INTRODUCTION: WELCOME TO THE HELLMOUTH

  1. Dana Reston, “Witch,” Buffy the Vampire Slayer, season 1, episode 3, dir. Stephan Cragg, perf. Anthony Head as Rupert Giles, aired March 17, 1997 (Los Angeles: 20th Century Fox Television).

  2. Mary Spicuzza, “Prosecutor Warns Teachers about New Sex Education Curriculum,” Wisconsin State Journal, April 6, 2010, http://host.madison.com/wsj/news/local/govt_and_politics/prosecutor-warns-teachers-about-new-sex-education-curriculum/article_0e1496a2-41e1-11df-aeea-001cc4c03286.html (accessed April 28, 2016).

  3. Wisconsin State Public Defender Admin., “Supreme Court of Wisconsin: No Fourth Amendment Protection for Locked, Underground Parking Garage,” On Point, January 18, 2016, http://www.wisconsinappeals.net/on-point-by-the-wisconsin-state-public-defender/scow-no-4th-amendment-protection-for-locked-underground-parking-garage/ (accessed April 28, 2016).

  4. Michael D. Cicchini, “Judge Makes up Facts and Sends Autistic Defendant to Prison,” Legal Watchdog, November 28, 2010, http://thelegalwatchdog.blogspot.com/2010/11/judge-makes-up-facts-and-sends-autistic.html (accessed April 28, 2016).

  5. Michael D. Cicchini, “Sex Offender Registries: They're Not Just for Sex Offenders Anymore,” Legal Watchdog, December 4, 2010, http://thelegalwatchdog.blogspot.com/2010/12/sex-offender-registries-theyre-not-just.html (accessed April 28, 2016).

  6. State v. Smith, 716 N.W. 2d 482, 495 (Wis. 2006). The dissent, however, had a more rational view, and believed that “an objectively reasonable person in the place of the challenged prospective juror would not ordinarily be able to separate his or her economic and loyalty interests from the determinations he or she would be required to make as juror. An employee of a district attorney's office should therefore be struck as a juror for cause when that office is prosecuting a case.” (Abrahamson, C. J., dissenting.)

  7. Michael O'Hear, “Wisconsin v. Minnesota,” Marquette Univ. Law School Faculty Blog, May 18, 2011, http://law.marquette.edu/facultyblog/2011/05/18/wisconsin-v-minnesota/ (accessed April 28, 2016).

  8. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

  9. Although not specifically discussed in the documentary, one of Avery's appellate court decisions indicates that he presented sixteen alibi witnesses in his defense. State v. Avery, 570 N.W.2d 573, 575 (Ct. App. Wis. 1997).

10. Although the documentary referred to the key being discovered on the seventh search, the appellate court decided that it was discovered on the sixth search. State v. Avery, 804 N.W.2d 216, 220 (Ct App. Wis. 2011).

11. Avery's trial court documents in the Halbach case—including the criminal complaints, motions, briefs, jury instructions, and other filings—can be found at http://www.stevenaverycase.org/keydocuments/. Much of the evidence from Avery's Halbach trial—including photographs and audio recordings—can be found at http://www.stevenaverycase.org/. Avery's and Dassey's state-level post-conviction and appellate court documents—including attorney briefs and court decisions—can be found by searching the database at https://wscca.wicourts.gov/index.xsl. Finally, cited law review articles authored or coauthored by Michael Cicchini can be found at http://www.cicchinilawoffice.com/articles.html.

CHAPTER 1: EYEWITNESS (MIS)IDENTIFICATION

  1. State v. Avery, 414 N.W.2d 319 (Ct. App. Wis. 1987); State v. Avery, 570 N.W.2d 573 (Ct. App. Wis. 1997).

  2. Michael D. Cicchini and Joseph G. Easton, “Reforming the Law on Show-Up Identifications,” Journal of Criminal Law and Criminology 100 (2010): 381, 385–88.

  3. State v. Dubose, 699 N.W.2d 582, 592 (Wis. 2005) (emphasis added).

  4. Ibid., p. 584, n. 1. “A ‘showup’ is an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes.”

  5. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix). About twenty years after the event, when testifying at a deposition, Judy Dvorak denied that she had responded that way—“that sounds like Steven Avery”—but admitted that she may have made such a statement “that evening, or possibly at the sheriff's department.”

  6. State v. Avery, 570 N.W.2d 573, 580 (Ct. App. Wis. 1997). Avery's booking photo revealed that his eyes were not just blue, but bright blue.

  7. About twenty years after the event, when testifying at a deposition, Gene Kusche denied drawing the sketch based on the booking photo, and insisted that he drew it based on Penny Beerntsen's description of the perpetrator. He admitted, however, that “my sketch looks more like Steven Avery than it does Gregory Allen,” the real perpetrator. Demos and Ricciardi, Making a Murderer.

  8. Jessica Lee, “Note: No Exigency, No Consent: Protecting Innocent Suspects from the Consequences of Non-Exigent Show-Ups,” Columbia Human Rights Law Review 36 (2005): 755, 769, quoting Patrick M. Wall, Eye-Witness Identification in Criminal Cases (Springfield, IL: Charles C Thomas, 1965), p. 28.

  9. United States v. Funches, 84 F.3d 249, 254 (7th Cir. 1996). “A show-up is inherently suggestive because the witness is likely to be influenced by the fact that the police appear to believe the person brought in is guilty, since presumably the police would not bring in someone that they did not suspect had committed the crime.”

10. Stovall v. Denno, 388 U.S. 293, 302 (1967).

11. State v. Dubose, 699 N.W.2d 582 (Wis. 2005).

12. Demos and Ricciardi, Making a Murderer.

13. A show-up is usually conducted with a single live suspect, but can also take the form of a single photograph or, in Avery's case, a single sketch.

14. If a victim is certain that her attacker was, for example, Caucasian, the Caucasian suspect should not be surrounded by all African American fillers in the photo array or lineup. Such a poorly constructed identification procedure would be even more suggestive than a show-up procedure.

