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Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer"
The shocking Netflix documentary Making a Murderer left millions of viewers wondering how an apparently innocent man could be wrongfully convicted - not just once, but twice. This book explains, in plain English, the numerous flaws in Wisconsin's criminal justice system that led to the wrongful convictions of Steven Avery and his mentally challenged nephew Brendan Dassey. Equally disturbing, it also reveals that similar flaws exist in other jurisdictions of the country.The author, himself a criminal defense attorney in Wisconsin, details the egregious procedures that resulted in the Avery and Dassey convictions. Besides the use by law enforcement of suggestive eyewitness-identification methods and interrogation tactics known to produce false confessions, defense lawyers had their hands tied by a truth-suppressing trial rule. Though they had evidence that someone other than Avery murdered Teresa Halbach, Wisconsin courts rarely permit consideration of such evidence. Perhaps most troubling, the burden of proof in this state is actually much lower than the constitutionally-mandated "beyond a reasonable doubt" standard.The author not only discusses the documentary, but he also quotes from and cites Avery's and Dassey's appellate court decisions, appellate court briefs, numerous trial court documents, other cases, law review articles, and scientific studies.This unsettling book will give you facts and insights beyond those presented in the documentary and leave you wondering whether the constitutional right to a fair trial is actually guaranteed where you live.
- GenresTrue CrimeNonfiction
213 pages, Paperback
Published April 4, 2017
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537 people want to read
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Displaying 1 - 24 of 24 reviews
July 19, 2017
This book is the latest I have read concerning this case...and it was more about the law in Wisconsin than the case itself...more of a case study of the law...but very good all the same...while I was watching the series I kept asking myself...how could they allow that???? this book answers most of these questions...but not in a good way...It shows how the laws that are put into our constitution to defend us can be warped by a system that is more interested in convictions than finding the right person...not saying this doesn't coincide ...probably more times than not...but when people are found guilty because they aren't allowed to present viable options...are allowed to bring in illegally obtained evidence because the judge felt it would have been found anyway...can disregard DNA evidence that exonerates a person while pushing for its use when it convicts...more and more...it disgusts me...I am not liberal ...not conservative...I want fairness for everyone...and when we have laws...we should follow them...not make them what you want at the time to get what you want...there are a few chapters that drag..but overall a very good book...and I plan on never getting arrested in Wisconsin...if they want you in prison..well...might as well plan it...
April 16, 2017
Ask any trial attorney and they'll likely tell you that the trial is the easiest part of a case. That's because all the investigation, research, and preparation is complete. Equally important, the issues to be presented have been narrowed as motions and hearings before trial shaped and settled often significant procedural and substantive legal questions. Add in the bench conferences and in chambers hearings that occur during trial and some of what may most affect a trial’s outcome occurs out of sight and hearing of the jury.
In pointing out that this occurred in the Steven Avery case, the subject of Netflix's popular Making a Murderer documentary series, Wisconsin criminal defense attorney Michael D. Cicchini examines various substantive and procedural laws, rules and court rulings that shaped the case long before the jury heard any testimony. While not part of the defense or appellate teams, his book, Convicting Avery: The Bizarre Laws and Broken System behind 'Making a Murderer' looks at the legal landscape of the Avery case. And while it necessarily is limited to Wisconsin law, where the trial occurred, its critique applies to almost all court systems.
Some of what Convicting Avery examines is already a subject of debate and discussion; other items have a much lower profile, if any. In the former category is the eyewitness identification that sent Avery to prison for 18 years for a rape DNA later established he didn't commit. At that trial, the victim pointed out Avery as the perpetrator. Yet the jury heard 16 witnesses who said he was nowhere near the crime. The book traces the law enforcement actions that contributed to his erroneous identification in court. Even the Wisconsin Supreme Court would later call eyewitness testimony "often hopelessly unreliable" and say erroneous eyewitness identification is "the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined."
Arguably more pertinent and much less known is the case law courts apply during a case. The examples in Convicting Avery have two different, yet often related, themes. One is the language used by statutes, rules and courts. Another is that once a jury reaches a decision, courts make it difficult to overturn a conviction.
