Dean Strang changed the way we think about criminal defense attorneys

The right question is whether he was proven guilty.

Do you think the way the public understands criminal law makes it difficult for them to understand that distinction?

I don’t think the problem lies, really, in a public misunderstanding of the criminal justice system. I think that it lies in an understandable conflation of truth-seeking as a global goal and the limits of, or function of, any criminal justice system.

If you start with a public that understandably has only a fairly fragile grasp of the principles of the criminal justice system—most people are probably operating at an eighth grade civics level—and you couple that with a citizen’s natural desire to feel certain that bad people are removed from society and that the streets are safe and crimes gets solved, those are all truth-seeking inclinations. And while it is the goal of the criminal justice system to seek the truth, it is also a reality that seeking the truth doesn’t guarantee you’ll find the truth, at least with any epistemological certainty. And so the reality of the criminal justice system is that we are often left with significant residual doubt and uncertainty about outcomes.

Do you think people also put too much stock in the belief that criminal lawyers know whether their clients are guilty or innocent?

Yes.

Why do you think that is?

Well, I think people probably have a cultural understanding of the lawyer-client privilege, and therefore assume that clients come in and bare their souls to a lawyer if they’re guilty, or are able absolutely to persuade a lawyer of their innocence if they’re innocent. And again, it’s a lack of recognition of the constant reality of background or residual uncertainty within which all actors in the criminal justice system operate, if they’re going to be honest about it.

So the reality is that, of course, most clients don’t bare their souls, or at least do that only in a very gradual, halting, and ambiguous way. And for most people who may be innocent, or are innocent, it’s very difficult to prove that.

You’ve spoken elsewhere about Making a Murderer providing an incomplete picture of Steven Avery’s trial. How long would it have to be to provide a complete picture?

Making a Murderer recorded a trial in real time, and allows the viewer to participate in segments of the trial as it unfolds. I don’t know any way to make that other than a fragmentary experience but to present the viewer the entirety of a trial. If the immersive purpose is to invite people to watch a trial beginning to end, then you would have to do that.

I don’t think that that was the immersive purpose of the filmmakers in Making a Murderer. I think, at least, that the immersive purpose was to immerse the viewers in the structure of a criminal trial, and the popular publicity or popular setting surrounding that trial, and to invite the viewer to look at more systemic issues that were there on display, very near and transparently below the surface. So: class, the experience of juveniles, the way police interrogate suspects, the effects of developmental delay or learning disabilities, the role of lawyers on both sides, the possible effects of underfunding indigent defense counsel, public pressure on the judiciary—especially elected judges—public pressure on the police and prosecution magnified by publicity, some of those issues.

My assumption is that viewing the trial itself would be a complete narrative, but maybe a trial only becomes a narrative once it’s been retroactively shaped and edited.

Trials themselves are not complete narratives. Evidence that might be interesting but ultimately doesn’t fit within the rules of evidence is excluded. Evidence that is admissible but ultimately not very helpful is allowed. And at the end of the trial, there are heavy social incentives and pressures to behave as if we have arrived at certainty.

The end of a trial often leaves considerable residual uncertainty, about which all participants in trials—the judge, lawyers on both sides, jurors—often are quite intellectually dishonest.

How so?

We seek, in our trials, a very binary set of decisions. First of all, it’s an adversarial process: me against you. Second, most of the significant questions to be answered are binary: guilty or not guilty; motion granted, motion denied; objection sustained, objection overruled; ultimately, on appeal, conviction affirmed, conviction reversed.

These are very binary decisions, and the participants, whether judge, lawyers, or jurors, feel a good deal of social and professional pressure to make a binary decision one way or the other, and therefore to act as if they are more certain than they may be.

Do you think our need for a sense of certainty impacts media coverage of crimes about which there is a scant amount of information, and makes it difficult to maintain the presumption of innocence?

Yes, I do. And I think that’s rooted in a couple of phenomena.

