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When fiction turns into fact

The Count of Monte Cristo, To Kill a Mockingbird, 10 Rillington Place and The Shawshank Redemption are among the classics. Television programmes, The Court of Last Resort, Rough Justice and World in Action raised public awareness that mistakes can happen and uncovered some of the evidence that led to convictions being quashed. That all changed with the surprise popularity of TV documentaries such as Netflix’s Making a Murderer and The Staircase.

But what’s it like to work with law professors who are on the side of the wrongly accused and convicted in real life? King’s Reader in Criminal Law, Dr Hannah Quirk, has been closely following those cases by hosting a series of talks with the attorneys Laura Nirider and Steven Drizin from Making a Murderer and David Rudolf from The Staircase. Hannah recently returned from the Edinburgh Fringe Festival where she took part in conversational events with the attorneys about the circumstances in which miscarriages occur. Here’s her story:

So, what’s it like interviewing the lawyers who have shot to fame by taking on these cases?

It is the closest I’ve ever got to being cool! Every night after the shows, there was a line of people wanting to meet them, talk about their cases and thank them for the work they are doing.

Even though my job was to facilitate the discussion, I shamelessly basked in the reflected kudos! But seriously, it was really inspiring to hear about their work. David is an attorney with a decades-long career representing people most in need of help in civil liberties and criminal cases. Steve and Laura show the best of what academics do: scholarly research, public and political engagement and inspiring students. It must be really odd for them to suddenly have people approaching them in the streets, but they are very gracious about it. A taxi driver refused to take the fare when he recognised Steve and Laura, so they gave him a ticket for the show. I am slightly obsessed with miscarriages of justice, so it was a dream job for me.

What sparked your interest in those cases?

Like millions of people across the world, I watched the first series of Making a Murderer over Christmas 2015. It told the story of Steven Avery. He had spent 18 years in prison for rape and attempted murder until the Innocence Project helped to prove his innocence. He was the first man to be exonerated in Illinois, America, by DNA testing. I already knew of his case because he filed a $36 million civil lawsuit against the county, but two years later he was arrested for the murder of Teresa Halbach. As part of their investigations, the police interrogated Avery’s 16-year-old nephew, Brendan Dassey, who confessed to helping his uncle commit the crime. He was fed the details by the police and clearly had no idea of what he had admitted to – when the interview finished, he asked the police if he could go back to school as he had a project to hand in. The programme was beautifully shot and structured, but was especially intriguing because, unlike previous programmes of this type, we do not know if Steven Avery is guilty or not.

I had already been gripped by the Serial podcast. I came to The Staircase a bit later and found it riveting for the insights into how the case was defended and the ‘did he/didn’t he’ puzzle. It was also a painful reminder of the human cost of these cases. The toll it took on Michael Peterson’s adopted daughters who had already lost their mothers was agonising to watch. The Staircase is unusual in that it shows a wealthy white man claiming to have been wrongly convicted. Far more of these cases involve poor people who cannot afford adequate legal representation and those from minority ethnic and underprivileged groups.

How did you get involved in both series?

Dean Strang and Jerry Buting (Steven Avery’s attorneys) did some shows over here a few years ago. They were looking for an academic working in the area to interview them and I jumped at the chance. My main research interest is miscarriages of justice. I used to work for the Criminal Cases Review Commission (CCRC) in Birmingham, the first state-funded body in the world set up to investigate claims of wrongful conviction. I did a few shows with them and carried on when Steve, Laura and David came over later.

In how far does the UK law system differ from the US?

In 2005, I spent six months working at the Innocence Project New Orleans, a non-profit organisation that works to free wrongly convicted life-sentenced prisoners in Mississippi and Louisiana, the state with the highest number of prisoners serving life without parole in the world. My plan was to compare how wrongful convictions are dealt with in England and Wales by the CCRC, and the USA but I realised, pretty much on the first day there, that there was too great a disparity.

Significant reforms were introduced in England and Wales, in part following high profile miscarriages of justice in the 1970s. Suspects are much better protected here now. Unlike in England and Wales, the Wisconsin police were allowed to arrest Brendan Dassey at school and to question him without an appropriate adult or lawyer. The police in America are also allowed to lie to suspects. They are trained to extract confessions using something called the ‘Reid Technique’. It is highly effective at gaining truthful confessions – but runs a high risk of eliciting false confessions too.

Mistakes happen in every system. For the most part, nobody working in the criminal justice system here wants errors to occur. The corruption cases we saw in the 1980s with units such as the West Midlands Serious Crime Squad seem to be a thing of the past, although convictions have been quashed recently due to allegations of tampering at a forensics laboratory. There are strict rules in place and much better training of police officers regarding their behaviour in interviews. Mistakes are much more likely to occur due to the budget cuts that the criminal justice system has experienced – a 20% cut in police funding, 30% for the CPS. Standards have fallen since the Forensic Science Service was closed. Some of the consequences are highlighted in The Secret Barrister’s surprise bestseller, Stories of the Law and How it is Broken

What can be learned from the cases?

It’s an important combination. For most people watching the shows it is just entertainment, but we have to remember that these are real people caught up in a system that reflects and represents us. I was struck by one of the questions we were asked one night which was, ‘what are the main characters doing now?’ as though it was a drama rather than a documentary. Steve Drizin has worked for years in helping the courts to understand the risks of false confessions through his academic work. We know that young people and those with learning difficulties are more likely to confess falsely. More states now have laws requiring interviews to be recorded and for juveniles to have ‘appropriate adults’ supporting them in interview – they all should have this. In a neat twist, Brendan’s confession was only filmed because the courts had ordered this to happen in a previous case Steve had won.

Society wise, these cases have launched miscarriages of justice back into the public consciousness. That gives a narrow window to use these shows to effect lasting change, some police training agencies are using Brendan Dassey’s interview as an example of how not to question a suspect.

The media focus has been on American cases. This year the Emmy awards recognised When They See Us, about the Central Park Five case, and a reminder of Donald Trump’s notorious advert in New York newspapers at the time, calling for the death penalty to be reinstated.

In the UK it is important we do not just think miscarriages of justice are something that happened a long time ago or only happen in America. For a long time, politicians thought that being ‘tough on crime’ was a vote winner and introduced policies that have made it harder to get a fair trial. Most people do not realise that anyone with an annual household disposable income of over about £22,000 will not qualify for legal aid in the magistrates’ court (£37,500 in the Crown Court). If they are acquitted, having paid possibly a five or six figure sum for legal representation, reimbursement will be at the much lower legal aid rates. This ‘innocence tax’ has seen acquitted defendants forced to exhaust their life savings and be forced to sell their homes. Another concern is that within a decade, it may be impossible to find a solicitor in some areas as firms are going out of business as criminal work is paid so badly and young solicitors cannot afford to enter or stay in the profession.

I have been fascinated by wrongful convictions for years. Making a Murderer has focused public attention on this topic in an unprecedented way, but interest will fade, and television companies will move onto the next issue. I hope people will want to know more about injustice. The Justice Gap carries lots of informative articles on the subject and how to campaign against it. Amnesty International has a campaigning guide for cases in other countries and the Innocence Project offers possible actions to take. Politicians need to hear from their constituents that we care about justice. Ask your MP if he or she is part of the All-Party Parliamentary Group on Miscarriages of Justice.

Progress in the criminal justice system nearly always comes in the wake of public concern about miscarriages of justice. Hopefully Steve, Laura and David will be back for another tour with good news.

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