Steven Avery, the subject of the Netflix documentary Making a Murderer, filed a motion to overturn his conviction on Monday. On Thursday, Rolling Stone spoke with Jerry Buting, one half of the legal team that defended Avery in the trial chronicled by the series.
We asked Buting if he thought the new appeal stood a chance in court, whether he would consider reuniting with his old partner Dean Strang, and what to make of the fact that Avery’s ex-fiancée, Jodi Stachowski, has turned against him.
I understand that Steven Avery filed a new appeal on Monday. Have you had a chance to read it?
Just briefly. Understand that that is what’s called pro-se appeal — that is not an appeal filed by any lawyer.
If you look at it, it’s a very rudimentary typed, type of format. And what happens is — you know, Mr. Avery has no legal training of his own — what happens in many of these cases is there is what you call “jailhouse lawyers,” other inmates who have been in for a long time and some of them have higher degrees of education, some of them don’t. They offer their services to other inmates and try and help people file motions like this. It’s very difficult to even follow the train of thought in that particular motion, the pro-se motion that was filed in Steven Avery’s case. So it’s clear to me that this is not filed by any kind of lawyer, nor is any lawyer’s signature on it.
So, where that’s going, I don’t know. At some point, he needs a more thorough examination by a lawyer to present the kind of factual, legal arguments that are necessary to get a due trial.
Very, very, very few pro-se motions ever go anywhere.
Will you and Dean represent him again? Are you two talking about it?
I don’t know. There’s an attorney who has been speaking with him, and did a press release saying that she was going to be taking over the case. I have not spoken to her, nor him, so I don’t know if that’s really the case, and if that will continue to be the case. We will try, and we’ve been sort of informal advisors. We stepped back during initial direct appeal so that there could be a set of fresh eyes to look at the evidence, to look at things we did, see if we made mistakes that might have been serious enough to jeopardize his right to effective assistance of counsel. That’s typically what happens — the trial attorney is not usually the same attorney who then does the direct appeal. So we stepped back from it and let these other attorneys, the public defender attorneys, do a direct appeal. But then, once his constitutional right to have free counsel appointed ended, they did not pursue it any further. They didn’t do any federal appeals. So we’ve been sort of acting as informal advisors to him and trying to gather, with this sort of clearinghouse, all these tips that we’re getting. What our exact role will be in the future, it’s not clear at this point.
Do you believe he still has legal options?
I think so. It becomes more difficult the longer you go in the appellate process. That’s one of the things that I’m hoping people will learn from this documentary, although there’s not a whole lot of coverage of that until you get to the very last episode.
People often think, Well, you know, if the jury got it wrong, that somehow that will be fixed on the appeal. In fact, our appellate system and criminal justice system is really designed not to get at truth or justice in a case, really it’s designed to perpetuate a conviction. The finality of a judgment in 98% of cases — very few cases ever get reversed on appeals. It’s very difficult. There are a few exceptions in the interest of justice, but a lot of times it’s hard to do that. Once you get past what’s called a direct appeal, which will be your appeal in the court of appeals and the state supreme court, if you haven’t succeeded by that point then you have a harder row to hoe, but it’s not impossible.
I won a case where a guy would have been incarcerated for 29 years before we finally got him out on newly discovered evidence, which is one of those issues that you can raise to try and show that an individual needs a new trial and deserves a new trial even though they lost the direct appeal. I’m still hopeful that that approach will work in Steven Avery’s case.
I know some people have changed their minds about Steven Avery’s innocence since the documentary was filmed. Jodi, his ex-fiancée, has recently come out and said she is convinced that he is guilty. Do you remain convinced of his innocence?
I do. Realize that there was a fair amount of coverage with Jodi [in the documentary]. She was getting a lot of pressure, even while the trial was going on, to try and turn her away from Steven Avery. It’s many years, who knows what kind of pressure and influences have been exerted against her to try and make express that kind of opinion. Bottom line is that when things were contemporaneous, happening back during that time, she did not have that opinion. She was very supportive of him. So, why is she changing her opinion? I don’t know at this point.
I think that the documentary showed that she was not going to be a reliable witness. She was not called at trial in part because of that — because she had been arrested three times by the police and interviewed to try and get her to change her story and she never did. Of course, she was in jail at the time on her own drunk driving case. So she wasn’t a direct witness, although she did talk to him on the phone twice on that same night and noted nothing out of the ordinary, like [for instance that], he somehow stopped in the middle of a rape, murder, dismemberment, burning of a body, and came in and had two 15-minute phone calls with her and acted perfectly normal.
Is there any reason why Steven didn’t testify?
I can’t discuss attorney-client decisions and communications, so I can’t answer that directly. All I can say is that in every case it’s always a difficult decision whether or not a defendant should testify. There’s pros and cons either way. Sometimes people don’t testify because they’re not educated, articulate, good witnesses. They’re not like police officers who are professional witnesses, who testify all the time, and go to school to learn how to be witness.
Sometimes people don’t testify for a whole lot of other reasons, including when a defendant testifies, sometimes what happens is the jury has a tendency to sort of weigh the defendant’s testimony against the state’s case and say ‘Which is more believable or plausible?’ and base their verdict on that when, in fact, the law says you’re not supposed to weigh the defense against the prosecution. The prosecution has all of the burden — beyond the reasonable doubt — and you’re supposed to see whether the state has proven their case to that very high degree of certainty. When the defendant testifies, sometimes that makes it harder for the jurors to do that. But otherwise it’s sort of an artificial burden. Most people don’t make decisions like that in life, you know? Usually you hear both sides, you know, you got two kids. One says ‘He started the argument,’ the other says, ‘No, she started it.’ You listen to both, and then you make up your own mind. That’s not the way our system is designed to be so there’s always a risk when the defendant testifies.
On the other hand, if a defendant doesn’t get to testify, people are like, ‘Well, why not? What does he have to hide?’ The bottom line is that they have a constitutional right not to testify. It’s the state’s burden to prove the case without using a defendant, and that goes back to the founding of our republic. And the jury is instructed in that regard, that they are not supposed to hold that against them.
So, in this case, I can’t specifically answer except to say that, in any criminal case, it’s sort of a Catch-22: You’re damned if you do, and you’re damned if you don’t, and you just have to take each case as you see it.