I don't practice criminal law, and I don't know Wisconsin's criminal or ethics code. But here are some thoughts:
- I don't believe for a second that Dassey did anything illegal. He's a victim of a system that routinely chews people like him up.
- Avery may have committed the murder, but he should have gotten off from reasonable doubt. The judge either wasn't very able or has a bias toward prosecutors, as most judges do, based on his rulings. The cops also clearly tampered with evidence. The prosecution's expert witnesses were atrocious. The FBI crime lab guy and the lab test were a travesty. The Wisconsin lab woman's handling of the DNA was beyond inexcusable. This is the biggest case in her career, and she's supposedly training people and deviating from protocol for the first time in her career. The DNA should have been thrown out. If preponderance of the evidence is 51% certainty, clear and convincing evidence is 75-80% certainty, and reasonable doubt is 90-95% certainty, then there is no way jury members should be unanimously 90-95% certain that Avery committed the crime from what we saw.
- The criminal justice system is a very flawed system. Prosecutors have too much power, police interrogation tactics are flawed, and poor and/or stupid people are completely up sh*t creek in a system like this. Also, the quality of state district court judges varies wildly. Some are excellent. Some are so stupid that you would question how they got where they are. I'm very leery of counties with only one or two judges. The quality of the judges are generally weaker than bigger counties, and the good ole boy, parochial factor ratchets up quite a bit. If I had a client like Avery in such a county, I would be trying to change venue as fast as possible. If that didn't work, then I would have the judge removed if he was a poor judge. This is the one tactical question by Avery's team that I didn't understand. But I don't know Wisconsin law, so maybe they didn't have a good chance or any chance of succeeding. In Minnesota, you can remove the first judge appointed without question as long as you do it in a timely manner, before trial and certain hearings. Moreover, most judges are former prosecutors. They're naturally predisposed to the prosecution. Big city judges have more talent to choose from, but they're still hit or miss. The Federal district court judges are typically far superior.
- Never settle for a public defender unless it's your only option. It's not because public defenders are all bad attorneys, in fact, many of them good. The problem is, they handle a caseload that is too big to manage, so they cannot give their clients the best possible representation. Even though Minnesota hired more public defenders this year, they didn't hire enough. We probably need to hire another 75 across the state for public defenders to have a chance at defending their clients. Also, you'll never get a team of lawyers or access to first rate investigators and expert witnesses with a public defender (defendants often refer to them as public pretenders). If you're facing serious time, it's worth draining your retirement or other accounts if you have to in order to field good private defense attorneys. You don't need great attorneys like Friedberg or Colich for small time or mid-level offenses unless you can easily afford them. If you don't know who a good one is, check Super Lawyers. Anyone who earns the honor of Super Lawyer is held in high regard by judges and his peer attorneys. A very small minority of attorneys are awarded Super Lawyer status every year. 5% or less of all attorneys can be honored as a Super Lawyer. This is a great resource to find excellent attorneys who are just as skilled as those at the big law firms at a much cheaper rate due to lower overhead.
- Len Kachinsky should be disbarred. He's a stain on the profession.
- Ken Kratz is your typical small town prosecutor. He's very average in the courtroom, and he's interested in the appearance of justice. He abuses his power, but most prosecutors do. It's a systemic problem. Kratz is also borderline unethical in how he handles his prosecution. He's completely unethical for the text messages he sent. He probably should have been sanctioned by the Wisconsin Supreme Court with at least a suspension of his license.
- Prosecutors seeking conviction through the media are despicable. Gag orders should be mandatory for all pending matters in criminal court.
