Journal

Making a Murderer: Is our criminal appeals process any better?

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The factually guilty routinely ‘let off on a technicality’, while the factually innocent stay in prison

Making-Murderer

We’re now four months into the new year, and Netflix users are still talking about 10-part documentary series Making a Murderer.

Viewers were totally transfixed as filmmakers followed the trial, conviction and sentencing of Wisconsin-based uncle and nephew duo Steven Avery and Brendan Dassey, for their part in the murder of photographer Teresa Halbach.

Regardless of the jury verdicts, the world is not convinced that the pair committed the crime. Over 520,000 people are so shocked by the “injustices” of the case that they have called for Avery to be pardoned.

Developments keep on coming. Kathleen Zellner — Avery’s new lawyer — hit the press last week when she reportedly claimed to have found “a couple” of suspects she believes may be the true murderer. And now it’s been announced that Dean Strang, lawyer and all-round good guy from the series, will be getting his own spin-off show.

There’s a wealth of documentaries on Netflix and other video sharing sites. Making a Murderer was one of many to be released in December — so why is everyone still talking about it?

Because the story screams “something needs to be done here”. There is — at least in the eyes of the viewers — a good chance that Avery and Dassey are innocent. That the men have been framed, set up by the police, that the real murderer is still on the loose.

Spectators have been quick to pile the blame onto the US criminal justice system, with words like “corrupt” and “shady” being bandied around. We’re quick to shake our heads and condemn the system’s handling of the case, and the fact that the men are still locked up. But had the very same verdict been returned across the pond under the English courts’ jurisdiction, I’m not all that confident our criminal appeals system could handle it any better.

England has done its fair share of locking up innocent people — just look at the stories of Angela Canning and Sally Clark, and plenty others. As pointed out by criminal law lecturer Hannah Quirk earlier this year, the police are under intense media pressure to catch someone, anyone, and this institutional strain can lead to impulsive arrests.

The criminal justice system is far from infallible, and hence we have an appeals system to act as a procedural safety net for if and when things do go wrong. It’s pretty difficult to access: as pointed out by blogging barrister Dan Bunting, the US — compared to the UK, that is — “has much more to offer a convicted defendant” by way of appeal route. Here, there’s nowhere else to go but the Court of Appeal, and it’s not all that easy to get there. Very few reach the Supreme Court, and only then on technical questions of law.

But what might surprise the public more is the sort of cases that do reach the appeal courts. In law, it’s wrong to frame the conviction of a factually innocent person as a miscarriage of justice. The French legal system makes a distinction between an appel, an appeal on grounds of facts, and a cassation, an appeal on a point of law, but no such distinction exists in England. No matter what the media reports, miscarriage of justice victims are, in a surprising number of cases, factually guilty — but have managed to wangle themselves out of a hefty punishment because of a technicality.

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A conviction handed down in the Crown Court can be appealed in the Court of Appeal under s1 of the Criminal Appeals Act 1968. Under s2, the Court of Appeal can only allow an appeal against the conviction if it is “unsafe” — and it’s not the factual innocence or guilt of the convicted that determines this “safety”. In R (Adams) v Secretary of State for Justice, the Supreme Court made clear that the appeal courts’ jurisdiction concerns due process, not factual guilt. Lord Phillips went as far as to say that it a principle of “great constitutional importance” that the Court of Appeal cannot and does not make a declaration on factual innocence. While the factually innocent are left to rot, it’s the victims of due process errors that are reaping the benefits of the appeal courts.

So how do you go about appealing the conviction of an innocent person?

Enter the Criminal Cases Review Commission (CCRC). Set up in 1997, the CCRC is an “independent” public body that has the power to send a case — one that has already exhausted the judicial appeal route — back to the Court of Appeal, if this case is a suspected miscarriage of justice.

Hooray, sort of.

The CCRC parades itself as a wholly independent body, but that it is not. It is effectively shackled to the Court of Appeal. The CCRC cannot send a case back to the court unless it considers that “there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made”, under s13(1)(a) Criminal Appeal Act 1995.

Professor Michael Naughton quips that this test is a “statutory straightjacket”, because it means that a case can only be referred to the Court of Appeal if the appeal is likely to be successful. And, surprise surprise, appeals are more likely to be successful if granted on technical, legal reasons, and not because of factual innocence.

The situation is undeniably unjust. Just have a read of Attorney General’s Reference (No 3 of 1999), where the offender was able to appeal his conviction for the rape of a 66 year-old woman — described by Lord Steyn as “horrendous” and “of the utmost gravity” — because of a technicality.

Yet the reason for this discrepancy is depressingly predictable: judicial resources are scarce, and the Court of Appeal doesn’t want to busy itself with time consuming, fact-based appeals.

Disapprove and denounce the convictions of Avery and Dassey all you like, but it doesn’t seem our criminal appeals system is all too hot on factual miscarriages of justice either.