15. State v. Dubose, 699 N.W.2d 582, 594 (Wis. 2005). “A lineup or photo array is generally fairer than a showup, because it distributes the probability of identification among the number of persons arrayed, thus reducing the risk of a misidentification.”

16. State v. Avery, 414 N.W.2d 319, *12 (Wis. Ct. App. 1987).

17. Wisconsin Office of the Attorney General, Model Policy and Procedure for Eyewitness Identification (Madison: Wisconsin Department of Justice, 2005), p. 6. For additional discussion, see State v. Dubose, 699 N.W.2d 582, 594 (Wis. 2005). “[I]t is important that a suspect be shown to the witness only once.”

18. State v. Dubose, 699 N.W.2d 582 (Wis. 2005), quoting Foster v. California, 394 U.S. 440, 443 (1969).

19. Calvin TerBeek, “A Call for Precedential Heads: Why the Supreme Court's Eyewitness Identification Jurisprudence is Anachronistic and Out-of-Step with the Empirical Reality,” Law and Psychology Review 31 (2007): 21, quoting Elizabeth Loftus, Eyewitness Testimony (Cambridge, MA: Harvard University Press, 1979), p. 19.

20. Cicchini and Easton, Reforming the Law on Show-Up Identifications, pp. 387–88, quoting Amy Luria, “Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes,” Nebraska Law Review 86 (2008): 515, 525.

21. State v. Avery, 414 N.W.2d 319, *14 (Ct. App. Wis. 1987).

22. Lee, “No Exigency, No Consent,” p. 773. More recent research suggests a moderate, positive correlation between confidence and accuracy. However, this relationship is complex. For example, comments by the police to the witness (e.g., “You got it right!”) immediately after the identification procedure can artificially bolster the witness's confidence. Similarly, the lapse of time can also artificially bolster the witness's confidence, which is why his confidence level immediately after a properly conducted identification procedure is probably more relevant than his confidence level by the time he eventually testifies at trial.

23. TerBeek, “A Call for Precedential Heads,” p. 24.

24. Suzannah B. Gambell, “Comment: The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications,” Wyoming Law Review 6 (2006): 189, 219.

25. Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process,” Texas Tech Law Review 41 (2008): 133.

26. State v. Dubose, 699 N.W.2d 582 (Wis. 2005).

27. State v. Nawrocki, 746 N.W.2d 509, 519 (Wis. Ct. App. 2008).

28. William J. Cromie, “False Memories: How People Remember Things That Never Happened,” Harvard University Gazette, September 19, 1996, http://news.harvard.edu/gazette/1996/09.19/FalseMemories.html (accessed April 28, 2016); Erika Hayasaki, “The End of Eyewitness Testimonies,” Newsweek, November 19, 2014, http://www.newsweek.com/2014/11/28/end-eyewitness-testimonies-285414.html (accessed April 28, 2016).

29. Ibid.

CHAPTER 2: NEWLY DISCOVERED EVIDENCE

  1. Barry Scheck, “Symposium: Thinking Outside the Box: Proposals for Change: Closing Remarks,” Cardozo Law Review 23 (2002): 899, 901.

  2. State v. Avery, 570 N.W.2d 573, 580 (Ct. App. Wis. 1997). His actual booking photo reveals that his eyes were not just blue, but bright blue.

  3. Ibid.

  4. State v. Avery, 414 N.W.2d 319 (Ct. App. Wis. 1987).

  5. Ibid., p. *14 (emphasis added).

  6. Ibid., p. *15 (emphasis added).

  7. State v. Avery, 570 N.W.2d 573, 580 (Ct. App. Wis. 1997).

  8. Ibid., p. 575.

  9. Ibid.

10. Ibid.

11. Ibid., p. 576.

12. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

13. State v. Avery, 570 N.W.2d 573, 577 (Ct. App. Wis. 1997) (emphasis added).

14. Ibid. (emphasis added).

15. State v. Armstrong, 700 N.W.2d 98, 131 (Wis. 2005).

16. State v. Avery, 570 N.W.2d 573, 581 (Ct. App. Wis. 1997).

17. Ibid.

18. Ibid., p. 582.

19. Ibid., p. 580 (emphasis added).

20. Innocence Project: The Cases: Steven Avery, http://www.innocenceproject.org/cases-false-imprisonment/steven-avery (accessed April 28, 2016).

CHAPTER 3: SEEK, AND (EVENTUALLY) YE SHALL FIND

  1. U.S. Const. amend. IV.

  2. Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (emphasis added).

  3. Defendant's Motion to Suppress Evidence: Franks v. Edwards Violation, Lack of Probable Cause for Warrant, and Multiple Executions of Warrant, pp. 12–19, Case No. 2005-CF-381, Manitowoc Co., Wis.

  4. State v. Avery, 804 N.W.2d 216, 223-25 (Ct. App. Wis. 2011).

  5. U.S. Const. amend. VI.

  6. The courts, however, often get even this wrong. Wisconsin Public Defender Admin., “Conviction for Quadruple Homicide at Questions Bar Affirmed Despite Possible Sixth Amendment Violations,” On Point, June 4, 2014, http://www.wisconsinappeals.net/on-point-by-the-wisconsin-state-public-defender/conviction-for-quadruple-homicide-at-questions-bar-affirmed-despite-possible-sixth-amendment-violations/ (accessed April 28, 2016).

  7. What is “just,” of course, is all a matter of perspective. For example, most police searches involve drug cases. And in Wisconsin, a person growing a single marijuana plant for personal use or, under certain circumstances, merely possessing a marijuana cigarette for personal use, is guilty of a felony. In many of these cases, Wisconsin judges will send such defendants to jail or even prison. Given the dramatically different laws that exist in Colorado and other socially liberal states, it is certainly arguable that a defendant who uses the Fourth Amendment to escape Wisconsin's reach is, in fact, escaping an unjust punishment.

  8. Bill Rankin, “Judge Accused of Pre-Signing Warrants, Propositioning Woman Resigns,” Atlanta Journal-Constitution, August 16, 2012, http://www.ajc.com/news/news/local-govt-politics/judge-accused-of-pre-signing-warrants-propositioni/nRMHb/ (accessed April 28, 2016).