A prime example of language issues is a word that permeates the law, "reasonable." Many criminal statutes consider whether a person’s actions were reasonable or unreasonable. Trial courts assess whether law enforcement’s actions were reasonable. Appellate courts often evaluate whether what a trial court did was reasonable or the reasonable effects of the actions. And the Wisconsin and federal constitutions ban only "unreasonable" searches and seizures.
Cicchini believes reasonable is the "most dreaded word" for criminal defense attorneys. "When the defense lawyer sees this word as part of a legal test or standard, he knows his client's ship is sunk," he writes. "The word reasonable is so vague and flexible that, when placed in even the most inept judicial hands, any law enforcement action can be justified after the fact." Avery saw the malleability of the word more than once.
When new DNA evidence was obtained after his rape conviction, Avery sought a new trial so a jury could hear that evidence. Exculpatory DNA results certainly appear to fulfill the requirement that it must be "reasonably probable" the new evidence would produce a different result. Yet in affirming the denial of Avery's motion, the Wisconsin Court of Appeals said reasonableness must be shown by "clear and convincing evidence," a legal standard considerably higher than "reasonable." And reasonableness played a major factor in his murder trial when the judge allowed items seized in the sixth search of Avery's home, a search that on its face seemed to violate the rules governing reasonable searches and seizures, to go into evidence.
Other court-made rules played roles in Avery's murder trial. Avery wanted to present a third-party defense; in other words, that some other person(s) killed Teresa Halbach. Yet to do so, he had to show the third party's motive, even though that is not an element of a murder charge, and their opportunity to commit the crime. Moreover, defendants are required to present evidence "to directly connect" the third person to the crime. Thus, while the state can convict someone on circumstantial evidence, the bar is much higher for a defendant who believes someone else committed the crime for which they are charged.
A similar situation can arise in the context of Wisconsin's preliminary hearings, the proceeding in which a judge determines if there is sufficient evidence to bind a defendant over for trial. Yet the prosecutor need not even show that its evidence meets the lesser preponderance of the evidence standard used in civil cases. Instead, the state need only show "probable cause," all that is needed to obtain a search warrant. Moreover, under Wisconsin case law, the truthfulness of witnesses at a preliminary hearing isn't relevant, only whether the evidence the state puts on shows its theory of the case is "plausible." That also means a defendant can’t call a witness at the hearing to contradict facts presented by a prosecution witness because such testimony goes to credibility, not plausibility.
Convicting Avery examines several other elements of procedural and substantive criminal law that impact trials behind the scenes, from allowing the introduction of junk science to manipulation of interrogations to the ethical obligations of both prosecutors and defense counsel. Yet Cicchini doesn't just take pot shots at the Avery case or Wisconsin's legal system. He suggests substantive reforms regarding the third-party defense and Miranda warnings. Still, Cicchini recognizes the difficulty of substantive reform, noting that it "rarely happens because it is the rational or right thing to do.". Rather,it tends to occur only when lawmakers "are motivated to ride the emotional wave of a single, high-profile injustice that has captured the public's attention."
While built around a particular case, the issues raised in Convicting Avery apply to the criminal justice system as a whole. Opposing arguments certainly exist but Cicchini makes clear he is viewing this from the perspective of a criminal defense attorney. Regardless of one's personal opinions, the book provides a considered insider's view of parts of the criminal justice system the public rarely sees.
(Originally posted at A Progressive on the Prairie.)
In pointing out that this occurred in the Steven Avery case, the subject of Netflix's popular Making a Murderer documentary series, Wisconsin criminal defense attorney Michael D. Cicchini examines various substantive and procedural laws, rules and court rulings that shaped the case long before the jury heard any testimony. While not part of the defense or appellate teams, his book, Convicting Avery: The Bizarre Laws and Broken System behind 'Making a Murderer' looks at the legal landscape of the Avery case. And while it necessarily is limited to Wisconsin law, where the trial occurred, its critique applies to almost all court systems.