It’s difficult to see a way out of this hole. This certainly isn’t just a case of simple legal reform. Criminal trials are, and always have been, highly technical affairs — a shift in institutional focus is at best unlikely. The CCRC, on the other hand, is a recent development. It’s more amenable to change, more able to accept wide-ranging reforms, and more able to fulfill its public mandate.

So focus here. The Innocence Network UK has a pretty good suggestion — repeal the real possibility test, and replace it:

with a test that allows the CCRC to refer a conviction back to the Court of Appeal if it thinks that the applicant is or might be innocent.

Only then will we have a proper recourse available to the factually innocent, the Averys and Dasseys of England.

Sources

Naughton, M (2009). The Criminal Cases Review Commission: Hope for the Innocent?. Basingstoke: Palgrave Macmillan.

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28 Comments

Anonymous

“The situation is undeniably unjust. Just have a read of Attorney General’s Reference (No 3 of 1999), where the offender was able to appeal his conviction for the rape of a 66 year-old woman — described by Lord Steyn as “horrendous” and “of the utmost gravity” — because of a technicality.”

…is so obviously wrong, it suggests the author hasn’t bothered to “have a read” of the case herself. The fact it was an AG’s reference rather gives the game away.

The trial judge refused to allow reliance on DNA evidence and the prosecution case “collapsed”. Given that it took place in the days before the Prosecution had a right to appeal a terminating ruling, instead it referred the decision to the CA (with its decision being appealed to the HL). What that has to do with the powers of the CA on an appeal against conviction by a defendant escapes me.

Just Anonymous

Agreed. Just to add to that:

The trial judge held that, because of the breach, he had no discretion to admit the evidence. The CA upheld this decision, but the House of Lords reversed it, holding that trial judges, in such circumstances, could exercise discretion to admit such evidence.

The HL judgment itself is measured, refreshing and overflowing with practical common sense. It’s thus a great shame KK didn’t bother to read it before citing it.

Anonymous

To the layperson, this *is* a ‘technicality’. That’s the whole ruddy point! This is an article about a wildly popular Netflix documentary that made people question the US judicial system and the innocence/guilt of the parties involved. The whole bloody premise of this piece is that if a vaguely similar doc had been made here, would the public be left with the same questions? Whether or not the HL judgment is as gobsmackingly glorious as you describe, I’d bet my bottom dollar we’d be left screaming at the TV ‘but that’s not fair!’. I think KK has captured this dilemma well: perceived justice vs the justice system.

Anonymous

This post has been removed because it breaches Legal Cheek’s comments policy.

Anonymous

The problem with the US justice system as portrayed in Making a Murderer isn’t so much about rights of appeal – I do firmly believe that our criminal justice system is less likely to allow a similar case to be brought to Court, never mind leading to an actual conviction. Our system is not perfect but elements such as police misconduct, evidence tampering, pre-trial publicity, jury selection, ignorant/incompetent jurors etc. strike me as more of an issue in the US than here.

Just Anonymous

There’s so much wrong with KK’s substantive argument that it’s difficult to know where to start.

Firstly, there’s plainly no point having the CCRC refer defendants to the CA because it thinks they’re innocent if the CA can’t quash their conviction for the same reason. Accordingly, such referrals just waste the Court’s time.

Furthermore, it’s surely right that the CA has no power to make findings on factual guilt/innocence. Surely the jury must be the final word on such matters. They saw the trial. They observed the witnesses. I completely agree that juries are not infallible – but then, neither are judges. Why should the opinion of an Appeal Judge who did not witness the original trial be deemed more reliable and accurate than that of a jury?

Moving on, KK apparently draws a binary distinction between ‘factually innocent’ defendants and ‘victims of unfair due process’ defendants. She doesn’t seem to understand that an unfair trial is one of the key reasons why innocent people get convicted – hence why the CA rightly has the power to quash unfair convictions. Yes, as a result, factually guilty defendants might also get off on technicalities. However, that is a necessary price to pay for a free society where all people are considered innocent until (fairly) proven guilty.

Finally, KK blatantly hasn’t read Adams either and so doesn’t understand the proper definition of ‘miscarriage of justice’. I invite you to read the head note at [2012] 1 A.C. 48, which summarises the SC’s decision quite well.

In short, the mere fact that a conviction has been quashed as unsafe does not necessarily mean that a ‘miscarriage of justice’ has occurred (2). The defendant must show something more: namely, that he is innocent beyond a reasonable doubt or that (again, beyond reasonable doubt) he had no case to answer (1). In the context of new facts undermining the conviction, such facts establish the second criterion if they so undermine the evidence against the defendant that no conviction could possibly be based on said evidence (1).

Does this support the hysterical assertion that:

“No matter what the media reports, miscarriage of justice victims are, in a surprising number of cases, factually guilty — but have managed to wangle themselves out of a hefty punishment because of a technicality.”

I think not.

Anonymous

One thing’s for certain – the criminal justice system in the UK is not so easily influenced by the amateur jurist public and sensationalist media outlets than that of the US.

Anonymous

Wow, this really is piss-poor journalism.

‘Technicality’ is the sort of word that you expect to hear from the tabloids and the ill-informed.