  9. State v. Avery, 804 N.W.2d 216, 222 (Ct. App. Wis. 2011) (emphasis added).

10. Ibid., p. 223.

11. McDonald v. State, 259 S.W.2d 524, 524-25 (Tenn. 1953).

12. State v. LaCount, 750 N.W.2d 780 (Wis. 2008).

13. State v. Avery, 804 N.W.2d 216, 223 (Ct. App. Wis. 2011) (emphasis added).

14. Brief of Defendant-Appellant, pp. 9–13; 23–50, Case No. 2010AP000411, Ct. App. Wis., Dist. II.

15. Ibid., p. 34.

16. Ibid.

17. Ibid.

18. Ibid., p. 10.

19. State v. Avery, 804 N.W.2d 216, 224, n.3 (Ct. App. Wis. 2011). Naming the items included in the warrant, which were limited to Halbach's remains, Halbach's personal property, forensic evidence proving that Halbach was present in the home, and any “instrumentalities capable of taking human life….”

20. Ibid., p. 225. “We are satisfied that the decision [to reenter] was not only reasonable but necessary….”

21. Ibid., p. 224, n. 4.

22. Ibid., p. 225, n. 5.

23. Ibid., p. 226 (emphasis added).

24. Ibid.

25. Ibid., pp. 226–27.

26. Brief of Defendant-Appellant, p. 39.

27. Ibid., p. 42.

28. State v. Avery, 804 N.W.2d 216, 227 (Ct. App. Wis. 2011).

29. Brief of Defendant-Appellant, p. 39. “[I]f the key was secreted in the bookcase as the officers surmised, it was only due to the twisting, shaking and pulling of the bookcase that the key was discovered.”

30. State v. Kennedy, 396 N.W.2d 765 (Ct. App. Wis. 1986).

31. Herring v. United States, 129 S. Ct. 695, 700 (2009) (emphasis added).

CHAPTER 4: WEIRD SCIENCE

  1. Frank L. H. Wolfs, “Introduction to the Scientific Method,” Appendix E, http://teacher.nsrl.rochester.edu/phy_labs/appendixe/appendixe.html (accessed April 28, 2016).

  2. Ibid.

  3. Defendant's Statement on Planted Blood, Case No. 2005-CF-381, Manitowoc Co., Wis.

  4. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

  5. Ibid.

  6. Ibid.

  7. Ibid.

  8. Ibid.

  9. Ibid.

10. Ibid.

11. This phenomenon was not only obvious in Making a Murderer, but has also been well documented. Saul M. Kassin, Itiel E. Dror, and Jeff Kukucka, “The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions,” Journal of Applied Research in Memory and Cognition 2 (2013): 42.

12. Demos and Ricciardi, Making a Murderer.

13. State v. Avery, 570 N.W.2d 573 (Ct. App. Wis. 1997).

14. Wisconsin Statutes § 907.02 (2005–06).

15. Daniel D. Blinka, “The Daubert Standard in Wisconsin: A Primer,” Wisconsin Lawyer, March 2011, http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=84&Issue=3&ArticleID=2348 (accessed April 28, 2016).

16. Wisconsin Statutes § 907.02 (2013–14).

17. Blinka, “The Daubert Standard.”

18. Wisconsin Public Defender, Admin., “Drug Recognition Evaluator Passes Daubert Test for Admissibility of Expert Testimony,” On Point, April 13, 2016 (emphasis added), http://www.wisconsinappeals.net/on-point-by-the-wisconsin-state-public-defender/drug-recognition-evaluator-passes-daubert-test-for-admissibility-of-expert-testimony/ (accessed April 28, 2016).

19. Wisconsin Public Defender, Admin., “Social Worker's Testimony about Behavior of Child Abuse Victims Passes Daubert,” On Point, December 10, 2015, http://www.wisconsinappeals.net/on-point-by-the-wisconsin-state-public-defender/social-workers-testimony-about-child-abuse-victims-admissible-under-daubert/ (accessed April 28, 2016).

20. Ibid.

CHAPTER 5: THE WRONG-PERSON DEFENSE

  1. Stephen Michael Everhart, “Putting a Burden of Production on the Defendant Before Admitting Evidence that Someone Else Committed the Crime Charged: Is It Constitutional?” Nebraska Law Review 76 (1997): 272, 293.

  2. Wisconsin Criminal Jury Instructions No. 140. For a discussion of the true purpose of the criminal jury trial, see Chapter 7: Truth, Doubt, and the Burden of Proof.

  3. For additional suspects in the Halbach murder, see State v. Avery, 804 N.W.2d 216, 233 (Ct. App. Wis. 2011), naming several alternative perpetrators.

  4. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

  5. Holmes v. South Carolina, 547 U.S. 319, 324 (2006). “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.”

  6. State's Denny Motion Prohibiting [sic] Evidence of Third-Party Liability, Case No. 2005-CF-381, Manitowoc Co., Wis.

  7. Order Regarding State's Denny Motion Prohibiting [sic] Evidence of Third-Party Liability, Case No. 2005-CF-381, Manitowoc Co., Wis.

  8. State v. Denny, 357 N.W.2d 12 (Ct. App. Wis. 1984).

  9. See Michael D. Cicchini, “An Alternative to the Wrong-Person Defense,” George Mason University Civil Rights Law Journal 24 (2013): 1.

10. Wisconsin Criminal Jury Instructions No. 175 (emphasis added).

11. State v. Avery, 804 N.W.2d 216, 231 (Ct. App. Wis. 2011), affirming the trial court's Decision and Order on Admissibility of Third-Party Liability Evidence.

12. State v. Wilson, 864 N.W.2d 52 (Wis. 2015).

13. Ibid., p. 65.

14. Ibid. (emphasis added).

15. Ibid., p. 68.

16. Ibid., p. 69.

17. Ibid., p. 55.

18. Ibid., p. 69. When an appellate court wants to make the defendant's theory sound far-fetched or confusing, it will throw up its metaphoric arms and use the phrase “shooter or shooters,” or, similarly, “killer or killers,” to imply that the defendant isn't being specific or clear enough to allow him to use his chosen defense at trial.

