Clemency Questions Raised Following “Making a Murderer”

The mind-bending twists and turns of the American criminal justice system as experienced by a Wisconsin man named Steven Avery were detailed in a recently-released Netflix documentary series, “Making a Murderer.” prison5

An innocent man locked up for 18 years for a rape he did not commit, he sued the county after he was exonerated and released, with the aid of DNA evidence. But while his civil lawsuit was pending, he was again accused of a gravely serious crime: Rape and murder of a young female photographer in 2005. He was ultimately convicted and is slated to be imprisoned until 2048.

Although Avery steadfastly maintained his innocence for both crimes, hoping the documentary might help to exonerate him, filmmakers say that was never the goal. They take no formal position on his guilt or innocence, and say they had wanted to shed light on the experiences of an accused in the American criminal justice system. Numerous questions were raised by the documentary about the way in which the investigation and prosecution was handled. 

The series has been incredibly popular since its release, and has prompted some 430,000 people to sign petitions online, asking President Barack Obama to extend a pardon to Mr. Avery. At the very least, many say, he is owed a new trial.

Many point to the fact that after the documentary aired, one of the jurors who decided Avery’s fate at the second trial came forward to say there was coercion and possible vote-trading and that he believed Avery was in fact innocent.

Unfortunately for Avery, and others who may be similarly positioned, the chances of a pardon are slim, as our Miami criminal defense lawyers know too well. Aggressive, competent defense at the outset is always the best chance for a positive outcome.

First of all, Obama does not have the authority to pardon Avery because Avery was convicted in a state court. The U.S. President only has the power to pardon prisoners convicted in U.S. District Courts and other federal courts. It doesn’t matter how many signatures the petition received.

The chief executive of the state is the governor, and that’s who would have the power to issue a pardon – and those powers are pretty broad. However, the current Gov. Scott Walker has issued exactly zero pardons since he’s been in office and publicly vowed “never” to pardon Avery, saying such decisions fall squarely on the shoulders of the courts.

There is potentially another way: A conviction of a crime could be impeached, but it would have to be based on new evidence that is:

  • Competent;
  • Shows substantive grounds sufficient to overturn the verdict;
  • Show resulting prejudice.

With regard to the juror coming forward to say there was coercion at trial, the problem is that under Wisconsin state law, jurors are barred from testifying about the deliberation process, except where some extraneous prejudicial information infiltrated juror attention or there was outside improper influence on one or more jurors. Absent these factors, a juror witness is deemed incompetent to testify about what happened in deliberations.

Avery probably has a better chance of succeeding by filing an appeal in the case with whatever new evidence is available. Although the state supreme court has affirmed his conviction, he may be able to reopen the doors with presentation of new, convincing evidence.

The Midwest Innocence Project is reportedly teaming up with a new Chicago-based legal team to help him formulate a legal strategy. His new lawyer says she is “confident” Avery could be set free.

Contact the Miami criminal defense lawyers at Jacobs Keeley at (305) 358-7991 for a confidential consultation on your pending criminal matter.

Additional Resources:

‘Making a Murderer’ leads to calls for clemency, Jan. 6, 2016, By Bill Keveney, USA Today

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