ARTUR OLIVEIRA: Good
afternoon, everyone.
Thank you all very
much for coming.
What a great turnout.
My name is Artur Oliveira.
I am one of the Chicago
leads for Talks at Google.
I also work in people
dev on my daytime job.
I am very happy today to
introduce to you Jerry Buting.
He is a defense attorney
from Brookfield, Wisconsin.
I think a lot of you
have heard of him
on Netflix's "Making a Murder."
Him and his partner in
that case, Dean Strang,
are going on
national tour to talk
about justice, a
conversation on justice
and the criminal justice system.
So with that, if we
could please help
me welcome up Jerry
up to the stage.
[APPLAUSE]
JERRY BUTING: OK?
Hello.
Right here?
ARTUR OLIVEIRA: Yeah.
This is for you.
JERRY BUTING: OK.
ARTUR OLIVEIRA:
Welcome to Google.
JERRY BUTING: Thank you.
Thank you.
ARTUR OLIVEIRA: Thank
you for being here.
JERRY BUTING: Thanks,
everybody, for coming out.
This is a beautiful afternoon.
ARTUR OLIVEIRA: It
is a beautiful day.
Summer should be here--
is here, I guess it is.
JERRY BUTING: It is.
ARTUR OLIVEIRA: Yeah.
Well, Jerry, like I said,
thank you for being here.
We know that you're on tour.
You and Dean are going on tour.
You've been on tour
for a couple of weeks.
You have a few more
stops along the way.
What brought about that tour?
JERRY BUTING: You know, it
really sort of arose out
of what we saw happening after
the documentary came out.
As the media would
ask us about it,
they would interview us-- it
was the same sort of process
that we saw before
the trial, where
when we were interviewed or,
let's say, during those press
conferences that you saw
at the end of each day
in the documentary, we'd go
through 20 minutes, some 30
minutes of interview.
And then two minutes
would end up on the TV,
and what they would pick
would be sometimes silly,
sometimes not.
But in any event,
two minutes wasn't
enough to deal with the
really serious issues
that this documentary
brings to the forefront.
And so we just talked about it.
And I said, wouldn't
it be good if we
could have a forum where we
could actually-- unfiltered
from the media, people could
come, write their questions
down, have a moderator
ask them what's
on people's minds, and not
just an individual reporter,
and really have more of a
conversation about the issues,
not just in this case,
but in lots of cases?
And so that's what happened.
And we promoted or suggested
we could do a couple shows.
And then those
worked successfully,
and then it kind of grew
into the national tour.
ARTUR OLIVEIRA: Sure.
That's really interesting.
You're in Chicago
tonight, and thank you
for stopping by Google.
And as I was thinking about the
opportunity to talk with you,
specifically on the
criminal justice system,
something that came
to mind right away
was something that
you said, actually,
in the documentary when you
mentioned that we can always
say we're never going
to commit a crime,
but we can never
guarantee that we'll never
be accused of a crime.
In that situation, good luck in
this criminal justice system.
And that, to me, was a
very powerful statement.
And so I wanted to bring it
up to you again and just ask,
what are the implications of
that to us as private citizens?
What is the implication
of that to our society?
JERRY BUTING: I can't say
that it's an original thought.
It's a bedrock of our
criminal justice system.
It's why we have a
presumption of innocence.
It's why we have the state
with the burden of proof
and not the defendant, because
again, you just don't know.
If somebody is going to
falsely accuse you, it's tough.
And you hope that
people will give you
the benefit of the
doubt and apply
the presumption of innocence.
The reason I said "good
luck" is because that's
shifting a little
bit in the last 20,
30 years maybe, where I
think it's harder for people
to do that.
There's much more of
a punitive attitude.
Now, in the very recent year or
two, it's starting to change.
But it's been more
difficult to get
people to put aside
their preconceptions
about-- particularly in
a high-profile case--
and really apply the
presumption of innocence.
And what happens is a
judge sits up there,
and they read and then
later give a packet
to a jury when they
go off to deliberate,
a written list of
jury instructions.
The definitions--
well, what does it
mean to be presumed innocent?
And what is the state's
burden of proof?
And it's very dry, and
it's hard for people
to apply it in their
own lives, because it's
different than what
you would do normally.
If somebody-- I say
is with parents.
If you have a child,
and one kid comes to you
and says, he started it, and
the other one says, no, no, no,
she started it, and
you're, well, you
want to hear both sides, and
you want to try and weigh one
against the other.
