Steven Avery, the subject of the Netflix documentary series “Making a Murderer,” has gained widespread public support from viewers who believe that he was wrongly convicted of murder.
But proving his innocence in a new trial that vacates his conviction will prove to be a massively difficult task, according to one legal expert, who says that Avery faces “an uphill slog.”
“It’s certainly far from an easy road he has ahead of him,” USC law professor Jody Armour told TheWrap.
Avery has retained a new attorney, Kathleen Zellner, who cites “new evidence” that she believes will help vacate her client’s conviction.
But that evidence will have to be extremely compelling to convince a judge to re-open the murder case, cautioned Armour. The new information would need to have affected the outcome of Avery’s original trial in the death of photographer Teresa Halbach.
Avery’s legal team will have to present new evidence that “doesn’t just raise a doubt about his guilt, but it really pretty much establishes his innocence. We’ve gone from the state having to prove his guilt to him presenting evidence that pretty compellingly establishes his innocence.”
Another hurdle facing Avery: the legal system’s reluctance to acknowledge its own fallibility.
“State actors are reluctant as a general matter to admit that the criminal justice process makes mistakes about guilt and innocence and convicts innocent people,” Armour said, noting that prosecutors will “fight tooth and nail against anything that will undermine its moral authority and moral credibility.”
There is some good news for Avery’s attorneys as they move to exonerate him: The public attention that “Making a Murderer” has brought to Avery’s case could yield leads and other evidence in his favor.
“That added public awareness may generate or churn up new evidence,” Armour said. “That’s what they really want and need most desperately — new evidence of innocence that they can take to a judge.”
Public attention and new evidence have increased chances of exoneration “from negligible to significant — maybe 20, 30 percent,” he said.
Still, the legal system remains stacked against him. Attorney Paul DerOhannesian told TheWrap that there have been many death-row convicts who have dug up significant and compelling arguments for their own innocence, only to be executed nonetheless.
“The law is so strict and harsh in making it possible to overcome a conviction,” DerOhannesian said. “What prosecutors will ordinarily argue is that there was sufficient evidence of guilt, so that whatever the new information is — for example, a witness who lied — it would not have affected the outcome of the case.”
Avery’s legal team won’t be able “to re-argue the case” with evidence already presented at his trial, and any irregularities in the trial would likely have been addressed in Avery’s appeals, which he has exhausted. However, DerOhannesian said that if he were representing Avery, he would “review every piece of evidence and every witness once again, looking to see what you missed or didn’t know about the evidence or the person.”
The potential for having missed something the first time around is significant, DerOhannesian said.
“Investigators and defense attorneys don’t always examine everything as carefully as they should, because resources are limited, time is limited,” he said. “The legal system processes cases just like hospitals process patients. And in the course of processing so many cases or patients, sometimes you don’t do everything that you should do.”
The fact that Avery has a new attorney who specializes in wrongful convictions — and will likely have fresh talent on his side thanks to all the media attention — also helps.
“That’s huge,” DerOhannesian said. “If everybody could have that level of talent when they first were accused, the system would operate a lot better … Not everyone has the resources of Michael Jackson to defend themselves against charges.”
Nonetheless, even with the new legal support team, Avery is still working against precedent. The percentage of convicts who succeed in having their convictions overturned is in the “single digits — very low singles,” DerOhannesian said.