19. State v. Avery, 570 N.W.2d 573, 581 (Ct. App. Wis. 1997).

20. Ibid.

21. Ibid., p. 582.

22. Ibid.

23. State v. Wilson, 864 N.W.2d 52, 70 (Wis. 2015). Other justifications for the near-impossible-to-satisfy Denny rule have been offered, including that allowing a defendant to point the finger at another person could confuse the jury. There are two problems with this justification. First, it begins with the assumption that the defendant is, in fact, guilty, and that the jury should not be permitted to conclude otherwise. And second, if the jury is ultimately confused about whether it was the defendant or the third party who committed the crime, that so-called confusion is nothing more than reasonable doubt. See Cicchini, “An Alternative to the Wrong-Person Defense,” pp. 18–20.

24. State v. Avery, 804 N.W.2d 216, 232 (Ct. App. Wis. 2011), quoting Avery's trial judge.

25. Wisconsin Criminal Jury Instructions No. 140.

26. Kyles v. Whitley, 514 U.S. 419, 446 (1995). Kyles was specifically adopted in Wisconsin by State v. DelReal, 593 N.W.2d 461 (Ct. App. Wis. 1999).

27. Cicchini, “An Alternative to the Wrong-Person Defense,” pp. 26–31.

28. Kyles v. Whitley, 514 U.S. 419, 442-453 (1995) (emphasis added).

29. For example, some law enforcement agents gave multiple statements about what they saw and did during the course of working Avery's cases. Their statements took different forms, including written reports, departmental communications, sworn deposition testimony in Avery's civil suit, and sworn in-court testimony in the criminal case. And sometimes, when a cop would open his mouth on a topic, the details of the story would change to meet the needs of the situation. This, in turn, led to excellent cross-examination and impeachment of these government witnesses at trial.

30. Demos and Ricciardi, Making a Murderer.

31. Ibid.

CHAPTER 6: INTERROGATIONS AND FALSE CONFESSIONS

  1. Miranda v. Arizona, 384 U.S. 436 (1966). Although most Miranda warnings are similar, the US Supreme Court does not require any specific language in order to satisfy Miranda. In fact, there are hundreds of variations of the warnings in use across the country.

  2. Anthony J. Domanico, Michael D. Cicchini, and Lawrence T. White, “Overcoming Miranda: A Content Analysis of the Miranda Portion of Police Interrogations,” Idaho Law Review 49, no. 1 (2012): 4, quoting the version of Miranda warnings commonly used in Wisconsin.

  3. State v. Dassey, 827 N.W.2d 928, *2 (Ct. App. Wis. 2013).

  4. State v. Hockings, 273 N.W.2d 339 (Wis. 1979). “[B]oth custody and some form of questioning were necessary before Miranda warnings were required….”

  5. This allows the police to question the suspect first, without Miranda warnings, and then formally arrest him upon completion of the interrogation—a common law enforcement ploy designed to completely bypass Miranda. Charles D. Weisselberg, “Mourning Miranda,” California Law Review 96 (2008): 1519, 1546.

  6. State v. Dassey, 827 N.W.2d 928, *2 (Ct. App. Wis. 2013).

  7. Defendant Avery's Memorandum on Brendan Dassey's Statements, p. 84, Case No. 2005-CF-381, Manitowoc Co., Wis.

  8. Ibid., p. unnumbered (between pp. 85 and 86) (emphasis added).

  9. Domanico, Cicchini, and White, “Overcoming Miranda,” pp. 13–14.

10. Jan Hoffman, “Police Tactics Chipping Away at Suspects’ Rights,” New York Times, March 29, 1998, http://www.nytimes.com/1998/03/29/nyregion/police-tactics-chipping-away-at-suspects-rights.html.

11. Domanico, Cicchini, and White, “Overcoming Miranda,” pp. 13–14.

12. Michael D. Cicchini, “The New Miranda Warning,” SMU Law Review 65 (2012): 911, 920–21.

13. Regardless of whether the police notify a suspect of his Miranda rights, the suspect still has those rights. And, interestingly, a suspect's pre-Miranda or pre-arrest silence, though within his rights, may be used against him in court under certain circumstances. The law on this, however, is muddied, and is well beyond the scope of this book.

14. Domanico, Cicchini, and White, “Overcoming Miranda,” pp. 14–15.

15. Ibid., p. 15.

16. Defendant Avery's Memorandum on Brendan Dassey's Statements, p. 70.

17. Domanico, Cicchini, and White, “Overcoming Miranda,” p. 16.

18. Ibid., pp. 15–16.

19. Ibid.

20. Ibid., p. 17.

21. Emerson Foulke and Thomas G. Sticht, “Review of Research on the Intelligibility and Comprehension of Accelerated Speech,” Psychological Bulletin 72, no. 1 (1969): 50, 56.

22. Defendant Avery's Memorandum on Brendan Dassey's Statements, p. 108.

23. Ibid.

24. Ibid. (emphasis added).

25. Ibid. The interrogators had to ask Dassey to “speak up a little bit” when agreeing to the only option provided him: to waive, rather than invoke, his rights.

26. Saul M. Kassin, “On the Psychology of Confessions: Does Innocence Put Innocents at Risk?” American Psychologist 60, no. 3 (2005): 215, 219.

27. Danielle E. Chojnacki, Michael D. Cicchini, and Lawrence T. White, “An Empirical Basis for the Admission of Expert Testimony on False Confessions,” Arizona State Law Journal 40, no. 1 (2008): 18.

28. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

29. Ibid.

30. Defendant Avery's Memorandum on Brendan Dassey's Statements, p. 86 (emphasis added).

31. Melissa B. Russano et al., “Investigating True and False Confessions Within a Novel Experimental Paradigm,” Psychological Science 16, no. 6 (2005): 481, 485.