That's sort of intuitively
what we do in our daily lives,
but that's not what you're
supposed to do in a court,
because you have to
presume the person who's
been accused
innocent, and then you
have to make the state
disprove that, prove
to you that they're guilty.
And it's something that's a
little bit counter-intuitive.
And it's hard, if a judge is
just reading off some dry jury
instruction, for people
to really get that.
ARTUR OLIVEIRA: When it comes
to the presumption of innocence
and putting the burden
of proof on the state,
how has the evolution
of technology
and real-time communication
actually gets faster and faster
and more and more every
year, how does that
impact a defense case?
JERRY BUTING: You know,
it's a real challenge.
And it's probably
a bigger challenge
when the trial's
going on in terms
of jurors are not--
they're supposed
to base their decisions only
on the evidence in court
and not what someone tells
them outside of court,
what they read in a newspaper,
or more likely, online.
And it's difficult
to-- first of all,
juries, by and large,
are not sequestered,
like in the old days, where if
it was a serious homicide case,
the jury was
sequestered, they'd stay
in a hotel throughout the trial.
And most of the time, it
doesn't happen anymore.
They go home.
They're told, don't watch
TV, don't look things up.
And in this case, as a matter
of fact, in the Avery case,
I just happened to-- I was
going back through a transcript,
and I saw that
there were things--
at the end of the
six-week trial,
stuff was coming up
that some of the jurors
may not have been following
those instructions.
And the judge went through
a whole question-and-answer
one-on-one of each juror.
And we kind of suspected which
ones were maybe the offenders,
but he brought them
all out, so that nobody
would be singled out.
And one of them admitted
that her husband
had very strong opinions.
And he'd watch the TV and
see what would happen.
And he would tell us what went
on once we left the courtroom.
And the juror denied
that but had admitted it
to another juror.
And so it was kind of one
juror's word against the other.
Another incident
that came up was
that they were talking about
how the judge said-- because
by then, even 8, 10 years ago,
judges were instructing jurors,
don't go online,
don't look stuff up,
stay off the computer.
And now cellphones--
I mean, smartphones.
As technology evolves, it's
becoming harder and harder.
But one of the jurors was
asking questions about, well,
nobody would ever know if you
deleted it off your hard drive.
And another one was saying,
oh, no, you can't do that.
It's there.
They can still find it.
And this juror who was
saying they would never
find it all of a sudden
became white as a ghost.
[LAUGHTER]
As if they had been doing that.
And all of-- uh-oh,
I could get caught.
So it is a challenge.
And short of really,
really getting people
to promise and understand
why it's important
that they focus only on the
evidence in the courtroom,
not something--
particularly nowadays.
I mean, you go online,
you hear-- everybody's
got a point of view.
So much of it is
just speculation.
And it really wouldn't
be fair to anybody
to go through a
process like that
and have your guilt or
innocence decided online
rather than in a courtroom.
ARTUR OLIVEIRA: Right.
Yeah.
No doubt.
I think if any of
us found ourselves
in that situation, that's
what we would hope for.
But people can't help
but comment sometimes
and make that decision.
JERRY BUTING: Right.
Gossip is a tough
thing to avoid.
ARTUR OLIVEIRA: Now, at the end
of any case involving a jury,
a jury has to make
a decision, right?
And when it comes to
the impact to society,
what would be more preferable?
Would it be a wrongful
conviction or would it
be a wrongful acquittal?
JERRY BUTING: Well,
you know, historically,
an American system of
justice-- it really
goes back even beyond that.
But there's an old
saying that it's
better the 10 guilty
people go free
than one innocent person
be convicted and go away
to prison.
And that's been a
fundamental belief,
I think, for a long, long time.
I'm not so sure that it is
quite the same nowadays.
I think there are, frankly,
some people who might think, ah,
well, we got to crack down on
this-- look at Guantanamo Bay
or look at somebody who's
accused of terrorism.
Would you rather 10 terrorists
go free or one wrongly
convicted person
who wasn't involved
in terrorism be imprisoned?
And a lot of it is
people are scared.
They're worried
about their safety.
Politicians take
advantage of that.
They demagogue about it.
They run on let's
get tough on crime,
let's lock 'em up, throw
away the key mentality.
And that is finally, I would
say in the last couple of years,
starting to be
challenged by people.
And for the first
time in my life,
I've heard both major parties--
the presidential debates talk
about criminal justice reform
and the mass incarceration
problem that we have
in this country.