Some of what Convicting Avery examines is already a subject of debate and discussion; other items have a much lower profile, if any. In the former category is the eyewitness identification that sent Avery to prison for 18 years for a rape DNA later established he didn't commit. At that trial, the victim pointed out Avery as the perpetrator. Yet the jury heard 16 witnesses who said he was nowhere near the crime. The book traces the law enforcement actions that contributed to his erroneous identification in court. Even the Wisconsin Supreme Court would later call eyewitness testimony "often hopelessly unreliable" and say erroneous eyewitness identification is "the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined."
Arguably more pertinent and much less known is the case law courts apply during a case. The examples in Convicting Avery have two different, yet often related, themes. One is the language used by statutes, rules and courts. Another is that once a jury reaches a decision, courts make it difficult to overturn a conviction.
A prime example of language issues is a word that permeates the law, "reasonable." Many criminal statutes consider whether a person’s actions were reasonable or unreasonable. Trial courts assess whether law enforcement’s actions were reasonable. Appellate courts often evaluate whether what a trial court did was reasonable or the reasonable effects of the actions. And the Wisconsin and federal constitutions ban only "unreasonable" searches and seizures.
Cicchini believes reasonable is the "most dreaded word" for criminal defense attorneys. "When the defense lawyer sees this word as part of a legal test or standard, he knows his client's ship is sunk," he writes. "The word reasonable is so vague and flexible that, when placed in even the most inept judicial hands, any law enforcement action can be justified after the fact." Avery saw the malleability of the word more than once.
When new DNA evidence was obtained after his rape conviction, Avery sought a new trial so a jury could hear that evidence. Exculpatory DNA results certainly appear to fulfill the requirement that it must be "reasonably probable" the new evidence would produce a different result. Yet in affirming the denial of Avery's motion, the Wisconsin Court of Appeals said reasonableness must be shown by "clear and convincing evidence," a legal standard considerably higher than "reasonable." And reasonableness played a major factor in his murder trial when the judge allowed items seized in the sixth search of Avery's home, a search that on its face seemed to violate the rules governing reasonable searches and seizures, to go into evidence.
Other court-made rules played roles in Avery's murder trial. Avery wanted to present a third-party defense; in other words, that some other person(s) killed Teresa Halbach. Yet to do so, he had to show the third party's motive, even though that is not an element of a murder charge, and their opportunity to commit the crime. Moreover, defendants are required to present evidence "to directly connect" the third person to the crime. Thus, while the state can convict someone on circumstantial evidence, the bar is much higher for a defendant who believes someone else committed the crime for which they are charged.
A similar situation can arise in the context of Wisconsin's preliminary hearings, the proceeding in which a judge determines if there is sufficient evidence to bind a defendant over for trial. Yet the prosecutor need not even show that its evidence meets the lesser preponderance of the evidence standard used in civil cases. Instead, the state need only show "probable cause," all that is needed to obtain a search warrant. Moreover, under Wisconsin case law, the truthfulness of witnesses at a preliminary hearing isn't relevant, only whether the evidence the state puts on shows its theory of the case is "plausible." That also means a defendant can’t call a witness at the hearing to contradict facts presented by a prosecution witness because such testimony goes to credibility, not plausibility.
Convicting Avery examines several other elements of procedural and substantive criminal law that impact trials behind the scenes, from allowing the introduction of junk science to manipulation of interrogations to the ethical obligations of both prosecutors and defense counsel. Yet Cicchini doesn't just take pot shots at the Avery case or Wisconsin's legal system. He suggests substantive reforms regarding the third-party defense and Miranda warnings. Still, Cicchini recognizes the difficulty of substantive reform, noting that it "rarely happens because it is the rational or right thing to do.". Rather,it tends to occur only when lawmakers "are motivated to ride the emotional wave of a single, high-profile injustice that has captured the public's attention."
While built around a particular case, the issues raised in Convicting Avery apply to the criminal justice system as a whole. Opposing arguments certainly exist but Cicchini makes clear he is viewing this from the perspective of a criminal defense attorney. Regardless of one's personal opinions, the book provides a considered insider's view of parts of the criminal justice system the public rarely sees.
(Originally posted at A Progressive on the Prairie.)
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August 6, 2017Although the title included the name Avery and the words "Making a Murderer" this book is focused on the subtitle: The Bizarre Laws and Broken System (of Wisconsin judicial system) as described by the author and criminal defense attorney, Michael D. Cicchini, JD.