32. Domanico, Cicchini, and White, “Overcoming Miranda,” pp. 14–15.

33. Defendant Avery's Memorandum on Brendan Dassey's Statements, p. 3.

34. Demos and Ricciardi, Making a Murderer.

35. Ibid.

36. Ibid.

37. Ibid.

38. Chojnacki, Cicchini, and White, “Empirical Basis,” pp. 4–5, quoting Jacqueline McMurtrie, “The Role of the Social Sciences in Preventing Wrongful Convictions,” American Criminal Law Review 42 (2005): 1271, 1280.

39. McMurtrie, “Role of the Social Sciences,” pp. 1271, 1280.

40. Richard J. Ofshe and Richard A. Leo, “The Decision to Confess Falsely: Rational Choice and Irrational Action,” Denver University Law Review 74 (1997): 979, 984.

41. Chojnacki, Cicchini, and White, “Empirical Basis,” p. 31.

42. Saul M. Kassin and Christina T. Fong, “‘I'm Innocent!’: Effects of Training on Judgments of Truth and Deception in the Interrogation Room,” Law and Human Behavior 23 (1999): 499, 500–501.

43. Christian A. Meissner and Saul M. Kassin, “‘He's Guilty!’: Investigator Bias in Judgments of Truth and Deception,” Law and Human Behavior 26 (2002): 469, 472.

44. Chojnacki, Cicchini, and White, “Empirical Basis,” p. 32.

45. State v. Avery, 414 N.W.2d 319, *15 (Ct. App. Wis. 1987) (emphasis added).

46. Avery's mouth got him into trouble repeatedly. After Halbach went missing, he twice talked to the police before his arrest, talked to them again in the interrogation room after his arrest, and talked to the media and others while his case was pending. Some of these statements, though not admissions of guilt, were still used as evidence against him at trial.

CHAPTER 7: TRUTH, DOUBT, AND THE BURDEN OF PROOF

  1. Wisconsin Criminal Jury Instructions No. 140 (2015). Avery's jurors in the Halbach murder trial also received this instruction. Jury Instructions, Case No. 2015-CF-381, Manitowoc Co., Wis.

  2. This hypothetical dialogue between the would-be juror and defense lawyer is reprinted from Michael D. Cicchini, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (New York: Rowman & Littlefield Publishers, 2012), p. 88.

  3. Ibid., pp. 93–94 (emphasis original).

  4. Transcript, Jury Trial Voir Dire Day One, p. 141, Case No. 2015-CF-381, Manitowoc Co., Wis.

  5. Wisconsin Statutes § 805.08 (1).

  6. Transcript, Jury Trial Voir Dire Day One, p. 151.

  7. Ibid., p. 149.

  8. Ibid. pp. 158–59 (emphasis added).

  9. Wisconsin Criminal Jury Instructions No. 140.

10. Transcript, Jury Trial Voir Dire Day One, p. 149.

11. Defendant's Brief in Support of Wis. Stat. § 809.30(2)(h) Post-Conviction Motion, p. 2, Case No. 2005-CF-381, Manitowoc Co., Wis.

12. In Re Winship, 397 U.S. 358, 364 (1970). “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt….”

13. Ibid., p. 362.

14. Ibid., p. 364.

15. Ibid. For a discussion of the various burdens of proof within a model of “probabilistic decision making” for “criminal guilt and punishment” see Talia Fisher, “Conviction without Conviction,” Minnesota Law Review 96 (2012): 833.

16. Victor v. Nebraska, 511 U.S. 1, 5 (1994), giving courts tremendous leeway in their attempts to instruct jurors on the concept of reasonable doubt. For an extensive survey and discussion of the various definitions of reasonable doubt, see Richard E. Welch III, “‘Give Me That Old Time Religion’”: The Persistence of the Webster Reasonable Doubt Instruction and the Need to Abandon It,” New England Law Review 48 (2013): 31.

17. Arizona Criminal Jury Instructions (3d) (emphasis added).

18. Wisconsin Criminal Jury Instructions No. 140.

19. Federal Judicial Center Criminal Jury Instructions No. 21, cmt. (1987) (emphasis added); United States v. Jaramillo-Suarez, 950 F.2d 1378, 1386 (9th Cir. 1991).

20. Wisconsin Criminal Jury Instructions No. 140 (emphasis added).

21. United States v. Gonzales-Balderas, 11 F.3d 1218, 1223 (5th Cir. 1994), holding that “seek the truth” language “would be error if used in the explanation of…proof beyond a reasonable doubt” (emphasis added).

22. Erik R. Guenther, “What's Truth Got to Do with It? The Burden of Proof Instruction Violates the Presumption of Innocence,” Wisconsin Defender, 2005; Michael D. Cicchini, “Criminal Court: Guilty by the Preponderance of the Evidence?” Marquette Univ. Law School Faculty Blog, November 16, 2010, http://law.marquette.edu/facultyblog/2010/11/16/criminal-court-guilty-by-the-preponderance-of-the-evidence/ (accessed April 28, 2016).

23. United States v. Harper, 662 F.3d 958, 961 (7th Cir. 2011). “Trials are searches for the truth; the burden of proof is just a device to allocate the risk of error between the parties.”

24. State v. Berube, 286 P.3d 402, 411 (Ct. App. Wash. 2012).

25. Ibid; People v. Katzenberger, 178 Cal. App. 4th 1260, 1267 (2009), discussing “the jury's serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.”

26. State v. Avila, 532 N.W.2d 423, 429 (Wis. 1995). The search for the truth language, when evaluated “[i]n the context of the entire instruction,” did not dilute the burden of proof.

27. Michael D. Cicchini and Lawrence T. White, “Truth or Doubt? An Empirical Test of Criminal Jury Instructions,” University of Richmond Law Review 50 (2016): 1139.

28. Ibid., pp. 1152–56.

29. Ibid.

30. Ibid.

31. Ibid.

32. Wisconsin Criminal Jury Instructions No. 140, n. 5 explains the history of this instruction. In 1962, the instruction was worded slightly more favorably for defendants in that it repeated “reasonable doubt” at the end of the instruction, concluding, “You are to search for the truth and give the defendant the benefit of a reasonable doubt if it arises in your minds after you have carefully considered all of the evidence in the case.” Then, in 1987, the instruction was revised to its current form, concluding, “While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt. You are to search for the truth.”

