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A Criminal Mind: Hit show highlights importance of appellate review

In the early days of 2016, it seems obligatory to opine on the hit Netflix documentary Making a Murderer. You either watched it or are now sick of friends talking about it. I don’t have the space here to weigh in on the various theories swirling around Steven Avery’s guilt or innocence. It’s clear that many things went wrong during Avery’s investigation and trial. However, I’d like to focus on how I think the show highlights the need for a rigorous process of post-conviction appellate review to ensure that if things do go wrong they’re capable of being fixed.

To recap, the series tells the story of Avery, a Manitowoc County, Wisc. man who served 18 years in prison for a rape he did not commit — but then had his post-exoneration freedom cut short by an arrest for murder, just as his wrongful conviction lawsuit against the county was headed to court. A young woman disappeared and was last seen at Avery’s house.

Her charred remains were found in a fire pit steps away from his front door. Her abandoned car was found on his property — with his blood and hers inside it. A key to her car was found in his bedroom. And so on. This was within days of two county police officers having been deposed in Avery’s civil suit. And as fate would have it, those same officers took on key roles in the new investigation.

Avery’s impressive defence team uncovered cogent evidence of police malfeasance, including possible evidence planting. The jury didn’t buy it.

The filmmakers believe this was a miscarriage of justice and advance a compelling case to this effect.

Knowing that Avery’s case had already been through multiple rounds of appeal, I went looking online for the appellate judgments in the hope that they could enlighten me.

I wanted to know how a panel of experienced judges would evaluate the apparently cogent evidence of police misconduct in the Avery investigation and how it would impact upon the ultimate validity of the verdict. On all the evidence, was it defensible for the jury to accept that the officers hadn’t planted at least some of the evidence and that Avery was guilty?

I didn’t find what I was looking for. The one substantial judicial opinion I was able to obtain — a 2011 judgment of the Wisconsin Court of Appeals — is almost entirely bereft of the kind of factual detail that would allow a reader to get any insight into Avery’s guilt or innocence.

The court rather briskly dismisses a Fourth Amendment claim and an allegation of procedural irregularity in the dismissal of one of the jurors.

Most concerning to me, the court also upheld the trial judge’s refusal to allow Avery to lead “third party suspect” evidence — that is, evidence that someone else may have committed the murder. The appeal court said this refusal was OK because none of the potential suspects had a motive to hurt the victim.

Well, as far as I can tell, neither did Avery. Suffice it to say that this judgment added nothing to my understanding of Avery’s guilt or innocence.

The other day I came across an excellent podcast on Making a Murderer, the first in a series by Ottawa lawyers Michael Spratt and Emilie Taman. Former Supreme Court justice Louise Arbour, one of our greatest criminal law jurists, is a guest commentator.

Because my line of work is largely criminal appeals, I was interested in Arbour’s comments on the crucial role of first-level appellate courts in ferreting out potential miscarriages of justice.

She speaks eloquently about the need for appellate courts to scrutinize the trial record in exacting detail, and to sometimes make the difficult call to order a retrial in circumstances where the public would rather see the case put to bed for good.

As it happens, Arbour was the author of R. v. Biniaris, [2000], our court’s leading decision on when an appeal court can deem a verdict of guilt to be factually “unreasonable.” Arbour held that an appeal court must not intervene merely on the basis of a “lurking doubt” about guilt, but that such doubt is legitimately a “powerful trigger for thorough appellate scrutiny of the evidence.” My concern is that “thorough appellate scrutiny of the evidence” is too often curtailed in favour of reflexive deference to the jury or trial judge. Our jurisprudence is replete with encomiums to the trier of fact’s “unique position” to determine credibility by seeing and hearing the witnesses in person. But what if this accepted wisdom is mistaken?

In prominent U.S. appellate judge Richard Posner’s recent book Reflections on Judging, he describes how recent psychological research has challenged the notion that seeing a witness in person — observing his or her demeanour — assists in making accurate credibility judgments.

This research suggests that common non-verbal clues to credibility are often misleading, and may hinder rather than help a rational evaluation of the content of the testimony. Review of a transcript may not be such a poor substitute for viva voce fact finding after all.

One of our Supreme Court’s leading judgments stresses how hard it is for a trial judge to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.”

To the court, this is a reason for deference. But what if the “complex intermingling of impressions” in fact gives the trier of fact little or no advantage over an appellate court judging the case from a transcript? In that scenario, privileging the trial judge’s ineffable determination of veracity over an appellate panel’s rational scrutiny of the written record raises a serious risk of mistakes going uncorrected.

The Avery jury may well have been impressed by the officers’ demeanour on the stand, but this shouldn’t preclude a searching review of whether their story was tenable. As Posner observes, there are still defensible institutional reasons for a reasonable measure of deference to first-level findings. But in matters of guilt or innocence, we need to do more to distinguish these valid pragmatic reasons from those that may give us false comfort in the accuracy of the result.


Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at mgourlay@hhllp.ca.


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