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Bar News - April 20, 2016

NH Attorney Featured in Hit Netflix Series


Former TV Reporter Discusses Show’s Lessons for Lawyers


Avery Uncut: NBC26's Avery case video archives, featuring Aaron Keller.

Featured as a TV news anchor in the hit Netflix documentary series Making a Murderer, Aaron Keller is now a New Hampshire attorney. He sat down with law clerk Jamie Myers to talk about the series and some of the legal questions it raises.

When Netflix launched its hit show Making a Murderer late last year, it sparked impassioned debate about the criminal justice system. It was almost as if binge-watching the 10-hour series conferred law degrees to millions. The conflagration of public sentiment, however, should not be a smoke screen to this fact: Making a Murderer also provides valuable lessons for attorneys.

Making a Murderer chronicles the trials of Steven Avery and his 16-year-old nephew Brendan Dassey for the murder of freelance photographer Teresa Halbach. Avery became famous in 2003 when newly available DNA techniques exonerated him after serving 18 years in prison for a 1985 rape conviction. Avery sued Manitowoc County, Wisconsin, for $36 million claiming wrongful conviction. With the civil suit looming, Manitowoc County officers arrested Avery in 2005 for Halbach’s murder. Based on a questionable confession, Dassey was later arrested and charged. Avery maintains that sheriff’s officers with clear conflicts of interest framed him in retaliation for his civil action.

Aaron Keller watched this saga unfold in real life as an evening television news anchor and reporter for NBC26 in Green Bay, Wisconsin. Now, more than a decade later, Keller is a New Hampshire attorney and a professor of English and communications at NHTI in Concord, which affords him a unique perspective to answer questions about the valuable lessons Making a Murderer provides for attorneys.

Jamie Myers: How did this case affect your decision to pursue law?

Aaron Keller: I took a heavy dose of legal courses as an undergraduate student. I enjoyed them. Covering the Avery case convinced me I was intellectually capable of understanding theories of law and explaining those theories to the public.

JM: How does your journalism background inform your view of the legal profession?

AK: When I covered these cases, I did my best to learn the law and explain the positions of the opposing parties as evenly and as fairly as possible, regardless of public sentiment. Now that I have degrees in journalism and law, I am dismayed by the deep divide between the public, the press, and attorneys. Too many attorneys distrust the press, too many journalists distrust attorneys, and too many citizens distrust both.

Making a Murderer should spur serious discussions surrounding how professional journalists and attorneys do their jobs and whether the public will continue to morally support the legitimacy of both the courts and the press. Many viewers of Making a Murderer came to distrust the rule of law because the outcomes of these cases conflicted with the public’s core sense of morality. Some of the issues go deeper than the guilt or innocence of Avery or Dassey. I hope attorneys will have meaningful discussions on these matters. Too much of the discussion surrounding these cases has focused on distractions, like my prematurely gray hair.

My experience as a journalist-turned-attorney has also forced me to assume the difficult role of defending both journalists and attorneys to more than 19 million worldwide viewers and critics. It is simultaneously an honor, a responsibility, and a burden to assume that role. I’ve received messages from at least four continents, had some of my ideas butchered by a few journalists I hoped I could trust, and struggled to focus public discussion on the issues that matter. This case monopolized my life a decade ago; its details are vexing enough to do so yet again. Now, as a newly-minted attorney, I admittedly lack the depth of experience most readers of Bar News enjoy. I’m sure they’ve spotted issues in the film that I’ve not yet had the time to discuss or which I am beginning the journey of understanding.

JM: What role did the media play in these cases?

AK: This case became explosive because the parties were familiar with the press. Avery was comfortable with the press because his 2003 exoneration attracted considerable attention. The victim’s brother, family spokesman Mike Halbach, was a video analyst. Teresa herself was a photographer, so she knew the power of images, and her family likely understood that through her. This meant an incredible and unprecedented level of access in the early hours of the case. Eventually, the prosecution and defense strategically used the coverage to their respective advantages, but it was impossible for any court order to “un-ring the bell” of the initial coverage. Avery used to call my station to conduct live telephone interviews on the nightly news from his jail cell.

JM: One part of the coverage that was particularly startling was Special Prosecutor Ken Kratz’s pre-trial press conferences. Now that you are an attorney, do you think he acted ethically?