One, whatever the skepticism that Americans frequently express about their governments at a policy level, we often display a great deal of confidence in our governments at a functional level. In other words, we express a lot of skepticism about whether government is competent to administer healthcare, but we all like our Medicare and our Medicaid. Most of us, when we get stopped for speeding, believe (a) we were speeding when we got stopped, and (b) we have a high level of confidence that the police officer isn’t going to ask for a bribe, isn’t going to beat us up, isn’t going to rape us, isn’t going to otherwise engage in gross misbehavior. All of those things actually happen, but they’re so rare in this country that they make big news when they do happen.

I think most Americans feel a good deal of confidence that when the police arrest somebody, they probably got the right guy. And that, when a district attorney charges someone, he probably did what the district attorney says he did.

That’s a phenomenon that then translates very directly to a presumption of guilt on the greater part of the public, rather than the more abstract principle of a presumption of innocence.

It seems that becoming better citizens with regard to understanding criminal law means accepting uncertainty into our lives in an uncomfortable way.

Yes. And the second phenomenon I was going to describe is, you then also have a media who, whether through indolence or coziness, tends to accept a police or prosecution narrative very quickly.

So the police put out a press release, they’ve arrested so-and-so for thus-and-such a crime, [and] the media report that without much critical analysis, without much effort to seek out the truth on their own, or to pursue any investigation, or even, usually, to seek comment from the other side. So the media, quite reliably, tend to parrot the police or the prosecution narrative in the early days of a case.

We are not good with accepting the reality of uncertainty in the operation of our criminal justice system. I think that’s part of why DNA exonerations, over the last couple decades, have so shaken American faith in our courts and our prisons, because now the fact of wrongful convictions—of grievous mistakes—becomes undeniable, unless you’re willing to engage in counterfactual fantasies.

I think that’s a good start. But the public needs to look beyond the relatively thin sliver of cases in which science can provide certainty or near-certainty, and look at the fact that most convictions rest on very uncertain, contestable evidence—and always will.

What would you tell someone who watched Making a Murderer and wanted to know how to be a more responsible citizen, or even to take some sort of action, without being a legal professional?

Start with the power of the story you’ve been told. Stories are powerful to us. We remember them. They move us. Our brains are oriented around fashioning facts into a coherent story.

Start with that in a given case. Recognize, now, that about twenty million criminal cases are brought every year in this country. And then start to look for probable commonalities between a story that moves you, and the unknown stories of millions of other people who also are enmeshed in the criminal justice system.

We’re really rich with groups that are working on justice in this country. So whatever it is that specifically moves you, there are groups out there working on that issue, and they need your time, they need your involvement on social media, they need your money if you have it, and other forms of support.

And let’s not forget you need to vote! In most states, we elect judges. In every state, we elect sheriffs. In every state, we elect prosecutors. So people can and should pay more attention to those elections, and participate in them thoughtfully.

Are there aspects of the Avery case that you’ve looked at differently, having seen it depicted in Making a Murderer?

I wish I’d been a better lawyer, and I don’t mean that facetiously or as a matter of false modesty. The reality that you live with as a lawyer is that our lives are dynamic. We learn by experience. We get better over time. So it’s difficult to look back at your nine-years-younger self, and think about what you might do differently today, or what you might be able to do even better nine years from now. So that, I think, was difficult. And there was much about Brendan Dassey’s case that I had not seen before, and just didn’t know.

Has your life, or your practice, changed since Making a Murderer was released?

The aftermath of the film has been a great gift, in many respects, to me, in getting me engaged at a more systemic level, and in helping me to find my voice on broad issues and systemic failings.

What questions, aside from the questions about Steven Avery’s guilt or innocence, are you now asked a lot?

The other question I think I get asked most frequently is “What can I do? What can I do? I’m twenty, and I’m outraged and I’m concerned, but what can I do?” So I think about trying to give a better answer to that, because that’s a question you don’t want to biff with somebody who’s motivated, probably acting on ideals, often intelligent.