As for ‘Disapprove and denounce the convictions of Avery and Dassey all you like, but it doesn’t seem our criminal appeals system is all too hot on factual miscarriages of justice either.’

1. Can we have some examples please. You know, evidence to support bold sweeping statements
2. I’m no 7th Dan grammar and punctuation expert, but even I know the difference between quotation marks and speech marks.

Anonymous

An article all about appeals on matters of fact which fails to mention s.23 CAA (containing the powers of the CACD to receive fresh evidence)???

Alex Aldridge

Excellent article, followed by lots of anonymous people clearly unsettled by how well this young journalist can write.

If you are so great, why not send us an article (in your own name)?

A Barrister

Alex, do you stand by the author’s interpretation of the AG’s Reference case?

No one minds mistakes but, make them in an article on a blog aimed at a profession paid to be pedantic, they’re bound to be pointed out!

Alex Aldridge

The whole point of the Journal is that we get different interpretations of the law which generate interesting debate. All I ask is that the debate is polite and constructive – as it usually is when older male writers author the articles. For some reason many of our readers appear to feel extremely threatened by Katie King.

Anonymous

It wasn’t an interpretation amongst a range of possible views, it was an utter misinterpretation based on not reading the case, not understanding the case, or a mixture of the two. Reproducing this in University essay would gain strong criticism, let alone on a blog aimed at lawyers.

Observer

This isn’t a university essay, thankfully. It’s a brilliantly engaging take on a much talked about law-related TV show, and it offers more insight than mainstream media outlets have. If I wanted detailed case analysis, I’d go to the law library.

Anonymous

We can and do differ on our opinion as to the brilliance of the piece. It doesn’t however, offer more insight than the mainstream media. It’s full of bald assertions and analysis based on misunderstanding.

Now, if I’m wrong and that is what more than the mainstream media have done, well hooray, but it’s a pyyrich victory.

Anonymoose

Hiding behind accusations that these are ad hominem attacks (which admittedly do frequently occur with most of your regular writers, regardless of gender or age) when in this case the commentators have provided substantive reasons to criticise the article comes across as foolish. The same goes for every time you jump up with remarks that people feel threatened or jealous. Unfortunately your readership is made up of law students and lawyers, a demographic known for being somewhat blunt and negative.

ANYWAY, as another commenter has remarked, even your “senior” external writers spark criticism when they make mistakes. May I suggest that you adopt some form of peer review prior to publishing? While more burdensome for both parties, it would undoubtedly improve quality and benefit junior writers by providing them with the opportunity for feedback prior to being ravaged by the mob that live in the comment section. You guys seem to have enough connections that I am sure it wouldn’t be too difficult to find a handful of academics or professionals willing to provide written feedback on drafts. Nothing too heavy, a single person in each case who has a bit of experience in the relevant area to provide comments would do wonders.

Just Anonymous

I see no evidence that KK’s articles get criticism merely because she’s (a) female or (b) young.

Ravi Jackson’s recent article on the House of Lords sparked vicious criticism, with several commentators suggesting that his stance was so ridiculous, it had to be an April Fools joke.

Furthermore, I and many others have lambasted the ludicrous UN judgment deeming Julian Assange to have been ‘arbitrarily detained.’ A judgment written exclusively by middle aged men.

So the suggestion that senior males get more respect here on LC is plainly false.

Speaking purely for myself, I criticised this article because it deserves criticism. I stand by my points, and I do not think I’ve said anything unreasonable at all. However, I welcome reasoned debate and discussion. That is why I comment here. If anyone (KK included) wishes to challenge what I’ve said, I heartily encourage them to do so.

Anonymous

You see no evidence, no. But you don’t moderate the comments, so I think the editor is in a better position than you on this one.

Just Anonymous

Err, not really. No comments have been removed on this article. If they had been, we would see a little notice saying they had been removed.

Thus your point obviously fails.

Anonymous

Judging by the quality of some of these articles, I don’t think they are edited at all.

Anonymous

Can I send an article on bad legal writing?

Anonymous

Will you be paying for such articles?

Anonymous

Umm, only of you pay for the content, Alex.

Anonymous

Yeah, you’re right. I’m gonna take my content to Buzzfeed or Huffpo or Indy Voices instead…Oh…wait…

Avery

Surely the problem highlighted in Making a Muderer revolves around investigation and the evidence that is admissible at trial, not rights of appeal? In which case you’d probably want to focus on the provisions of PACE?

Lord Lyle

I’d like to thank KK for this informative article.
I had to Google “making a murderer”, Netflix, Enduser and streaming”.

NB. TV is antithetical to law.

I wouldn’t mind writing the odd article for LC, but it would need heavy editing as I can cause wigs on the green

Lord Lyle

O, if the article amounts to a legal opinion, I should require £5,000 + VAT in advance.

J

What would you choose: life in prison if you plead guilty, or death if you plead not guilty, but found guilty? Tell me how this equates to justice! At least one can plead not guilty and have no fear of being put to death.

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