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‘Making a Murderer’ attorney sees reform taking root

September 21, 2016

Jerry Buting, one of the defense attorneys at the center of the documentary “Making a Murderer,” has always had an affinity for the underdog.

For 35 years he has defended the accused, first as a public defender just out of law school and now in private practice at his Wisconsin firm of Buting Williams & Stilling S.C. The start of his legal career in 1981 coincided with the crack cocaine epidemic that fueled the trend of locking away individuals for lesser crimes and longer prison terms. Even the juvenile justice system became more punitive and resources going into public defenders’ offices dropped.

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However, over the past couple of years, Buting has noticed a budding counter-trend. People are starting to question how police do their jobs and to rethink mass incarceration. Also for the first time in his life, he is hearing both presidential candidates talk about criminal justice reform.

“I’m optimistic that the pendulum may be swinging back and that people may be taking another look at what’s going on in their courthouse,” he said. “Ultimately, it’s going to be up to the people to demand change to get real change.”

One of the things helping to fuel the movement is “Making a Murderer.” Buting had no idea the documentary series would rivet so many people and ignite such an interest in the criminal justice system.

He expected viewers would watch the film then forget it, but instead, the public is wanting to know more and foster change. So to keep the conversation going, as he explained, Buting and his co-counsel Dean Strang have been participating in town hall-style meetings in 20 cities around the country and recently in Europe to talk about crimes, courts and jails.

“Others maybe would have been more eloquent and, frankly, more deserving, but we’re the ones that were handed this microphone where people suddenly wanted to hear a lot of the things that we have been saying to other lawyers for years and years and years,” Buting said. “… The general public has woken up now, we have their attention, and we felt like we really needed to take the opportunity. It really would be a huge mistake for us not to do that.”

Buting is coming to the Indiana State Bar Association’s 2016 annual meeting in Indianapolis to continue the discussion. He will be the featured speaker at the keynote dinner Sept. 29. He will talk about the Steven Avery case featured in the documentary and criminal justice, but he hopes to hear thoughts and experiences of Indiana attorneys.

His former law school professor, Norm Lefstein, now professor at Indiana University Robert H. McKinney School of Law, will moderate the discussion.

Hard day’s work

Buting described himself as practicing during a “fairly dreary period” and acknowledges it has been easy to fall into despair. As punishments have become harsher, the parameters of what constitutes a win for the defense have shifted. Success may be the defendant getting a two-year sentence even though years before the punishment for that same crime would have been probation.

Still he has continued fighting in the courtroom because he wants to help the person in the most agonizing of circumstances.

“I don’t think anybody’s more of an underdog than somebody who’s has been charged with a crime,” Buting said. “They need someone to stand up for them, to give them a voice.”

As a young boy growing up in Indianapolis, Buting learned about the law by watching his father, a patent attorney for Eli Lilly and Co. Buting graduated from Indiana University in Bloomington with a degree in forensic studies then headed to the University of North Carolina School of Law.

Buting took criminal law and criminal procedure from Lefstein, who was teaching at Chapel Hill at that time. After he received his J.D. and began his practice in Wisconsin, Buting wrote to his former professor to let him know his class influenced the decision to go into criminal law.

The case that raised Buting’s public profile was the defense of Steven Avery of Manitowoc County, Wisconsin. Avery’s arrest, trial and conviction in 2007 for the murder of a local photographer was the subject of “Making A Murderer.”

A letter from Buting, mentioning his newfound fame, confused Lefstein. The professor first turned to Google then subscribed to Netflix to watch the 10-part documentary. Lefstein could tell the case was very difficult for the defense to win and that Avery was difficult to defend, but he believes Buting and Strang “did an admirable job of presenting the details.”

Avery had served 18 years in state prison for sexual assault and attempted murder before being exonerated in 2003 by DNA evidence. He filed a $36 million civil lawsuit against the county for his wrongful conviction and eventually settled the case for $400,000.

After his arrest for the death of the photographer in 2005, Avery was found guilty of first-degree intentional homicide following a six-week trial and was sentenced to life in prison.

Avery’s nephew Brendan Dassey also was convicted of first-degree intentional homicide and sentenced to 41 years in prison. However, in August a federal judge overturned his conviction, noting there were “significant doubts” as to whether his confession to police was reliable.

At the ISBA annual meeting, the Young Lawyers Section is sponsoring a panel discussion on the Dassey case at 2 p.m. Sept. 29. A panel that includes Frances Lee Watson, professor at IU McKinney and Dassey’s attorney, Steven Drizin, will examine coerced confessions.

Sustaining reform

The documentary began filming shortly after Avery was arrested and followed the story for the next 10 years. Buting and Strang were hired by the defendant about four months into the case but were initially hesitant about cooperating with the filmmakers. He changed his mind, Buting said, when he saw the purpose was to use this particular case to turn a lens on the criminal justice system as a whole.

Buting realizes fame is fleeting and does not expect audiences to keep turning out to see him and his colleague speak. He wants to capitalize on the public interest since he sees a real thirst for information about the criminal courts and a growing embrace of reform.

To help keep the momentum for change, he said other lawyers will have to join the conversation. They will have to educate and work to restore people’s faith and respect for the law.

“When people come away feeling like it’s not fair, it’s not just they lose respect for the law,” Buting said. “When they lose respect for the law, not only are they more likely to violate it, but they’re not likely to support it financially either. So you see this self-perpetuating thing of people saying only the rich have a chance and poor people lose.”•

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