AK: Kratz has received substantial criticism regarding his pre-trial press conferences. Of greatest concern is his press conference of March 2, 2006, just after Dassey’s arrest. That was four months after Halbach’s disappearance and Avery’s arrest, but about a year before the jury was selected.

Kratz repeated before a live television audience one possible – and heinous – version of the crime. He stitched the storyline together based on Dassey’s confession, which shortly thereafter was called into question.

Many observers were stunned at the degree of detail Kratz offered. He warned the audience to turn young children away from the television before he described, in narrative fashion, the alleged rape and murder of a young woman by both Avery and Dassey.

Critics have long argued that this particular press conference severely tainted the jury pool. It was broadcast on the eight largest television stations in the state (and likely on others). Clips were recycled on news broadcasts for months. Critics have also argued that the horrible details were not supported by corroborating physical evidence. Some of the most grisly parts of the narrative were ultimately never presented at trial. Dassey never testified against Avery.

Since Making a Murderer was released, some members of the jury have reportedly come forward to suggest that the jury pool had indeed been influenced by the press conference and that statements from the press conference likely played a role in the verdict.

At issue is how a loophole in the rules of professional conduct, when coupled with Wisconsin’s statutory criminal law procedures, allowed Kratz to engineer one possible version of the crime onto the public record and to then describe it in detail to a live television audience.

In almost all Wisconsin criminal cases, a county-level prosecutor commences his case by writing a “criminal complaint” document. The criminal complaint is a public record. Under Wisconsin law, the complaint must contain a “statement of the essential facts” of the offenses charged and may be based on “information and belief.” Some complaints are more factually detailed than others. The complaints against Avery and Dassey were substantially longer than average.

As in New Hampshire, Wisconsin’s professional conduct rules track the ABA Model Rules of Professional Conduct. Rule 3.6(a) contains general prohibitions on prejudicial pre-trial statements to the press. However, Rule 3.6(c)(2) provides an exception that allows attorneys to discuss with the press “information contained in a public record.”

In the Avery and Dassey cases, Kratz wrote a detailed criminal complaint based on Dassey’s confession. Once that alleged version of events was on the public record, Rule 3.6(c)(2)’s exception allowed Kratz to relate to the press, in detailed fashion, the rape and mutilation of the victim, defeating Rule 3.6(a).

The case raises serious questions surrounding the extent by which Rule 3.6(c)(2) may be used to nullify Rule 3.6(a). Though cases have dealt with the issue in the past, including Gansler v. Attorney Grievance Commission of Maryland (2003), it is relatively novel, and my attempts to find decisions limiting the “public record” exception have been unfruitful.

The better angels of our nature tell us that cases should be tried in courthouses, not on television. Those who agree can rightfully complain about Kratz’s conduct, but our professional conduct rules allowed Kratz to evade discipline on this particular issue.

JM: Len Kachinsky, Dassey’s first publically-appointed attorney, was also a lightning rod for criticism. In one of your station’s news stories, he stated, “We have a 16-year-old who, while morally and legally responsible, was heavily influenced by someone who can only be described as evil incarnate.” This implies Kashinsky believed Dassey was guilty, despite Dassey apparently maintaining his innocence. Is this defensible?

AK: One criticism of the film is that its style of storytelling allows viewers to lose track of time. Kachinsky wasn’t appointed to represent Dassey until six days after the press conference during which Kratz relayed the details of the complaint. Dassey didn’t recant his confession until well after Kachinsky gave that statement. But, looking back, was it a good decision to call Dassey “legally responsible?” No.

JM: After the court denied Dassey’s motion to suppress his first confession, Kachinsky directed his investigator to meet with Dassey. The investigator appeared to intentionally and coercively extract another confession from Dassey, and he succeeded. He then called Kashinsky, who directed the investigator to hand the confession over to detectives, who subsequently re-interrogated Dassey with Kashinsky absent, and extracted yet a third confession. How is this defensible? Do you think this was ineffective assistance of counsel?

AK: I’ve really struggled with this for a long time. I can only rationalize some of Kachinsky’s tactics.

It is hard for journalists to cover the decisions made between a defendant and his attorney. I recognized and respected the attorney-client privilege while still trying to give Kachinsky a fair opportunity to respond to Kratz.

