'Making a Murderer': Steven Avery's Lawyer on Possible Jury Tampering - Rolling Stone
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‘Making a Murderer’: Steven Avery’s Lawyer on Suspicions About Jury

Jerry Buting says there may have been individuals who influenced the jury

Steven AverySteven Avery

Steven Avery with defense attorneys Jerome Buting and Dean Strang in court on March 16th, 2007

Dwight Nale/AP

Fans of the Netflix documentary Making a Murderer will recall that in the series’ final episode, Steven Avery’s lawyers gather to discuss any remaining legal options available to the convicted murderer.

Newly discovered evidence — for example, the results of a new kind of test that could conclusively determine whether or not there was EDTA in the blood found in Teresa Halbach’s RAV 4 — might be able to free Avery, Jerry Buting says. “Or some other newly discovered evidence: other people who know something,” Buting explains. “It may be somebody on the jury. It may be somebody who knows something that happened with the jurors. I’ve still got my suspicions about whether something improper occurred during the deliberations.”

Since then, at least one juror has come forward to say they believe Steven Avery is not guilty of murdering 25-year-old Teresa Halbach, and they only convicted Avery because “they feared for their personal safety.”

Rolling Stone spoke to Jerry Buting — who has been out of the country since the series premiered in December — to ask him about those suspicions and about any other concerns he still has about the jury that convicted his client. The interview has been lightly edited and condensed. 

In the last episode of the series, you mention suspicions you had about something improper that might have happened during jury deliberations — what did you mean by that?
Well, we knew from talking to the one juror who was let go after the first day of deliberations that the initial vote was seven not guilty, three guilty, two undecided. And I suspected that there might’ve been some undue pressure put — either from within the jury room or outside the jury room — that might’ve affected the fairness of each individual juror’s deliberation. And one of the jurors who actually sat through the verdict has since, apparently — I have not spoken to him or her — but they came forward and spoke to the filmmakers and felt like they were intimidated and pressured to vote guilty, and that they really didn’t think he was guilty beyond a reasonable doubt, and they really did think that the police had framed him.

Now, having said that, keep in mind that some jurors may have felt, yes, the police did plant evidence, but that may have done it to try and ensure a conviction of someone who may actually have already been guilty. So it’s possible that they could’ve accepted both theories, although not to the extent that we presented, I don’t think.

Then another juror apparently spoke to some local media and denied what the first juror said, so at this point, I think we still haven’t heard from at least 10 of them. Whether there might have been some other influence, I don’t know. Once the deliberation starts, they’re supposed to be sequestered and kept free from outside influence, and the only person who’s supposed to have any contact with them would be the two sworn bailiffs. I’m not so sure that was the case, but I can’t prove anything at this point. [There are] just some indications that we had that there might have been some other individuals that had some, if not direct, then indirect, influence on them.

When you say “individuals” do you mean members of the police department? 
Well, I can’t say. You know, I can’t identify any particular individual at this point, but there’s some possible indications of that. I mean, we know the jurors — even throughout the trial — they were not sequestered. And we knew that even though they were told not to watch video or TV or [read] print media, that some of them were not able to or did not comply with that order.

One of the jurors, pretty late in the trial, was dismissed because he had been identified by witnesses as having gone to a supper club for a fish fry on a Friday evening during the trial, and he was talking openly about the case to other people who could overhear, [and] this witness overheard it. Now, that juror was ultimately dismissed from the case before the trial concluded.

Another juror, I believe, revealed that her husband would sort of grill her every day, and pressure her with his opinion that Steven Avery was guilty, and that this trial shouldn’t be taking that long, and so on and so forth. I’m pretty sure that she was struck from the jury, the final 12 as well. But that just shows that even family members were having some influence on jurors.

Since the series came out, reports have surfaced that say one juror volunteered for the Manitowoc Sheriff’s Department. Were you and Dean Strang aware of that when the juror was selected?
Yes. He did disclose that, although the extent that I’ve seen in subsequent reports, the extent of his involvement, I’m not sure if he fully disclosed. That would be one of the things that we’d have to look into.

Some of the observers or commentators have noted: “Well, why would you keep somebody like that on the jury?” What people don’t understand is that picking a jury is really — it’s not like you pick who you want. It’s a matter of eliminating who you don’t want. You have what are called peremptory strikes, where the attorneys can strike, without reason, anybody they want. But we only had six of those, I believe. If somebody expresses a bias, or has too close a relationship during the trial, then the judge can, and should, strike them for cause.

So why didn’t that happen?
I don’t remember whether this particular juror, whether we moved to strike him for cause or not, but I know when we came down to having to exercise our peremptory strikes, we had to remove people who were, frankly, worse prospects than he was. So, that tells you how difficult picking a fair jury was in this case. I think in the documentary it notes, as we’re going through the jury questionnaires, I think every single one of them had expressed an opinion — or 129 [out] of 130 had expressed an opinion that they thought he was probably guilty from the pre-trial publicity in the case.

So, you have to exercise the strikes as a judgement call, and you try and remove those people that we think just can’t be fair, both sides do that. The state pretty obviously struck everybody who had any significant education level, higher education level. And Manitowoc County’s a pretty rural county — a lot of farming, dairy farming, and blue-collar workers and things of that nature. But there was, at the time, one employer, the nuclear power plant, that had four or five effective jurors in the overall panel. I don’t remember how many came in the panel from that we struck, but the state struck all of those people. We were looking for jurors who were intelligent, independent, had some significant education so that they could follow the science, and the state, obviously, was not. So, you know, both sides exercised the strikes that they had and that’s what we ended up with.

How many alternate jurors do you have at any given time?
Well, every trial is different. When there’s a lengthy trial, the judge tries to include additional alternates, because, you know, over four, five, six weeks, jurors can get sick, or family emergencies [might take place], things like that — or indications of bias can come out. There was one juror, for instance, who during the trial — before the trial, the jurors get a list of all of the potential witnesses that could be called by either side, and they’re supposed to disclose if they know that person, have any prior relationship, involvement with them but of course these are just on paper. They have the names, but they don’t have a face with the names. Well, during the trial, one of the jurors came forward after a witness had testified, a police officer from Manitowoc, and told the court that, “I recognize this guy, and in fact, I didn’t put his face with the name, but I sat on a civil, personal injury case, where he was the plaintiff and we awarded him tens of thousands of dollars in judgment.”

We moved to strike that juror, because of potential bias, and given her prior relationship with this officer, but the court refused. Then, again, at the end of the trial, we had had four alternates in panel. So it was either 16, or maybe only 15, total jurors sitting during the whole trial. 

And then when you get to the end, the judge is supposed to randomly pick from the hat which 12 are going to serve in the deliberations and the others drop off. So, again, that juror who came forward and knew somebody was, I believe, removed during that process [and was not on] the final jury. 

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