In my state, Wisconsin,
we now-- in fact,
for the last few years,
we have surpassed--
the budget for Department
of Corrections, prisons,
is bigger than the entire
University of Wisconsin system
statewide.
All the branches, all
the different campuses.
ARTUR OLIVEIRA: As
someone who's an alumnus
from the University
of Wisconsin,
it's really difficult
to hear that.
JERRY BUTING: It's sad.
But people are waking up, and
they're saying, wait a minute,
this doesn't make sense.
Why are we spending this much?
I mean, way more than the rest
of the world, particularly
the English-speaking
world at least.
And you know, with our
historical English common law,
it has not been that
way until recently.
And it really, I think,
started in the '80s,
with the cocaine and crack
wars, and the mandatory minimum
prison sentences that resulted.
But people are
starting to push back.
And now I'm hopeful that
there's some reform of that
coming soon.
ARTUR OLIVEIRA: Yeah.
It seems like the situation
in the prisons in this country
is starting to get
attention finally.
And what are your thoughts
on the correctional facility,
as some people like to call it?
We've seen, as you
said, explosion
in the number of
prisons, we've seen
the privatization of prisons.
How do you interact with
that idea as an attorney?
JERRY BUTING: Well,
first thing you do
is try and convince
the judge not
to send your client to prison.
[LAUGHTER]
And often, we're
successful in that.
Sometimes not.
What's really hard
is when there's
a statute that has
a mandatory minimum,
that if you're convicted,
you will go to prison.
And they're getting rid
of parole by and large
in most states,
including Wisconsin.
So you know, if they say "five
years," it means five years.
Or if they say "25
years," it means 25 years.
You don't get out
after a third or half
or-- and that's also
been part of the reason
that the prison population
has exploded like it has.
But it's a very expensive
way to punish people,
especially when you don't
have rehabilitation going on
at the same time.
Because the vast majority
of people in prison
will be released back into
society at some point.
And if they don't
have a helping hand,
there are programs
now-- one famous one
is called Second Chance.
It's very successful and I'd
like to see emulated more.
But prisoners who get out and
back into society, particularly
if they've been in
5, 10 years, or more,
they need a helping hand.
It's hard to get a job,
hard to get a place to live.
Even if they want to
be law-abiding and try
and reintegrate into
society, it's tough.
It's even worse for people,
whether you go to prison
or not, who are convicted
of sex offenses these days.
The sex offender
registry has just
exploded beyond
anyone's original idea.
The idea was that
there's a few-- a very,
really small slice
of sex offenders who
might be dangerous to
others in the neighborhood
and that you should
have the right
to know if you've got
a sex offender living
in the block down or two
blocks away, if you've
got your children running free.
But what people don't
realize is that 95% or more
of sex offenses occur not from
a stranger in the neighborhood
or a stranger who abducts
a child, particularly
child sexual assaults,
it's someone they know.
95%, it's a stepfather, or a
father, an uncle, or brother.
It's somebody that,
being on a sex offender
registry is not going
to make you any safer.
And then when they expanded it
to include even teenagers who
have consensual but
still illegal sex,
it's a sex offense.
You know, there's
tens of thousands
of people on sex offender
registries in every state now.
ARTUR OLIVEIRA: And the
impact of that of not just
jobs, but apartments.
JERRY BUTING: And the impact.
They can't live.
There are places--
this is really--
to show you how insane
it's gotten, in Milwaukee,
as a lot of places, they passed
ordinances saying you cannot
live if you're a registered
sex offender within 1,000 feet
or 2,000 feet of a school,
park, playground, whatever.
And it's gotten
to the point where
it covers the entire city now.
And the Department
of Corrections,
when they supervise
somebody, whether they're
on probation or
parole, they've got
to place these people somewhere.
And so what they've done is
it said "you cannot reside."
This was actually in the paper.
What they've done is the
parole and probation agents
tell the clients,
stay, don't reside.
Go stay with your
mother, or your sister,
or your brother for
three or four days.
And then go live in a
park 'n ride parking lot--
ARTUR OLIVEIRA: Geez.
JERRY BUTING: --for
a couple of days.
And then go back.
And kind of move around like a
shell game, because you're not
actually residing anyplace.
And now Milwaukee's
response is, well,
we're going to change the
ordinance to say "you cannot
stay overnight in any residence
in the city of Milwaukee
or within 1,000 feet of schools,
which they overlap to the point
where there's no
place they can live.
And therefore, I mean,
you've got homeless people
who are really no risk
to re-offend, probably
a bigger risk to
re-offend the more
ostracized and homeless they
become than if they are treated
more fairly to begin with.
