Wiley and almost a three month long trial, the story is reaching a conclusion. In 2012, after police re-opened the investigation, Pedro Hernandez confessed to law enforcement that he was responsible for the disappearance and murder of Etan Patz. He told law enforcement that he strangled Etan and disposed of his body. Mr. Hernandez was an 18-year-old man working in a neighborhood convenience store at the time of Patz’s disappearance.
However, this past fall a hearing was held regarding the admissibility of Mr. Hernandez’s confession. Hernandez’s defense attorney, Harvey Fishbein, argued that Hernandez was schizophrenic and bipolar at the time he made his confession. As such, Mr. Hernandez did not understand he could reassert his right against self-incrimination even after he waived his Miranda warnings. Yet, Judge Maxwell Wiley ruled on November 24, 2014 that the confession was admissible, stating that Hernandez waived his Miranda rights and that such waiver was done knowingly and intelligently.
To date the prosecution has not been able to find any evidence corroborating Hernandez’s confession, except a statement made by Hernandez’s brother who told police that Hernandez had confessed to him two years prior to his arrest and a statement made to members of his prayer group in the summer of 1979, none of whom came forward to testify until after Mr. Hernandez was arrested. The body of Etan Patz was never found, and prosecutors have not presented any physical evidence tying Mr. Hernandez to the boy’s disappearance.
The significance of Judge Wiley’s ruling is that the jury was able to hear Hernandez’s confession and will decide on whether they believe his confession is reliable. Defense attorney Frishbein stated that “Mr. Hernandez is extremely suggestible because of his low I.Q. and other mental handicaps. Anyone who sees these confessions will understand that when the police were finished with him, Mr. Hernandez believed he killed Etan Patz, but that doesn’t mean that he did.” On the other hand, however, the lead prosecutor stated that Mr. Hernandez’s statements contain little-known details about the crime that would be hard for someone to invent. Because Judge Wiley ruled that Hernandez’ confession is admissible, the prosecution was able to present this confession as evidence to the jury, leading to the inevitable back and forth between Mr. Fishbein and the prosecutors about the reliability and weight of the confession.
Generally, if a defendant makes a videotaped confession coupled with voluntary admission to at least one other person, such evidence would be nearly impossible for the defense attorney to overcome. However, since in this case there is no tangible evidence corroborating the confession, will the jury doubt the accuracy of Mr. Hernandez’ confession? Time will soon tell.
Since the beginning of the trial on January 30, 2015, the defense has continued to undermine the reliability of Hernandez’s confession. Not only has the defense argued that the confession was a fantasy invented under police pressure by a man with a weak and malleable mind, plagued by a personality disorder, Mr. Fishbein has presented evidence of an alternative suspect who might have been responsible of Etan Patz’ disappearance. Witnesses place Jose A. Ramos, a man convicted of child molestation in an unrelated case, near Etan Patz’s home around the time of the murder. Ramos was dating Ms. Susan Harrington, who was hired to walk Etan Patz to and from school. The defense witnesses further testified that Ramos met Etan Patz and that he had been in the Patz’s apartment. Although Etan Patz’s mother denied Ramos was ever in their apartment, by presenting this evidence, the defense further undermined Hernandez’s confession.
The confession of Mr. Hernandez has become the focal point of the entire trial. As the attorneys are delivering their closing arguments, many people following the case and trial, I’m sure, have developed their opinions. For me, it was important to realize and understand that an innocent defendant and a defendant being not guilty are two very different things. The defense attorney has to create a reasonable doubt in the jurors’ minds that Hernandez has possibly not committed the alleged crime in order to succeed. Mr. Fishbein’s efforts to cast this doubt by introducing an alternative suspect theory, by undermining the reliability of the original confession, and by pointing to the lack of physical evidence have been clear. However, it is difficult to tell what the outcome of this case will be. As the jury is about to retire to deliberate, the long anticipated verdict will soon be revealed bringing this case to a close after decades of waiting.