And beyond thinking about the answer, when you think about the pattern or the repetition of that question, you say to yourself, “Okay, people who are, say, eighteen to thirty-two are living pretty differently than I did when I was eighteen to thirty-two.” They have different tools. They’re often very engaged in social media. They have far-flung networks and connections through social media. They have access to sources of information that go well beyond the newspaper, the TV, the magazine that I had when I was eighteen years old, or word of mouth.

The process just of thinking through the repetition of questions, I think, has disabused me of the stereotype that millennials are disengaged. My experience in the last few months has been with very engaged, very idealistic, very serious young people—not apathetic, disinterested people who are simply lost in their iPhones, or are sort of obsessed with trifles all the time. That’s just not been my experience with younger people.

Has your experience with young people’s response to the documentary given you new perspective on the potential of that generation?

Yeah, a great deal of hope and encouragement. A great deal of hope and encouragement. I understand I’m only seeing one slice of that generation, but the emails I’ve gotten from thousands of people have given me a great deal of hope about the possibility of progress.

What have those emails been like?

Overwhelmingly kind. Overwhelmingly well-written, articulate, thoughtful, and generous in spirit, both to me personally and also to the Brendan Dasseys and Steven Averys and other disadvantaged people of the world.

Is there something about your generational consciousness that you think led you to the kind of law you practice?

No. If there is I can’t put my finger on it. For me, I think it was very, very individual, and not a generational thing. I had always been undersized, and both learned to talk my way out of fights pretty early and developed an affinity for the underdog, and wanted to stick up for the underdog.

This is my non-serious question: I’ve developed a theory in the last couple of months that Atticus Finch wasn’t a very good lawyer, because he’s not really playing to the jury that he has. He delivers a closing argument about how all men are created equal, and I don’t think his jury believed that, or was willing to believe that.

It’s a question that would specifically force you to decide which Atticus Finch you’re talking about now. Is it To Kill a Mockingbird or is it Go Set a Watchman?

I think that in many ways, Atticus as portrayed in To Kill a Mockingbird was not a great lawyer. As a technician, he left a lot to be desired, for the reason you’re saying. But that Atticus was a really great human being, and sought to mesh his profession with his being. In other words, he sought to live his ideals all day long, rather than living some professional life that was disconnected from his ideals, eight hours a day, and then living his ideals when he’s engaged in his hobbies or his leisure time or his family life. I think people who are successful in the real, meaningful sense of the word try to integrate their ideals with their work.

And that makes what Atticus did in To Kill a Mockingbird, I think, very complex. Did he advance Tom’s case in the most technically competent or savvy way he might have? Probably not. But did he challenge his fellow townspeople to see the world in a better way? To be better people? Did he offer them an example and hope they might take him up on the example—the example of someone who really was noble? Yeah, he did that. And they didn’t take him up on it, at least not in time to spare Tom.

So I think that’s a very hard question to answer, other than to say I agree with you that as a technician he left a lot to be desired. But the Atticus of To Kill a Mockingbird, as a human being, leaves very little to be desired. I mean, I still view him as an heroic figure.

And the Atticus of Go Set a Watchman?

If it’s the Atticus of Go Set a Watchman, now he has a lot of flaws as a lawyer and a lot of flaws as a human being. And maybe that just makes him more real, all the way around.

For most of us, our moments of displayed dignity are isolated bright spots—bright holes poking through a pretty dark blanket of bad behavior. That’s true of a lot of people, and it’s true to some extent of all of us. None of us are at our best all the time.

I feel like people find the law so confusing because we would like to believe that if you have a client whose guilt is not provable beyond a reasonable doubt, and if you’ve done your job well, you should be able to get a jury to acquit. I don’t think we like to believe that you can do the best possible job, given the situation you’re in, and still have a bad result.

It happens all the time. And you blame yourself for it, but, stepping back, one person can’t always control what twelve other people will do—and shouldn’t be able to control what twelve other people will do. All you can try to do is persuade with the skills you’re given, and within the rules that constrain you.

Sarah Marshall’s writing on scandal, horror, and American law has appeared in The Believer, The New Republic, and elsewhere. She also co-hosts The Feelings Club, a podcast about the secret life of emotions.