But that's just one example.
ARTUR OLIVEIRA: Right.
Yeah.
Yeah.
And that's tough.
That's a tough reality to face.
And speaking of the
mandatory minimums,
how does that impact a
person's right to appeal?
And how does that impact
their appeal process?
And how has the appeals
process in the country
changed over the
last few decades?
JERRY BUTING: Well,
the mandatory minimums
don't directly affect the
appeal process in any way
any more than
anything else does.
But one thing that I think
people don't understand
about the appeals
system, they think
that if the jury gets it wrong,
that it'll be fixed on appeal.
You have a right to an appeal,
and the Court of Appeals
will correct the jury's mistake.
And it doesn't work that way.
The appellate
system is much more
focused on what's called
finality of judgment,
finalizing the
conviction if there's
a conviction in criminal cases
than it is in seeking justice.
And so it becomes very
difficult. 95% of appeals
are not reversed.
And there are many cases
where the court will say,
well, we might have ruled
differently than this jury,
and we don't think this
evidence was that strong or that
compelling, but we're not
going to second-guess them.
And unless you can
show that there
are errors of law
that the judge made,
mistakes that they made in
evidence allowing or not
being allowed in,
you're not going
to have a chance on appeal.
Even originally when
DNA evidence came up,
it was difficult initially
to try and get a new trial
even when you could show that
there was DNA evidence that
would exonerate you.
I had a case I worked on
for 15 years in Wisconsin
on an Innocence Project before
I could get this guy out.
All of those 15 years, he
had at least one exoneration,
or exclusion of DNA evidence
from the crime scene.
And one wasn't enough.
Suddenly, it became, well,
that wasn't important.
Well, wait a minute,
at the trial,
you said this was
critical evidence that
linked the real killer
to this crime scene.
And now you're saying, because
the DNA evidence proves
it's not this guy,
that it's not relevant?
And that's what they do.
They're allowed to do
that, unfortunately.
And eventually, the courts--
we had so much evidence
that we were able to get his
case reopened and dismissed.
But it's insane that it
should take that long.
ARTUR OLIVEIRA: 15
years to get there.
JERRY BUTING: And he
spent 29 in prison.
ARTUR OLIVEIRA: Wow.
That is stunning.
And speaking of that, speaking
of wrongful convictions,
the Innocence Project
and the amazing work
that the organization
does and other attorneys
do through the organization, why
is it that the criminal justice
system is not self-correcting?
Why do we need outside
third-party organizations
to come in and do
that kind of work?
JERRY BUTING: Part of
it is the lack of money.
80% to 85% of
criminal defendants
are too poor to afford
their own lawyers,
much less an
investigator or an expert
to talk about EDTA or
something like that, like you
saw in the "Making a Murder."
And despite the fact
that we continue
to prosecute primarily
poor people, criminalizing
poor people, we're not giving
the funding to defend them.
Anywhere from only
a third to a half
of the money that
goes to prosecution
ends up for the defense.
So it's really obscenely low.
Again, my own state just
to the north of you here.
And it's not that
much better anywhere.
But Wisconsin now
has-- most states
have a public
defender staff that
handle maybe 2/3 of the cases.
But the remainder get appointed
out to private lawyers
on a list.
And they're paid by the hour.
Wisconsin is the lowest
hourly rate in the country.
Worst than
Mississippi, Arkansas.
The deep south
traditionally was bad.
Even worse-- what they do
is they pay $40 an hour.
When I first started practicing
law in Wisconsin in 1981,
they paid $45 an hour.
ARTUR OLIVEIRA: Wow.
JERRY BUTING: 1981.
So you see the quality of
lawyers go down dramatically.
The number of people willing
to take on these appeals,
it's very hard to get
good-quality defense attorneys.
And there are bad
trial lawyers, there
are bad appellate lawyers.
And oftentimes, what
these Innocence Projects
have had to do is kind
of clean up the messes
of either the courts
or bad lawyering
that's happened beforehand.
And so it shouldn't be that way.
If we really care
about the Constitution
and we care about fairness,
it shouldn't depend on
whether or not you can
afford your own lawyer as to
whether or not you're
going to get a fair trial.
ARTUR OLIVEIRA:
Yeah, absolutely.
JERRY BUTING: And
unfortunately, the reality
is that people-- it's hard.
There doesn't seem
to be a constituency
for the legislators for somebody
who's accused of a crime.
Why should we give
taxpayers' money
to defend somebody
accused of a crime?