- James C. McKinley, Two Portrayals of Patz Suspect: Manipulative, or Mentally Ill, New York Times, (March 8 2015).
- John Riley, Etan Patz Trial: Members of Prayer Group Testify that Pedro Hernandez Said He Killed Boy (Feb. 6, 2015).
- James C. McKinley, Etan Patz Trial Starts, 35 Years After Boy Disappeared on SoHo Street, New York Times (Jan 30 2015).
- James C. McKinley, In Etan Patz Case, High Hurdles for Prosecutors and Defense, New York Times (Jan 29 2015).
- James C. McKinley, Confession in Etan Patz Case Can Be Used at Trial, Judge Rules, New York Times (Nov. 24, 2014).
- James C. McKinley, Judge in Etan Patz Case to Decide if Defendant Understood Rights, New York Times (Oct. 7, 2014).
- James C. McKinley, Confession in Etan Patz’s Killing: ‘I Tried to Stop, but I Couldn’t’, New York Times (Sept. 15, 2014).
- James C. McKinley, Defense Witness Places Different Suspect in Etan Patz’s Apartment, New York Times (Mar. 30, 2015).
The Supreme Court, Kings County, has granted a post-conviction motion to vacate a conviction (CPL 440.10) where the defendant’s attorney accepted employment with the Kings County District Attorney’s Office after having been substantially involved in the preparation of the case for trial. The attorney was assigned to the homicide bureau, became Chief of the Trial Division, and then an Executive in the office and there were no mechanisms put in place to avoid a breach of confidence or the appearance of a conflict of interest.
People v. Dennis, Indictment No.: 12843/1989 (N.Y. Kings Cnty, Mar. 16, 2015).
While the jury deliberation process remains safely secret in our system, there are limits to what jurors can do and say to each other in the deliberative process when that process spills over into the courtroom. Federal District Judge Kimba Wood recently granted a petition for a writ of habeas corpus to a defendant in a case where a Bronx trial judge refused to investigate claimed racial bias among the deliberating jurors that was brought to his attention during deliberations.
In the underlying murder trial, the jury was in its third day of deliberations when a juror sent a note to the judge saying he had been called a racial epithet and felt as if he were being forced to agree with the other jurors. A second juror asked to have deliberations suspended until the following Monday due to overwhelming tension in the jury room. On Monday, the first juror sent another note saying he was exhausted and could no longer be objective. The judge declined defense counsel’s request for an in camera interview of the individual jurors, encouraged the jurors to continue deliberating, and sent them back. Three days later the jury convicted the defendant of manslaughter and he was sentenced to serve 20 years in prison. The Appellate Division affirmed, finding that the error had not been preserved, and the court of appeals denied leave. The magistrate judge issued a report advising that the habeas petition be denied because of the same procedural default.
Judge Wood disagreed. She held that defense counsel’s objection placed the trial court on notice of the constitutional basis for his objections. Thus, the state’s contemporaneous objection rule “served no legitimate state purpose.” On the merits, the Court found that the case was one of first impression in the Circuit – Whether Federal Rule of Evidence 606(b) which bars inquiry into the validity of a verdict, prohibits jurors from testifying about statements during deliberations. The court found that the policy behind the rule – preventing the badgering of jurors by a losing party and endless litigation – does not bar the reviewing court from considering such statements when they are brought to the court’s attention before the verdict is returned. The court held that the defendant was denied a fair trial because, on the basis of a verbal racist assault, which was evidence of actual bias – deprived the defendant of his right to an impartial jury.
- Haxhia v. Lee, No. 13-CV-1012 (KMW), 2015 WL 891679, 2015 U.S. Dist. LEXIS 25440 (S.D.N.Y. Mar. 2, 2015).
- Mark Hamblett, Judge Grants Habeas Where Juror Tensions Were Not Addressed, NYLJ (March 9, 2015).
- Federal Rules of Evidence 606(b) (at Cornell LII).