33. United States v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988). “We have frequently admonished district courts not to attempt to define reasonable doubt in their instructions to the jury….”

34. Defendant's Brief in Support of Wis. Stat. § 809.30(2)(h) Post-Conviction Motion, pp. 1–2.

35. Wisconsin Criminal Jury Instructions No. 140 (emphasis added).

CHAPTER 8: INSUFFICIENT EVIDENCE

  1. State v. Ziegler, 816 N.W.2d 238, 252 (Wis. 2012) (emphasis added).

  2. Defendant's Statement on Planted Blood, pp. 11–12, Case No. 2005-CF-381, Manitowoc Co., Wis. The court required Avery's defense lawyers to file this brief on their planted evidence theory. Interestingly, the blood vial was part of the public record and was easily accessible by anyone, including any citizen, who wanted to look at the file. Further, “the Clerk's office kept no record of those individuals who asked permission to look at the file.”

  3. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

  4. Ibid.

  5. Ibid.

  6. Defendant's Statement on Planted Blood, Case No. 2005-CF-381, Manitowoc Co., Wis.

  7. Ibid., p. 19.

  8. Ibid., p. 24.

  9. Interestingly, because the evidence-planting defense relied more on circumstantial evidence than “direct evidence,” it may have failed the Denny test for third-party liability. However, Avery's defense team was not arguing that the cops killed Halbach; rather, they were arguing that the cops framed Avery for the crime. Therefore, the proper legal test is found in State v. Richardson, 563 N.W.2d 899 (Wis. 1997). See Defendant's Statement on Planted Blood, pp. 1–2.

10. Demos and Ricciardi, Making a Murderer.

CHAPTER 9: POSTMORTEM ON PRELIMINARY HEARINGS

  1. Wisconsin Statutes § 970.03.

  2. State v. Williams, 544 N.W.2d 400, 403-04 (Wis. 1996).

  3. One of the factors in setting cash bail is whether the defendant has been “bound over for trial after a preliminary examination….” Wis. Stats. § 969.01 (4).

  4. Wisconsin Statutes § 968.01.

  5. Criminal Complaint, 2005-CF-381, Manitowoc Co., Wis.

  6. Ibid.

  7. Christine Wiseman and Michael Tobin, Wisconsin Practice Series: Criminal Practice and Procedure, 2nd ed. (Eagan, MN: West Publishing, 2008), § 1.12.

  8. Ibid.

  9. Ibid.

10. State ex rel. Cornellier v. Black, 425 N.W.2d 21, 27 (Ct. App. Wis. 1988).

11. In fairness, the state's complaint against Avery, and even the preliminary hearing, involved more factual allegations than those discussed here. However, many Wisconsin defendants have been charged and bound over on fewer facts than those excerpted for purposes of this chapter. Therefore, for brevity, and for the purpose of making the relevant points, this chapter will focus on the evidence concerning Halbach's car key, including how and where it was found.

12. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

13. Wisconsin Statutes. § 970.04. “If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint….”

14. Wisconsin Statutes § 970.03 (1).

15. State ex rel. Brill v. Spieker, 72 NW.2d 906 (Wis. 1955).

16. State v. Garrity, 469 N.W.2d 219 (Wis. Ct. App. 1991).

17. Wiseman and Tobin, Criminal Practice and Procedure, § 8.3.

18. State ex rel. Funmaker v. Klamm, 317 N.W.2d 458, 460-61 (Wis. 1982).

19. Wiseman and Tobin, Criminal Practice and Procedure, § 8.42.

20. State v. Berby, 260 N.W.2d 798, 803 (Wis. 1978), holding that the preliminary hearing judge properly “relied partially on Berby's lack of motive in finding a lack of probable cause….”

21. Wisconsin Statutes § 970.038.

22. There is currently a debate as to whether multiple levels of hearsay should be permitted at Wisconsin preliminary hearings. Some judges will permit only one level of hearsay; others will consider multiple levels of hearsay to bind a defendant over—even when the witnesses are unable to identify the original declarant, i.e., the person to whom the hearsay is attributable.

23. Wisconsin Statutes § 970.03 (5). “The defendant may cross-examine witnesses against the defendant, and may call witnesses on the defendant's own behalf who then are subject to cross-examination.”

24. State v. O'Brien, 850 N.W.2d 8 (Wis. 2014), denying the defendant the statutory right to call the alleged victim as a witness because the defendant could not first prove, before putting the witness on the stand, that the testimony would be relevant for purposes of probable cause.

25. Defendant's Motion to Dismiss or Conduct Preliminary Hearing, 2005-CF-381, Manitowoc Co., Wis.

26. Order Denying Defendant's Motion to Dismiss Complaint or Conduct Preliminary Hearing, 2005-CF-381, Manitowoc Co., Wis.

27. Worse yet, and quite bizarrely, the judge doesn't even have to disclose—and in fact is discouraged from disclosing—the particular felony for which he found probable cause. Wittke v. State ex rel. Smith, 259 N.W.2d 515 (Wis. 1977).

28. State's Motion to Amend Criminal Complaint and Criminal Information, 2005-CF-381, Manitowoc Co., Wis.

29. Bailey v. State, 222 N.W.2d 871, 876 (Wis. 1974).

30. Avery's new, tacked-on charges were based on Brendan Dassey's statements that were extracted from him over the course of multiple interrogations. Under the probable cause standard, Dassey arguably should not have been considered a traditional citizen informant. Rather, Dassey was a suspect-turned-codefendant and was subjected to the coercive power of law enforcement. For purposes of a criminal complaint, therefore, his statements should not have been afforded the same presumption of truthfulness as those of a true citizen informant. State v. Paszek, 184 N.W.2d 836 (Wis. 1971), discussing the “unreliability” of certain classes of witnesses such as police informants who, much like codefendants, are expecting concessions for their statements.