Well, that's fine until it's
your son, or your husband,
or your neighbor, or
somebody you know who's
been accused, again, that
they never expected to be,
and suddenly they're
accused, and you're now
thrown to the wolves with a
really, really bad lawyer, some
of which you've seen depicted--
ARTUR OLIVEIRA: On
the documentary.
JERRY BUTING: --on
the documentary.
And unfortunately, that
happens all the time.
ARTUR OLIVEIRA: Right.
I want to take a moment to
say Jerry will take questions
from the audience in
just a few minutes.
So if you would like to start
lining up by the microphones.
And while people are getting
ready, I wanted to ask you,
you mentioned this case that
you worked on for 15 years.
And we've all seen
the Steven Avery case.
I just wanted to hear from you.
What is the personal
emotional impact
of working with someone who
is accused, of seeing them
very often, of interacting
with their family,
seeing what their
family is going through,
and also of what the victim's
family is going through,
two families that have been put
in a very difficult situation?
JERRY BUTING: That's
one of the reasons
that Dean and I agreed to do
this documentary was that we
wanted people to see what
it was like to be a defense
attorney preparing for a
case, dealing with family.
I didn't know that it was going
to-- what the filmmakers would
put in and not put in.
But one of the
things that I think
is really kind of unique
about this "Making a Murder"
documentary is you
really see what
it's like to be the defendant's
mother-- in this case,
two mothers going through a
lot of turmoil and heartache.
And poor Dolores Avery.
They show the map
of all these prisons
that she went to for 18 years,
visiting Steven while he
was wrongly incarcerated.
ARTUR OLIVEIRA: One of
them in the south, right?
Or just quite a
few-- several cases--
JERRY BUTING: One of them in the
South because of privatization.
At one point, they were using
a Tennessee private prison
to house people
because they didn't
have enough space in Wisconsin.
The solution was to build
more prisons in Wisconsin,
which is ridiculous.
The solution should
have been not
send as many people to
prison or not as long.
But this was back in
the '80s and '90s.
So that's one of
the things I like
about the documentary
is that it does
show that kind of interaction.
It's interesting because in
other parts of, like, the UK,
for instance, they have two
different kinds of lawyers--
solicitors and barristers.
And the barristers are
the ones that go to court.
But the solicitors
are the ones that
interact with the client, and
the family, and all of that.
And I've been written
by a lot of solicitors
who say, boy, that
must be hard to be
able to do that--
manage a family
and all the things
they're going through,
and then also have
to go to court.
But that's just the
way it is for us.
And it's very, very
hard when you lose.
This case was a devastating
loss for both Dean and I.
And I've said this before.
It's the hardest one for
me to disengage from.
I had other cases that
were sort of waiting
while this case went on.
And I needed to turn
my attention to them,
but it was difficult,
because I just
kept thinking about what
could we do different?
What could we have
done different?
What could we still do to
try and right this wrong?
Despite your best effort, you
do get emotionally involved
to some extent.
You can't let it get-- fall
into despair when you lose,
because when you're
doing defense work,
you do tend to lose.
I mean, if the case is really
that weak for the prosecution,
they can dismiss it.
What cases go to trial are going
to be a closer call, generally.
For me, it's always
been kind of a vocation.
I'm partly motivated
by my faith.
I believe that no matter
whether somebody's
really guilty of what
they're accused of or not,
there's dignity and worth
in every human soul.
And you know, what they
might have done on one
particular day does not
define them in most instances.
And when you go through
the court system
as a criminal
defense attorney, you
need to let the judge understand
who that defendant is,
and why they are a human
being and they are entitled
to be treated like
a human being,
and punished if necessary
if it's appropriate.
But not thrown out like garbage.
And so I don't know
if that answers
all of the questions you
were getting at, but--
ARTUR OLIVEIRA: It does.
Yeah, thank you
for sharing that.
We appreciate it.
And so with that, let's turn
it over to the audience.
We have some people
at the microphones.
If you'd like to go first.
AUDIENCE: Sure.
I'm curious about-- first of
all, thank you for being here.
But I'm curious
about your thoughts
on professional juries.
Like, would that be a step
in the right direction
in your opinion, to have people
that are trained in that,
so that they understand what
they should be looking at
and what evidence that's
outside their purview
that they should disregard?
'Cause I always see that.
Like, it's crazy to me
when you have an objection
and the judge just says, OK,
disregard that that happened,
as if a regular person off
the street could just be like,
oh, OK, that didn't happen.
So I'm curious.