At one point, late in the book, Cicchini asks the reader to determine, if they were about to go on trial, if they would ask for a change of venue due to the current laws of Wisconsin. My takeaway from reading the book is that the interpretation of the current law is "guilty until proven innocent."
I no longer live in Manitowoc County, Wisconsin. But it still scares me to know that an innocent person could be convicted of a crime because the interpretation of the law, as written, favors the prosecuting parties in a case to what could be considered a criminal extent.
If nothing else, this book is a definite eye-opener and conversation-starter.
At one point, late in the book, Cicchini asks the reader to determine, if they were about to go on trial, if they would ask for a change of venue due to the current laws of Wisconsin. My takeaway from reading the book is that the interpretation of the current law is "guilty until proven innocent."
I no longer live in Manitowoc County, Wisconsin. But it still scares me to know that an innocent person could be convicted of a crime because the interpretation of the law, as written, favors the prosecuting parties in a case to what could be considered a criminal extent.
If nothing else, this book is a definite eye-opener and conversation-starter.
December 28, 2018
If you haven't watched the Original Netflix Documentary of Making a Murderer, I highly suggest watching it. And if you find the show interesting and want to know more, regardless of your opinion on whether Steven Avery is guilty or not, I advise reading this book. It does go over some of the basics that were touched on in the documentary, but it also mentions things that were left out that could end up having a huge impact on your feelings towards Avery's conviction. It goes into well explained and easily understood detail on how the laws work against the innocent and just how corrupt Wisconsin's court system is. This was a short, easy, and educational read for me and I enjoyed it.
July 5, 2024
What the heck!? This whole situation is messed up. This book does promote his innocence and I do plan to read the other book promoting his guilt. But dude. This guy was framed. Guess thats what happens when you sue the police in Wisconsin!
June 28, 2017
The most interesting lesson from this book is the most valuable; even when you are completely innocent, the only word that should ever come out of your to mouth authorities is, "Lawyer".
February 4, 2017
Last year, I spent New Year's Day binge watching "Making A Murderer", which in case you've been living under a rock is a Netflix documentary that detailed the conviction, exoneration, and second conviction of Steven Avery. I then spent the next 12 months asking absolutely everyone I talked to if they had watched it, and pestering them about their position on his conviction. So, I was thrilled when Prometheus publishing sent me an advanced copy of Convicting Avery, a book out in April that examined the flawed legal system of Minnesota that perpetuated Avery's two bogus convictions.
Just like the rest of the country, I don't know for sure whether Steven Avery killed Theresa Halbach, but I do know that his attorneys presented enough arguments to the jury to have given them a reasonable doubt that he was the killer. And that reasonable doubt should have resulted in a verdict of not guilty. It didn't. I think a reader would best enjoy this book after having watched the Netflix documentary. I looked at this as a more in depth companion to the documentary that delved into some of the legal procedures impacting Avery's trial that might not be understood as well without having watched the legal proceeding unfold on screen.
Written by an attorney, this book discussed the legal procedures behind each piece of evidence that was admitted against Avery. By examining things such as witness identifications, searches, and expert testimony, the author explained how the unjustified conviction happened. One of his propositions that made the most impact on me was his belief that people tend to think that the police and detectives are searching for the truth so they are eager to provide information to assist them find it during interrogations without an attorney present. Cicchini stated that the government employees actually don't care about the truth because they are too consumed with their conviction rates. In that vein, the author opined that authorities quickly narrow in on a suspect and make the facts fit that person regardless of the suspect's true innocence.
The author's writing style was a little academic. Packed with footnotes and quotes, this reminded me of a law review article. The content and the manner in which he outlined his propositions took me right back to my first year of law school when I took Criminal Law. But, to his credit, legal procedures and rules are dense, and he described them in a way that would allow anyone to easily understand the concepts. The way he described some of the laws impacting Avery's trial really made the legal system appear broken and just bizarre. Regardless of your position on Avery's guilt, the content would make anyone suspicious of our legal system.