31. Defendant's Motion to Dismiss Sexual Assault, Kidnapping, and False Imprisonment Charges, 2005-CF-381, Manitowoc Co., Wis.

32. Defendant's Motion for New Trial, pp. 5–13, 2005-CF-381, Manitowoc Co., Wis.

33. Ibid., pp. 1–2.

34. Ibid., p. 3, citing Sharp v. Case Corp., 595 N.W.2d 380, 388 (Wis. 1999). The civil court will review a split “jury verdict to determine whether it is fatally inconsistent….”

35. Wisconsin Statutes § 970.02 (1) (c).

36. Wisconsin Statutes § 970.02 (4).

37. See Wiseman and Tobin, Criminal Practice and Procedure, § 8.32, discussing the benefits of waiving a preliminary hearing, including preventing the prosecutor “preserving” a witness's testimony for later use at trial in the event the witness disappears or becomes uncooperative. Whether such testimony could be used at a later trial implicates the confrontation clause, and may hinge on whether the defendant had the opportunity for full cross-examination of the witness at the preliminary hearing—a complicated issue beyond the scope of this book.

38. State v. Burke, 451 N.W.2d 739, 742-43 (Wis. 1990).

39. State v. Cotton, 668 N.W.2d 346, 350 (Ct. App. Wis. 2003) (emphasis added).

40. This still leaves us with this question: with no evidence having been adduced at a preliminary hearing (because the preliminary hearing was waived), to what, then, are the new charges transactionally related? Most judges assume that a transactional relation to something in the criminal complaint is sufficient. This interpretation, however, would give felony defendants fewer protections than misdemeanor defendants—something that is clearly not legally proper and was never intended by the legislature.

CHAPTER 10: BAIL OR JAIL?

  1. Jason Stein and Patrick Marley, “Republican Lawmakers May Try to Resurrect Bail Bonding,” Milwaukee Journal Sentinel, May 18, 2013, http://www.jsonline.com/news/statepolitics/republican-lawmakers-may-try-to-resurrect-bail-bonding-k19vhej-208017101.html (accessed April 29, 2016).

  2. Defendant's Motion to Modify Bail, 2005-CF-381, Manitowoc Co., Wis.

  3. Wisconsin Statutes § 969.01 (4).

  4. Wisconsin Statutes § 969.01 (1) (emphasis added).

  5. Wisconsin Statutes § 969.01 (4) (emphasis added).

  6. Ibid.

  7. Defendant's Motion to Modify Bail (emphasis added).

  8. See Daniel Massey, “City Pays Big Price for Minor Crimes,” Crain's New York Business, December 3, 2010, http://www.crainsnewyork.com/article/20101203/FREE/101209955/report-city-pays-big-price-for-minor-crimes (accessed April 29, 2016).

  9. Wisconsin does have a speedy trial statute. However, the deadlines are often disregarded, as the statute allows for continuances in the judge's discretion. Wis. Stats. § 971.10. Other speedy trial protections, including the constitutional right to a speedy trial, are rarely triggered in state cases, even after a delay of several years. Barker v. Wingo, 407 U.S. 514 (1972).

10. Defendant's Motion to Modify Bail.

11. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

12. Wisconsin Statutes Ch. 969.

13. Wisconsin Statutes § 946.49.

14. Daniel E. Chojnacki, Michael D. Cicchini, and Lawrence T. White, “An Empirical Basis for the Admission of Expert Testimony on False Confessions,” Arizona State Law Journal 40, no. 1 (2008): 17.

15. Defendant's Memorandum Supporting Exclusion of Jail Statements and Tapes, p. 3, 2015-CF-381, Manitowoc Co., Wis.

16. Demos and Ricciardi, Making a Murderer.

17. State v. Avery, 414 N.W.2d 319, *15 (Ct. App. Wis. 1987).

18. Defendant's Motion to Modify Bail.

19. Defendant's Notice Concerning Interference with Right to Counsel, 2005-CF-381, Manitowoc Co., Wis.

20. Ibid.

21. Ibid.

22. Wisconsin Statutes §969.01 (4).

23. Ibid.

CHAPTER 11: INTRODUCTION TO LEGAL ETHICS

  1. This phrase reflects the general disregard for ethics rules not only in the legal system, but in other professions as well. For an example, see Max Brantley, “Ethics, Schmethics: Legislators Keep Junketing,” March 27, 2016, Arkansas Blog, http://www.arktimes.com/ArkansasBlog/archives/2016/03/27/ethics-schmethics-legislators-keep-junketing (accessed April 29, 2016).

  2. Supreme Court Rules (SCR): Chapter 20, https://www.wicourts.gov/supreme/sc_rules.jsp (accessed April 29, 2016).

  3. SCR 1.9 (c).

  4. Ibid.

  5. Michael D. Cicchini, “On the Absurdity of Model Rule 1.9,” Vermont Law Review 40 (2015): 69.

  6. In the Matter of the Petition of Michael D. Cicchini and Terry W. Rose to Modify SCR 20:1.9 (c) [15-04], Wisconsin Court System: Supreme Court Rules: Pending Petitions, https://www.wicourts.gov/scrules/1504.htm (accessed April 29, 2016).

CHAPTER 12: THE EFFECTIVE ASSISTANCE OF COUNSEL

  1. Supreme Court Rules (SCR): Chapter 20: Preamble: A Lawyer's Responsibilities, ¶ 2, https://www.wicourts.gov/supreme/sc_rules.jsp (accessed April 29, 2016).

  2. SCR 1.3, ABA cmt., ¶ 1.

  3. SCR 1.1.

  4. SCR 1.4.

  5. SCR 1.6.

  6. This two-part test is cited in nearly every Wisconsin appellate and supreme court case dealing with a defendant's “ineffective assistance of counsel” claim, and is based on Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., State v. Johnson, 449 N.W.2d 845 (Wis. 1990).