From my limited perspective, here’s what happened: Kratz released the first confession and sullied the field six days before Kachinsky’s appointment. Kachinsky commenced his representation from a difficult position. We now know from the Dassey appellate decision that Kachinsky began seeking a plea deal. Attorney-client privilege makes it impossible to learn whether Dassey was amenable (or even capable of being amenable) to a plea. Perhaps he wasn’t; I don’t think we know or ever will know. Family members began pressuring Dassey, presumably to not testify against Avery. It was after all this that Dassey emphatically recanted and asked to dismiss Kachinsky.

Strategy is the job of the attorney, so it’s difficult to argue that Kachinsky’s attempt to seek a plea, after a publicized confession, amounts to constitutionally ineffective assistance. Objectively, I can’t blame Kachinsky for assuming that a publicized, admissible confession, a recantation, and subsequent trial might result in a harsher outcome than a plea deal.

Some information viewers have cited in demonizing Kachinsky became public only after I’d left Wisconsin. A lot was occurring behind the scenes, and volumes could be written about the problems surrounding this representation. I remember the trial judge rebuking Kachinsky by calling his actions “deficient performance,” and Kachinsky was decertified by the state public defender’s office. However, Dassey’s appellate court found that Kachinsky’s performance did not rise to the level of ineffective assistance. I generally agree with these characterizations, though I can understand the sense among viewers that Kachinsky should have faced additional punishment.

JM: Another major issue in the series was the two Manitwoc County Sheriff Department officers’ involvement in the search of Avery’s property after Halbach’s disappearance. The officers had recently been deposed as part of Avery’s civil action, and therefore had a clear conflict of interest. Despite this conflict and the Calumet County Sheriff Department’s assurance that no Manitwoc officers would be involved in the search, the evidence at trial indisputably showed these officers were involved on multiple days and were responsible for finding important evidence, including Halbach’s car key. How did you react to this news? Do you think Avery had or should have had legal recourse to challenge the search based on that conflict of interest?

AK: The law enforcement community outside Manitowoc County has generally agreed, at a minimum, that these two men should have been screened from the investigation process. However, the question for attorneys is more critical: in the name of fairness, should such testimony or evidence be excluded from trial as a matter of law?

Under the rules of professional conduct, attorneys with conflicts of interest are excluded from working on cases, and so are their law partners (unless a screening process occurs). Perhaps a similar statutory mechanism or rule of evidence should exist for law enforcement officers.

The issue might have a hook in the due process clauses of the Fifth and Fourteenth Amendments, as it is deeply rooted in our sense of fairness and justice. Criminal defendants already enjoy due process rights to impartial judges and disinterested prosecutors. Arguably, law enforcement officers are comparable. The Sixth Amendment concomitantly affords defendants an impartial jury.

Simply put, if I’m engaged in civil litigation with a police officer, I wouldn’t want that officer using his police powers to charge me with a crime simply to “get me out of the way.” I believe this issue transcends the Avery and Dassey cases, but the cases and the Making a Murderer series highlight the question of whether a local jury should be entrusted with judging these ethical matters. Kratz argued successfully at closing that an acquittal would be a statement by the jury that its hometown sheriff’s department was crooked. He might as well have been asking Wisconsinites to admit that the Green Bay Packers played lousy football.

JM: Speaking of alleged police misconduct, do you think the ethylenediaminetetraacetic acid (EDTA) evidence was fair? Has it ever satisfied the Daubert standard in other jurisdictions?

AK: Wisconsin did not, at the time, follow the Daubert standard for the admission of scientific evidence. The standard was rather wide open, leaving the jury to ponder the threshold validity of any science. Therefore, Kratz introduced an EDTA test which allegedly proved that the Avery blood discovered inside Halbach’s vehicle had not been planted from an old, preservative-filled vial. The defense unsuccessfully questioned the test. That same year, 2007, the Ninth Circuit upheld a trial court’s refusal to admit a similar EDTA test under Daubert.

JM: Final thoughts?

AK: At the college where I teach, this Maya Angelou quote is tacked to the wall where student writers come for help: “There is no greater agony than bearing an untold story inside you.” For me, Angelou is correct. The twists and turns of this case have haunted me for a decade, and for that reason I continue to write. For some, Angelou is incorrect. An agony greater than bearing an untold story is borne by those wrongfully convicted. Avery was that man. As to the Halbach murder, I refuse to opine whether Avery or Dassey are guilty or innocent. Either way, our justice system could have done better. Those who agree bear the responsibility of reforming it.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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