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.