EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, December 23, 2015

Steven Avery of "Making a Murderer" & the Special Responsibilities of a Prosecutor

Last week, the Netflix documentary series "Making a Murderer" was released to a rapturous response. The series, created by Laura Ricciardi and Moira Demos, follows the trials and tribulations of Steven Avery, a Wisconsin man who...well, I won't spoil anything for readers who haven't watched the series. Indeed, I haven't even watched the series yet because I don't have a Netflix subscription.

As a result, this post is not about Steven Avery; it's about the ethical rule that was created as a result of his case and other similar cases.

As noted by Michael C. Griesbach in Why Avery Matters, 84-MAR Wis. Law. 6 (2011):

In response to a recent spate of high-profile [cases], including Steven Avery's, the American Bar Association amended its Model Rules of Professional Conduct to include a section entitled, "Special Responsibilities of a Prosecutor."

In full, Model Rule of Professional Conduct 3.8 reads as follows:

Rule 3.8 Special Responsibilities Of A Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

In theory, Rule 3.8 sounds great, and it might lead many listeners of Undisclosed to wonder why there was never any disciplinary action brought against the prosecutors in the Adnan Syed case, particularly for violations of subsection (d), which deals with Brady violations.

Well, as T. Owen Farist noted in Municipal Liability? Not So Fast: What Connick v. Thompson Means For Future Prosecutorial Misconduct, 63 Mercer L. Rev. 1113, 1125-26 (2012),

While courts may frequently consider violations under Brady, there is rarely any action taken against violations of...Model Rule [3.8]. This lack of enforcement results in Rule 3.8(d) being practically ineffective. Therefore, the functional consequence following Connick is that there will be "little to hold prosecutors accountable for their conduct" In reality, however, these sanctions might have always been all that was on the line for prosecutors, no matter the outcome of Connick.

The Connick case mentioned in the article is the Supreme Court's opinion in Connick v. Thompson, which I referenced on the podcast. It's the opinion that held that "[a] district attorney's office cannot be held liable for failing to train its prosecutors when the plaintiff proves only a single violation that has allegedly arisen from the inadequate training."

The result is that Rule 3.8 is an aspirational rule more than a practical rule. The reality is that prosecutors are rarely disciplined for misconduct, and criminal defendants are rarely entitled to relief, even in the face of extreme misconduct by the State officials prosecuting them.



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R 3.8 needs to stop being aspirational and start being enforced with serious sanctions and punishments to stop the endemic violations of justice being perpetrated by prosecutors who currently have nothing to fear from their shameful conduct.

Posted by: Ella | Dec 23, 2015 4:35:16 AM

The "Making a Murderer" documentary series is well worth a subscription (or free trial) to Netflix. As a criminal appellate defense attorney, I found it very well produced with substantial coverage of all aspects of the case including motions hearings, prosecutors' media campaign, discussions with the attorneys involved, etc. I don't want to spoil anything, so I won't say much more than to note that it should generate good discussion for any criminal practitioner.

Posted by: Brian | Dec 23, 2015 5:42:07 AM

As a prosecutor, here is my perspective. Our Constitution, our laws, our rights when we are charged with crimes, all of these are only as good as the vulnerable human being who is responsible for interpreting them. And there are very few government functions that are more heavily dependent on the inner goodness of a prosecutor, that wield the power to destroy lives and families. In addition, wrongful convictions can take decades to resolve. By the time a trial prosecutor is found to be a culprit that created a bad result, that prosecutor is very likely be a sitting judge somewhere, or a politician, or retired.

These are reasons why it is so difficult to draft laws or ethical codes that actually make a difference, in light of the horrible wrongful conviction stories we know about. At its core, our function as prosecutors must assume that we act ethically. I have no idea what rules could reduce that dependence. In the meantime, I can only assure you that the vast majority of prosecutors are like myself. I take my responsibility very seriously. I do not have tolerance for dishonesty or playing games with our mission of achieving justice. For God's sake, that's why I am a prosecutor and why I love this job. When I see stories of prosecutorial misconduct, it shocks me, and saddens me to my core.

Posted by: Prosecutor | Dec 23, 2015 7:22:56 AM

Hats off to you Prosecutor.

Posted by: NavyMomo | Dec 23, 2015 8:24:55 AM

Can you consider doing a post about the legal options available to Steven and Brendan at this point?

Posted by: John | Dec 23, 2015 10:11:46 AM

Can't wait to hear your take on that series, Colin. Get Netflix!

Posted by: kate willette | Dec 23, 2015 10:26:48 AM

Ella: Agreed.

Brian: It certainly sounds like a great series.

Prosecutor: Thanks for your insight.

John: If and when I watch it, I might do just that.

Kate: Maybe I will get a subscription after I finish grading exams.

Posted by: Colin | Dec 23, 2015 11:32:50 AM

I've watched most if Making a Murderer. Though it made the possible misconduct of Adnan's prosecutors pale in comparison. Most interested in your take Collin Miller.

Posted by: Cheri | Dec 23, 2015 11:34:57 AM

I'm a corporate accountant. If I were to ignore the law and cause harm to shareholders, I would be fired, prosecuted, and likely go to prison. Why aren't prosecutors and the police held to that same standard? The damage they can do is far greater than anything an accountant can do.

What has to change and how do we go about changing it to make prosecutors and law enforcement pay for the lives they destroy to further their career?

Posted by: Eric Wolff | Dec 23, 2015 7:41:20 PM

Watching "Making a Murderer," and quick question: is it common for a defense team to be told they cannot present any alternative theories/suspects as to a guilty party? To me, that was perhaps the most debilitating blow to Steven Avery's defense strategy...

Posted by: Becki | Dec 23, 2015 8:06:28 PM

Becki, I wondered the same thing. It seemed illogical that the defense would be precluded from raising reasonable doubt by pointing to alternate suspects. I found this 2011 court of appeals decision that details the legal precedent that led to this issue http://law.justia.com/cases/wisconsin/court-of-appeals/2011/70129.html. In short, 'Avery argues that the trial court erred in barring his presentation of third-party liability evidence. We uphold the trial court’s ruling. The third-party liability evidence proffered by Avery identified a large group of individuals who he claimed were near the Avery property on the date of Halbach’s murder but who he acknowledged had no motive to harm her. This evidence failed to satisfy the “legitimate tendency” test under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984), and was properly deemed inadmissible.'

Posted by: Jihoonie | Dec 24, 2015 10:56:41 AM

Am I the only person that's suspects Bobby and the brother in law? ??? Wtf

Posted by: Julius | Dec 27, 2015 11:12:15 AM

Julius- totally suspect Bobby and the brother in line. Like they accidentally shot her or something and then tried to hide it.

Posted by: Jennifer | Dec 27, 2015 5:56:52 PM

first episode free

Posted by: joe | Dec 31, 2015 9:31:54 AM

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