Do you think that that would be
a step in the right direction
for us, something that we could
do to improve the process?
JERRY BUTING: That's been
talked about quite a bit
in the last 20, 30 years
maybe, particularly
as science has entered more
and more into the courtroom.
And can jurors
understand, really,
the science and
the technical stuff
that they have to deal with?
Like in patent
law, for instance,
it's all done by judges who
are trained and really have
expertise in that.
But if you do that, you
lose a couple things.
You lose the idea of
a jury of your peers.
They're no longer your peers,
they're professional jurors.
And they're just as likely--
or just as great a potential
that they will become
jaded, as some judges have.
Whereas I still prefer
the concept of jury duty
as a civic responsibility
we all have.
We should not duck it.
It's not the kiss
of death when you
get that summons-- oh, my
god, how do I get out of this?
You have a responsibility.
You're defending
the Constitution
and acting as a juror just like
somebody who goes off to war.
But you're not in danger
of your life like they are.
People shouldn't run
from it like they do.
But along with that,
you really need
to have a judge willing
to take the time
to educate the juror and
lawyers willing to educate
the jurors about their
role, so that they
understand that some cases
they may not be right for.
And it's OK to say that.
I might be a good juror in
some cases, but not others.
I think the focus
should be more on how
we make the voluntary jury,
civic-responsible jurors
of our peers more educated.
You know, it's interesting.
In this case, sometimes
it's flip-flopped.
Sometimes the defense wants
jurors of a certain type.
Sometimes the prosecutor
wants somebody just opposite.
In this case, it was
interesting that, I think,
almost every juror that was
questioned by the prosecution
was-- they started
off with the question,
are you a puzzle person?
Do you like details, or are
you more of a big-picture guy?
And if you were a puzzle
person, you're gone.
They struck anybody who
had any interest in looking
at the real details,
because that wasn't
going to help their case.
[SCOFFS]
So we, on the other hand,
didn't have that luxury.
We had to get rid of people
who were so biased already
that it was obvious.
You get a certain number
of pre-emptory strikes,
where you can get rid of
jurors for various reasons.
And we had to use all of ours
on ones that, frankly, should
have been struck by the judge.
So anyway, that's a long
answer for your question.
Sorry about that.
AUDIENCE: Thank you.
ARTUR OLIVEIRA: Over here.
AUDIENCE: Was there anything
that the documentary
that you felt left out or may
have biased in a different way?
It seemed like if you were
in the town at the time,
they were biased in one way.
And I think if you
watched the documentary,
you might have been slanted
in the other direction
just naturally by the way
of the film was [INAUDIBLE].
So was there anything
you felt that it didn't
look at objectively
in the film or that
should have been left out
or should have been added?
JERRY BUTING: Well, they
had-- the filmmakers--
complete editorial control
over what was included and what
wasn't.
And you know, I'm not
going to criticize them
for-- any filmmaker's
going to make choices.
This was a six week-long trial.
They had 10 hours for
the whole documentary,
and maybe three or four
of it was the trial,
this particular trial.
So yes, there was
a lot that was not
included, but from both sides.
But I will say this.
When it comes to the
evidence in the trial itself,
I thought it was very
fair and balanced.
There was definitely more of
a defense perspective because
of our willingness
to participate
and the prosecution's
decision not to.
So you got to see us kind of
talking behind the scenes,
and what are we worried about,
and brainstorming how are
we going to deal this and that.
You got more of the
defense perspective.
But when it comes to the
evidence that the jury heard,
that was really
balanced and fair.
There was other things
that weren't included
that would have
been, we thought,
were more important
for the defense
and that the special
prosecutor immediately
started crying foul.
You didn't include this
side or the other thing.
And he had this
whole laundry list
of things that were left out.
But what he ignored is that if
you go back and-- I say this.
The easiest way to tell what's
really important to a lawyer
is to figure out how much time
they spend in their closing
argument on it.
And you've heard
about the hood latch
DNA that was not in the
documentary that supposedly
was this very compelling
prosecution evidence.
The prosecutor spent 15 lines
of his closing argument, half
a page, out of hundreds of
pages, hours long [INAUDIBLE].
And the reason is because it was
fully explained by the state's
own witnesses at trial.
So it became neutralized,
and it was no longer
a big issue of contention,
because their own experts
admitted they were inside
the vehicle sampling,
had gloves on, went out,
wanted to check the odometer.
The battery wasn't connected.
Lifts up the hood
with the same gloves.
