Theft By Press Conference: Stealing A Defendant's Presumption of Innocence With Prejudicial Pre-Trial Publicity

Making A Murderer , Netflix's smash documentary series was a revelation, opening my eyes to many things about Steven Avery's case that I did not know before. As one of Brendan Dassey's attorneys, I had reviewed Mr. Avery's trial transcripts and some of the media coverage of his case. But there's a huge difference between reading a trial transcript or an online news article and seeing events unfold on film. Of all the shockers in the film, the most disturbing to me was Calumet County District Attorney Ken Kratz's press conference on March 2, 2006. I saw, for the first time, how Mr. Kratz destroyed both Mr. Avery's and my client's "presumption of innocence."

On March 2, 2006, the afternoon after Brendan was arrested, Mr. Kratz addressed a throng of reporters whom he had assembled in a press conference that was carried live on many local television and radio stations. Mr. Kratz first issued a warning to viewers and listeners not to let children under age 15 hear what he was about to say. And then he proceeded to narrate Brendan's "confession" over the air. Merely mentioning that Brendan confessed was prejudicial enough, but Mr. Kratz went further. He vouched for the truth of the confession, speaking with certainty with phrases like "we now know what happened" to Teresa Halbach. The release of these gory details coupled with his confidence in their truth all but sewed shut any chance that Brendan or Steven could get a fair trial.

The press conference was such a disturbing spectacle that it traumatized many who heard it, including grown men and reporters like Aaron Keller, the NBC26 Reporter from Green Bay, who told Rolling Stone that "it was the single most shocking thing I ever heard as a human being." Mr. Keller, dubbed the "Silver Fox" for his good looks and thick gray hair by Making a Murderer fans, had to shut himself in the news truck for an hour afterwards to decompress. He told Rolling Stone that he felt the need to reach out to some "decent human beings" who were his loved ones. Keller called his parents.

Other reporters who covered the conference have told me that they could not sleep or eat for days afterwards and one television producer from near-by Fond du Lac told me that she remembered exactly where she was when she heard the news. It was the kind of indelible memory -- like Kennedy's assassination or the Twin Towers falling on 9-11 - that people still couldn't shake.

What makes Mr. Kratz's conduct especially galling is that he had to know he was breaching both ethical rules governing pre-trial publicity and special rules which expect an even higher duty of prosecutors in criminal cases. He just didn't care.

There's no wiggle room in these rules. Wisconsin Rule of Professional Conduct 3.6(2)(a) prohibits lawyers from making public statements that the lawyer "knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Rule 3.6(2)(b) is more specific, prohibiting attorneys in a criminal case, from publicizing "the possibility of a plea of guilty to the offense or the existence of the contents of any confession, admission or statement by the defendant or suspect." The Comments to Rule 3.8 which concern "the special responsibilities of a prosecutor" state that "a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused."

Mr. Kratz violated these rules. He knew that the contents of Brendan's confession would be disseminated widely throughout the Manitowoc area, the entire state of Wisconsin, and soon enough to the world via the internet. As Mr. Keller can attest to, the manner in which Mr. Kratz read the contents of the confession only served to add to the trauma of those listening to it. The remarks also inflamed the public's scorn of Avery, Dassey, and the entire Avery family.

There is a special reason why the rules prohibit discussing the "contents of a confession." It is because there is no more powerful piece of evidence in a court of law. Former Supreme Court Justice William Brennan once wrote: "No other class of evidence is so profoundly prejudicial... Triers of fact accord confessions such heavy weight in their determination that the introduction of a confession makes the other aspects of a trial in court superfluous and the real trial, for all practical purposes, occurs when the confession is obtained." The reason for this is because most jurors naively think that they would never falsely confess to a crime. They also believe that only an insane person would falsely confess to a murder. When prospective jurors heard Brendan's confession, Brendan's presumption of innocence morphed into an almost irrebuttable presumption of guilt.

In the wake of Mr. Kratz's press conference, few in the media questioned his conduct. They printed the contents of his confession and played clips of the conference on the air over and over again. State and local prosecutors (and former prosecutors turned talk show hosts) were equally mum about the ethics of Mr. Kratz's behavior. It's only now, in the wake of the film's release, that some prosecutors are publicly condemning condemning Mr. Kratz's conduct and some members of the media are second-guessing their decision to blindly follow Mr. Kratz's lead. At the time, however, their silence made them complicit in Mr. Kratz's ethical breaches.

Mr. Kratz has never paid any price for his theft of Brendan and Steven's "presumption of innocence." Apparently, no disciplinary complaints citing misconduct during the press conference were ever filed against Mr. Kratz before the Wisconsin Office of Lawyer Regulation. But unless prosecutors like Mr. Kratz face serious sanctions for such rule violations in the future, there will surely be others who will follow in his footsteps.

Disciplining prosecutors, however, may not be enough to curb such abuses. In the late 1950's and early 1960's, the United States Supreme Court reversed several convictions due to prejudicial pre-trial publicity. But today, this remedy is disfavored. Instead, courts grant continuances, change venues, bring in juries from other counties, give extended voir dire to lawyers to pick a fair and unbiased jury, or instruct jurors to disregard information gained from outside the courtroom. Studies have shown that these "solutions" do little to erase the taint of prejudicial publicity. Even the most conscientious jurors may be unable to suppress the biasing effects of hearing that a defendant gave a confession, especially one as graphic as the one described by Mr. Kratz.

In the not so olden days, jurors got their information from newspapers or from nightly news. Such news had a short shelf life. In the internet age, however, prejudicial information takes on a life of its own; it spreads like a virus, and it lives forever, only a click away. In this day and age, more serious sanctions may be necessary to deter prosecutorial misconduct. When prosecutors deliberately breach the ethical rules in order to contaminate the jury pool, trial courts may have no option but to dismiss indictments and appellate courts may have no choice but to grant defendants new trials. No court likes to use these "nuclear options" but these remedies may be the only way to prevent further abuses and to protect a defendant's fair trial rights.

Steven A. Drizin, one of Brendan Dassey's appellate lawyers, is a Clinical Law Professor at Northwestern Pritzker School of Law's Bluhm Legal Clinic and the co-founder of the Clinic's Center on Wrongful Convictions of Youth