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Searching for truth in the burden of proof

“Making a Murderer,” the nationally acclaimed Netflix original series, ended recently. There is talk of a second season. The series, a 10-part documentary written and directed by Laura Ricciardi and Moira Demos, explored the criminal case of defendant Steven Avery in Manitowoc County, Wis.

Avery was previously convicted and sentenced to serve 18 years in prison for sexual assault and attempted murder; he was exonerated of those crimes in 2003. Shortly after his release from prison, in 2005, he was again arrested, this time in connection with the murder of Teresa Halbach, a local photographer. He was convicted in 2007.

The series also covered the prosecution of Avery’s then high school-age nephew, Brendan Dassey, who was also charged and convicted in the murder of Halbach. The series was filmed over the course of 10 years and covered the investigation, arrests, prosecution, conviction and many appeals that followed.

As a former prosecutor, I have found that convicting people of the most serious of offenses is routine. I prosecuted sex crimes. During jury selection, I would explain the law to potential jurors – that the burden of proof required to convict is not one of absolute certainty; that doubts that are speculative in nature must be put aside; that you cannot consider the possibility of penalty or punishment; that if you accept the testimony of even a single witness as true, you must convict. The judge would echo these instructions.

Once the decision to prosecute was made, it was my duty to select juries and present evidence provided by law enforcement officials in a manner that produced a guilty verdict. The system is designed for prosecutors to perform a devastating function with cunning vigor and to proceed with zero remorse or pity. Law enforcement works with evidence and testimony.

Shattered families, guilt to an absolute certainty and sobbing relatives are not part of the equation for a prosecutor. Those concerns are all silenced; that kind of evidence is suppressed.

“Making a Murderer” brought all of those concerns front and center.

I sent men off to serve 45-year sentences on the word of a single witness. Often times, that single witness was a young child or an intoxicated female or a convicted criminal himself. The law requires proof beyond a reasonable doubt, not proof to an absolute certainty.

Often, the “star witnesses” are less likable than the defendants. Witnesses come from all walks of life: crack addicts, victims with mental impairments and illnesses, chronic inebriates, people with other agendas and motive to lie.

Prosecutors often sell rickety facts as sturdy truths. They clean those facts free from doubt and fight hard to keep out victims’ prior psychiatric histories, false reports of rape, criminal convictions and other suspect evidence.

Often, judges agree to the motions and suppress the evidence, knowing that it would raise questions that would result in acquittal. As the gatekeepers of the evidence, judges perform the function of keeping facts that may be interesting but otherwise irrelevant outside the purview of the jury. They also keep out relevant facts that may be overly prejudicial.

Unfortunately, judges and attorneys never really know the true facts. How can they? They aren’t witnesses to the crimes alleged. After sorting through hours of inconsistent testimony, photographs, physical evidence that was collected and tested, evidence that was collected and not tested, witnesses who gave statements and witnesses who were never interviewed – only more questions are raised.

I offer that if one were to ever look closely at any criminal matter – absent surveillance video capturing the incident with absolute clarity and an uninfluenced confession from the defendant – answers are never quite so clear. Questions are always raised. How many questions are required to meet the burden of doubt that is reasonable? The answer to that question depends on the jury that attorneys select.

At the conclusion of every criminal trial, the judge will read the law to the jury. In those instructions, the judge will inform jurors that “the government must prove every element of the crime charged beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubts or doubts based purely on speculation are not reasonable doubts. A reasonable doubt is a doubt based on reason and common sense. It may arise from the evidence, the lack of evidence, or the nature of the evidence. Proof beyond a reasonable doubt means proof that is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not convinced, say so by returning a not guilty verdict.”

These instructions will vary ever so slightly depending on jurisdiction, but the ideas remain the same. The concept is clear. A defendant can’t prove his innocence. Proving a non-occurrence is a logical impossibility. For this reason, the burden of proof is always on the government. This does not shift.

Unfortunately, the standard to take one’s liberty is eroded by the trust people put into others in their own important affairs. We trust that bridges won’t collapse as we drive across; that building construction is sound; that our vehicles are safe; and that people don’t lie absent a reason to lie. At the outset of every trial, jurors are expected to presume that the person seated in the defendant’s seat is innocent while prosecutors deliver blow after blow to the defendant’s innocence. Why is the defendant there if he didn’t do it? Jurors must be plagued by internal dialogues searching for everyone’s motive to lie – the defendant, of course, having the greatest motive of all.

The decision the jurors make, regarding guilt, must be one without consideration of penalty or punishment – an impossible task for most.

Ultimately, the series raised many questions. What does it take to send someone to jail? How much evidence is enough evidence to convict? And, the most concerning of all: What if I get accused of a crime that I didn’t commit – do I have to prove my innocence?

The ultimate question rests with the uncomfortable soul-searching conclusion: Would you rather let a guilty man go free or an innocent man go to jail? The absence of certainty leaves room for error. The criminal justice system has plenty of room.

“Making a Murderer” reached no resolution. It did, however, put things in perspective.

Florina Altshiler, Esq., is managing attorney at Russo & Toner LLP in Buffalo.