I never saw myself as someone who wanted to defend a criminal, but my passion for the rights afforded to individuals by the Constitutional always made me eager to oppose the government simply to ensure the laws I take for granted are followed. Of all the author's topics, I particularly liked his discussion of the Fourth Amendment and how the police's search of Avery's trailer absolutely violated the black letter of the law governing how, what, and the number of times a warrant can be used to search a person's home. While I don't like the idea of a guilty person going free, I like the idea of the government searching my home without any restraints even less.
This book prompted me to engage in yet another round of discussions about Avery and the injustice of the legal system. The author made dull laws fascinating to discuss, and I would recommend it to everyone who thinks they could never be wrongfully accused of a crime and then convicted of it.
Please read more of my reviews on my blog: http://fastpageturner.wordpress.com
or follow me on twitter at @dana_heyde
Just like the rest of the country, I don't know for sure whether Steven Avery killed Theresa Halbach, but I do know that his attorneys presented enough arguments to the jury to have given them a reasonable doubt that he was the killer. And that reasonable doubt should have resulted in a verdict of not guilty. It didn't. I think a reader would best enjoy this book after having watched the Netflix documentary. I looked at this as a more in depth companion to the documentary that delved into some of the legal procedures impacting Avery's trial that might not be understood as well without having watched the legal proceeding unfold on screen.
Written by an attorney, this book discussed the legal procedures behind each piece of evidence that was admitted against Avery. By examining things such as witness identifications, searches, and expert testimony, the author explained how the unjustified conviction happened. One of his propositions that made the most impact on me was his belief that people tend to think that the police and detectives are searching for the truth so they are eager to provide information to assist them find it during interrogations without an attorney present. Cicchini stated that the government employees actually don't care about the truth because they are too consumed with their conviction rates. In that vein, the author opined that authorities quickly narrow in on a suspect and make the facts fit that person regardless of the suspect's true innocence.
The author's writing style was a little academic. Packed with footnotes and quotes, this reminded me of a law review article. The content and the manner in which he outlined his propositions took me right back to my first year of law school when I took Criminal Law. But, to his credit, legal procedures and rules are dense, and he described them in a way that would allow anyone to easily understand the concepts. The way he described some of the laws impacting Avery's trial really made the legal system appear broken and just bizarre. Regardless of your position on Avery's guilt, the content would make anyone suspicious of our legal system.
I never saw myself as someone who wanted to defend a criminal, but my passion for the rights afforded to individuals by the Constitutional always made me eager to oppose the government simply to ensure the laws I take for granted are followed. Of all the author's topics, I particularly liked his discussion of the Fourth Amendment and how the police's search of Avery's trailer absolutely violated the black letter of the law governing how, what, and the number of times a warrant can be used to search a person's home. While I don't like the idea of a guilty person going free, I like the idea of the government searching my home without any restraints even less.
This book prompted me to engage in yet another round of discussions about Avery and the injustice of the legal system. The author made dull laws fascinating to discuss, and I would recommend it to everyone who thinks they could never be wrongfully accused of a crime and then convicted of it.
Please read more of my reviews on my blog: http://fastpageturner.wordpress.com
or follow me on twitter at @dana_heyde
March 9, 2023
While this book is wordy (even though it's only 177 pages), it really makes you think. I knew Avery was innocent before reading the book, but this book just made me angry. I will never live in the state of Wisconsin, and honestly, I'm not sure why anyone would. The "system" took both Avery and Dassey freedom away and literally made the entire case up. The only thing truthful is that Theresa was murdered. The people of Wisconsin should be worried because there is a murderer in your state who got away with killing Theresa because they just didn't like Steven Avery.
May 21, 2021
Even though I have not watched the show, Making a Murderer, I decided to read this book about the case to get an overview of the show. The story told in the book has now made me eager to watch the documentary. The injustice documented in the book is unbelievable. The author has done a good job of outlining the injustices in Avery's case as well as the injustices in the Wisconsin Court System. Highly recommend this book.
November 14, 2018
Very different from what I was expecting. This book sheds a lot of light on some of the sadly prehistoric laws upheld in Wisconsin and explains their effects on the Avery and Dassey cases.