  7. Ibid.

  8. State v. Dassey, 827 N.W.2d 928, ¶ 8–9 (Ct. App. Wis. 2013).

  9. Ibid., ¶ 9.

10. Ibid., ¶ 11.

11. Brief of Defendant-Appellant, pp. 29–40, Case No. 2010AP3105CR, Court App. Wis., Dist. 2.

12. Although not revealed in Making a Murderer, “O'Kelly told Dassey that his inconclusive polygraph results showed a ninety-eight percent probability of deception.” State v. Dassey, 827 N.W.2d 928, ¶ 10, n. 2 (Ct. App. Wis. 2013) (emphasis added).

13. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

14. State v. Dassey, 827 N.W.2d 928, ¶ 11 (Ct. App. Wis. 2013).

15. Brief of Defendant-Appellant, p. 40 (emphasis added).

16. Ibid. (emphasis added).

17. Ibid. at 36 (emphasis added).

18. State v. Dassey, 827 N.W.2d 928, ¶ 11 (Ct. App. Wis. 2013).

19. Ibid.

20. As explained in the postscript, the federal district court reversed Dassey's conviction, but the state of Wisconsin has appealed the case to the federal appellate court for the Seventh Circuit.

21. State v. Dassey, 827 N.W.2d 928, ¶ 11 (Ct. App. Wis. 2013).

22. Office of Lawyer Regulation v. Kenneth Kratz, 851 N.W.2d 219, 222-23 (Wis. 2014).

23. For a discussion of the political nature of state bar associations, see Mauricio R. Hernandez, “Tamales and State Bars,” Irreverent Lawyer, November 21, 2015, discussing the inherent conflict in “mandatory bar associations [that] claim to be both public protection regulators and trade associations for lawyer interests,” https://lawmrh.wordpress.com/2015/11/21/tamales-and-state-bars/ (accessed April 29, 2016); David Cameron Carr, “The Great Public Protection Perpetual Motion Machine,” Kafkaesq, January 11, 2014. “It is politically incorrect now to suggest that the State Bar do something that might only benefit its members.” https://kafkaesq.com/2014/01/11/the-great-public-protection-perpetual-motion-machine/ (April 29, 2016).

CHAPTER 13: THE MINISTER OF JUSTICE

  1. When I first started practicing criminal defense, Wisconsin was moving to its draconian “truth in sentencing” law. At a continuing legal education seminar about the law change, one of the truth-in-sentencing committee members told the attendees that, because there were so many different crimes (not all of which were located in the criminal code), they could not guarantee that they had located all of them during the course of their reclassification of crimes and penalties.

  2. Wisconsin Supreme Court Rules (SCR) 3.8, ABA cmt., ¶ 1.

  3. SCR 3.6 (b).

  4. SCR 3.8 (f).

  5. For the dates and details of the government's “media tour,” see Defendant's Memorandum Supporting Motion to Dismiss, 2005-CF-381, Manitowoc Co., Wis.

  6. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

  7. Ibid.

  8. Ibid.

  9. Ibid.

10. Ibid.

11. State's Response to Defendant's Motion to Dismiss (Pretrial Publicity), Case No. 2005-CF-381, Manitowoc Co., Wis.

12. SCR 20:3.6 (d).

13. State v. Avery, 414 N.W.2d 319, *15 (Ct. App. Wis. 1987), upholding Avery's conviction in part because Beerntsen's “identification of Avery was corroborated by Avery's statements at the time of his arrest.”

14. The documentary revealed that, at a minimum, Avery talked to Colborn before his arrest and to interrogators after his arrest. He even let the sheriffs search his property, twice, before they ever got a search warrant.

15. Douglass J. Soccio, Archetypes of Wisdom: An Introduction to Philosophy, 8th ed. (Boston, MA: Wadsworth Cengage Learning, 2010), pp. 74–75 (emphasis added).

16. Demos and Ricciardi, Making a Murderer.

17. Ibid.

18. Wisconsin Criminal Jury Instructions No. 140.

19. Office of Lawyer Regulation v. Kenneth Kratz, 851 N.W.2d 219, 222–23 (Wis. 2014).

20. Ibid., p. 220.

21. Ibid., p. 224.

CHAPTER 14: THE POLITICS OF LEGAL REFORM

  1. Wisconsin Criminal Jury Instructions No. 140 (emphasis added).

  2. Michael D. Cicchini and Lawrence T. White, “Truth or Doubt? An Empirical Test of Criminal Jury Instructions,” University of Richmond Law Review 50 (2016): 1139.

  3. Michael D. Cicchini, “An Alternative to the Wrong-Person Defense,” George Mason University Civil Rights Law Journal 24 (2013): 1, 23–25. Citations and footnotes within the article have not been reproduced in this excerpt. For the full article, including original citations and footnotes, visit the articles page of www.CicchiniLaw.com.

  4. Anthony J. Domanico, Michael D. Cicchini, and Lawrence T. White, “Overcoming Miranda: A Content Analysis of the Miranda Portion of Police Interrogations,” Idaho Law Review 49, no. 1 (2010): 18–21. Citations and footnotes within the article have not been reproduced in this excerpt. For the full article, including original citations and footnotes, visit the articles page of www.CicchiniLaw.com.

  5. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

  6. Ibid.

  7. Ibid.

  8. Wisconsin Statutes § 941.375.

  9. 2015 Assembly Bill 357, https://docs.legis.wisconsin.gov/2015/related/proposals/ab357.pdf (accessed May 1, 2016).

10. Ibid. (emphasis added).

CHAPTER 15: A CLOSING ARGUMENT

  1. Moira Demos and Laura Ricciardi, Making a Murderer, dir. Moira Demos and Laura Ricciardi, aired December 18, 2015 (Los Angeles: Synthesis Films and Netflix).

  2. Wisconsin Criminal Jury Instructions No. 140 (emphasis added).

POSTSCRIPT: UPDATES ON AVERY AND DASSEY

  1. Defendant's Motion for Post-Conviction Scientific Testing, 2005-CF-381, Manitowoc Co., Wis.

  2. Ibid.

  3. Dassey v. Dittmann, 2016 U.S. Dist. LEXIS 106971, *110.

  4. Ibid.

  5. Ibid., p. *111.

  6. Ibid., p. *57.