And the amount of DNA that
was found on the hood latch
was very small, consistent with
that kind of innocent transfer.
Like, if I shake your hand,
and you go off and rob a bank,
and my DNA might be on the
gun, but I never touched it,
that kind of thing.
So there were those
sorts of things
that-- when it came down
to the real evidence that
was fought over-- the blood
in the RAV4, the magic key,
and the bullet, and
the bones, those things
were really as balanced
as I think they could be.
ARTUR OLIVEIRA: Now,
Jerry, we are at time,
but do you mind sticking
around for one more question?
JERRY BUTING: Sure,
I'd be happy to.
I mean, you can't do
it in two or three
minutes on the TV news.
I know [INAUDIBLE].
We need a conversation.
ARTUR OLIVEIRA: Thank you.
So we can go over here.
AUDIENCE: Thank
you for being here.
If I remember correctly,
one of the things
in the beginning of the trial
they talked about was you
were not allowed to,
as the defense team,
to start saying other people
could have done it, right?
JERRY BUTING: Right.
AUDIENCE: And I'm a
law novice, I suppose.
But could you talk
a little bit about--
is that a typical thing?
Is that something you deal
with in every single case?
Or what is the thinking behind
that to the overall process?
JERRY BUTING: Sure.
Most states have a similar
kind of rule, which basically
is that they don't want the
jury to become distracted
about what's the real issue--
putting somebody on trial who's
not there to defend
themselves by pointing
the finger at a third party
and saying, he did it,
or she did it.
And so there's
always-- most states
have some kind of
controls or limits
on what you have
to show in order
to be able to present
that kind of evidence.
Typically, in Wisconsin
until this case,
you had to show that somebody
had access, opportunity
to have committed
the crime, what
they call a legitimate
tendency towards that.
But you did not have
to also have motive.
And in this case, the judge
made a ruling beforehand
that we had to have-- we
had all these people that
could have been the killer.
They had just as much access
and opportunity as him.
But because we couldn't
prove that they had a motive
to kill her, we weren't
allowed to point the finger
at that person.
And we said, wait
a minute, the state
does not have to prove that
Steven Avery had a motive
to kill.
The prosecution almost never
does all over the country.
In a homicide,
they have to prove
intent to kill, but not
why, which is the motive.
And so how unfair is that?
They're the ones that have
the entire burden of proof
in the case.
We have no burden in the
case, and you're telling us
we can't even let the
jury know that there's
other suspects out
there, because we can't
prove that they had a motive?
And then what you end up with
is the accident, so to speak,
of if you happen to be
unlucky enough to be accused
of a homicide of somebody who
doesn't have a lot of enemies
who otherwise wouldn't
have a lot of people
that would have a motive to kill
them, like Teresa Halbach here.
As far as we knew, it wasn't
anybody who had a motive.
Part of that, though, is the
law enforcement never really
investigated her background--
I mean, her circle of friends,
and acquaintances, and
people in her life.
Remarkably little
investigation in this case.
But versus somebody
who's a drug dealer who's
been ripping people
off and maybe
has a lot of enemies,
which would be easier
to prove if you happen
to be accused of one
where there's not an obvious
motive, then you're screwed.
He layered that on in
Wisconsin in our case
as an additional requirement
in order for us to do that
and said we weren't
allowed to use it.
When the case was
affirmed on appeal,
that became the
law in Wisconsin.
And now we have one of the
toughest in the country--
to be able to introduce
that kind of evidence.
AUDIENCE: Thanks.
JERRY BUTING: Sure.
AUDIENCE: Hi, I got a two-part
question if you don't mind.
JERRY BUTING: All right.
AUDIENCE: So firstly, I'm
thinking about the courtroom
and wondering if you think that
the setting of the courtroom
is really an optimal way
to align your evidence so
that the jury and the decision
makers can make a decision.
Perhaps there are a lot
of factors like timing
and just randomness that
can really make or break
the case for your client.
And if you don't think that
it's perhaps the optimal way
to go about bringing
justice, do you
think that there could
be an approved way
to really make that happen?
JERRY BUTING: Well,
in America, we
have what's called an
adversary system of justice,
the idea being that a trial
is a search for the truth,
but sometimes that's
elusive, particularly
when credibility of
witnesses-- who do you believe?
He says one thing,
she says another.
Somebody else says
the third thing.
If it's a bar fight where
people are intoxicated
and you have lots
of stuff going on,
you may get a
different perspective
from everybody who was there.