This book is not written as a true crime book, if that’s what you are looking for, but enlightens us to the very serious need of legal reform (especially in Wisconsin)
This book is not written as a true crime book, if that’s what you are looking for, but enlightens us to the very serious need of legal reform (especially in Wisconsin)
October 10, 2022
Well written background and legal reasoning on the cases behind the headlines of the show "Making a Murderer." I enjoyed the information presented, and was as usual aggravated at the enormous failings of the legal system and the law enforcement members who contribute to the downfall of what is a laughing-stock and a travesty of a justice system.
August 4, 2017
Meh.
If you saw the "documentary", than you've already read this book. It's like Law 101 and has a pretty obvious bias. Just go watch Making a Murderer again, you'll get to enjoy those sweet, sweet Sconnie accents.
If you saw the "documentary", than you've already read this book. It's like Law 101 and has a pretty obvious bias. Just go watch Making a Murderer again, you'll get to enjoy those sweet, sweet Sconnie accents.
July 26, 2018
Legal Mishmash
This is not a book about Steven Avery. It's the author using Avery's name to get attention so he can get up on a soapbox about the legal system as he sees it. Waste of time.
This is not a book about Steven Avery. It's the author using Avery's name to get attention so he can get up on a soapbox about the legal system as he sees it. Waste of time.
February 6, 2026
Legal Mishmash
This is not a book about Steven Avery. It's the author using Avery's name to get attention so he can get up on a soapbox about the legal system as he sees it. Waste of time.
This is not a book about Steven Avery. It's the author using Avery's name to get attention so he can get up on a soapbox about the legal system as he sees it. Waste of time.
October 11, 2018
Very informative. If you've done any research into the case yourself, you might want to skip this book. But good for what it was.
September 13, 2019
Interesting read. Learned more about Wisconsin law and how bad it is. One day the truth will come out...and I can't wait for that day.
October 22, 2019
Wow I did not realize how f’ed up Wisconsin’s laws are...
April 7, 2021
Legit must read if you were enthralled with the Netflix seasons to the point of binge watching. Written in language that anyone not adept at law could understand.
March 7, 2023
This book was a little more technical legal aspects, which was more than I expected. It was still interesting and it's been awhile since I've watched the series so it was a good refresher.
August 13, 2023
Interesting. A couple reviews on the back cover compare it to a thriller, though, and I don't really feel like that represents the book very well.
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January 12, 2017If you have not seen Making a Murderer or familiarized yourself with the Avery case from other sources, you would probably not get much from this book. It offers no detailed narrative outlining the particulars, but dissects the investigative and legal proceedings. It’s basically just the author’s legal commentary on the documentary itself and his plea for reform of the system. As a criminal defense lawyer himself, Cicchini eviscerates legal standards in the state in which he practices and which convicted Avery (Wisconsin). There’s a lot of legalese used to justify why he thinks the system failed Avery and his own interpretation on how things should have been addressed. Interesting from a legal standpoint, but not the most captivating book I’ve ever read.
I received a complimentary copy of this book from the publisher.
I received a complimentary copy of this book from the publisher.
April 7, 2017
Wisconsin Justice
An excellent and carefully reasoned account focused on the Wisconsin laws that make it more likely the innocent are convicted. From jury instructions that water down the reasonable doubt standard in jury instructions to elimination of the option to use a "wrong man" defense I was shocked that state laws to take away rights we assume apply across the U.S. Full footnotes.
An excellent and carefully reasoned account focused on the Wisconsin laws that make it more likely the innocent are convicted. From jury instructions that water down the reasonable doubt standard in jury instructions to elimination of the option to use a "wrong man" defense I was shocked that state laws to take away rights we assume apply across the U.S. Full footnotes.
April 30, 2017
Decent read, a little dry because of the highly legalistic content. The authr tries to sprinkle in some casual language to make the book accessible or fun. Some interesting backstory if you liked Making A Murderer, but this is much much more about the systemic flaws of the criminal justice system rather than Steven Avery's backstory.
July 11, 2017
The author makes a good point: stay away from WI because their judicial system is flawed . . . but he alludes to the TV Netflix program Making of a Murderer too many times.
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