The idea, though, with
the adversary system is
that witnesses come
into court, both sides
can question the witness,
and try and bring out facts,
like whether they were
impaired, and maybe you
didn't see this that clearly.
And if the two sides
are relatively equal,
that the truth will be in
there somewhere and the jury
will be able to then
discern the truth.
Unfortunately, the two
sides aren't always equal,
particularly nowadays, where
the defense is so underfunded,
particularly indigent defense.
But there are other problems.
It's not ideal for
jurors to try and think
about something that
happened very quickly that's
being exploded into little
microseconds of this, that,
and everything happening.
But short of that, I'm not
sure how else you do it.
There is an opportunity,
for instance,
for jury visits to the scene of
a crime, where they can maybe
get a better perspective on
what the witnesses are talking
about.
You can't really do
reenactments of what happened.
You see that on TV
and cable sometimes
with scary music going on.
So I don't-- you know, I still
think it's the best system that
you can come up with, but it's
not like it doesn't have its
flaws.
And we see a lot of them
in this documentary.
It's law enforcement.
It's very difficult. If
you've got a case where
you think someone is being
framed by law enforcement, very
difficult to defend
against that,
because who knows better than
police how to frame somebody?
Think about it.
What would you do?
How easy would it be if you
really wanted to do that?
And there's not a real
good solution to that other
than you need to
make sure you try
and hold your law
enforcement accountable just
like anybody else.
And if you've got bad
cops, they shouldn't
be rewarded by taking
over the department,
moving up, and now being
the head of evidence.
I still think the
best way to do it
is in the courtroom with the
adversaries on both sides.
But it definitely-- you
have to watch for the flaws
and remedy those
where you see them.
AUDIENCE: Thank you.
JERRY BUTING: Sure.
AUDIENCE: Hi, thanks for coming.
It sounds like the
prosecution is often
motivated to convict someone
as opposed to the right one.
So is there anything to be
done about this problem,
or is this a symptom of
something else being wrong?
JERRY BUTING: Well,
it's interesting
that-- all lawyers are bound
by a certain code of ethics.
Prosecutors, though,
have their own.
And it's interesting
because they should,
because one of the
things that they're
supposed to do, ethically, is
seek justice, not a conviction.
But that's oftentimes difficult,
because human beings--
you get into the
battle, you want to win.
And sometimes they
can lose sight of that
and lose sight of justice.
But I think most prosecutors
try not to do that.
But it's sometimes hard.
For instance, the
case I mentioned
where I worked for 15 years.
That same prosecutor
was on the case
from 29 years ago all
the way to the end,
almost to the very end.
Finally retired.
But he was not a guy
that was generally
considered to be a jerk, a
biased, corrupt prosecutor
at all.
But I think it was difficult--
and you see this time and time
again on DNA exoneration cases.
Prosecutors do get emotionally
involved with victims
and their families.
And the idea that not only
did they convict the wrong guy
and send the wrong
guy to prison,
but that the killer or
the rapist went scot-free.
It's hard for them to look
into a victim's family's eyes
and say, I'm sorry, we let
this guy go, we screwed up.
And so humanly, it's
difficult for them
to step back and be objective.
One way to maybe improve
the chance of something
like that, at least
with post-conviction,
is to try and make sure there's
a different prosecutor taking
over the case and examining it
with a little more objectivity.
AUDIENCE: Thank you.
JERRY BUTING: Sure.
ARTUR OLIVEIRA: All right.
Thank you.
Jerry, thank you
so much for coming.
JERRY BUTING: You're welcome.
ARTUR OLIVEIRA: We really
appreciated hearing from you.
JERRY BUTING: OK.
ARTUR OLIVEIRA: Good
luck on your tour.
JERRY BUTING: Thank you.
ARTUR OLIVEIRA:
conversationonjustice.com.
And--
JERRY BUTING: And
I'm writing a book.
[LAUGHTER]
ARTUR OLIVEIRA: All right.
JERRY BUTING: And it's not just
about the Steven Avery case.
In fact, the case I
mentioned will be talked
about in a lot more detail.
And I tell people that as
bizarre as the Steven Avery
case is, you would think that's
the craziest one I've had,
and it's not.
I've had crazier ones, just
as interesting, and yeah,
I've been really blessed
with that in my career.
And so--
[LAUGHTER]
As a criminal defense
attorney, that's what you want.
You want some challenges.
ARTUR OLIVEIRA:
We're all very much
looking forward to the book.
JERRY BUTING: Good.
All right.
ARTUR OLIVEIRA: Thank you.
[APPLAUSE]
