Online Exclusives

Dean’s Column: What “Making a Murderer” Can Teach Us About Human Bias

Earlier this spring, the Law School and our Rappaport Center for Law and Public Policy welcomed two celebrity guests to campus: “Making a Murderer’s” Dean Strang and Walter Kelly (BC Law ’68). In a wide-ranging discussion, the two attorneys detailed their representation of exonerated rapist and convicted murderer Steven Avery and their involvement in the hit Netflix documentary series, explaining for our student audience how they handled a case under tremendous media scrutiny.

Steven Avery was accused of the brutal and sadistic murder of Teresa Halbach, and of recruiting his teen-aged nephew as an accomplice. Investigators and prosecutors made detailed statements at press conferences outlining their theories of how Mr. Avery persuaded the boy to join him in committing the crime.

Mr. Strang said that the filmmakers were given an unusual level of access to his client—something that normally would have been unthinkable—because the Avery family insisted upon it. But perhaps the most important reason the legal team agreed to such access was to combat the unusually public attempts on the part of the prosecution to build a case against Mr. Avery through the media. The entire community seemed to have made up its mind about the Averys’ role in the murder long before the trial began. Ultimately, the documentary presented fairly damning evidence that the authorities had planted or otherwise manipulated evidence in order to make the case against Mr. Avery more compelling. All this occurred after Mr. Avery was exonerated for a rape he didn’t commit—a crime for which he served 18 years in prison, remaining locked up even after local authorities had good reason to believe that he wasn’t the perpetrator.

In higher education, we like to talk about “teachable moments.” So what does this case teach us about human bias in the criminal justice system?

All of us have biases. Our natural tendency is to attempt to make the facts fit our hypotheses, while ignoring information that is inconsistent with those hypotheses, leading us to make the wrong judgments. As Mr. Strang said during the panel discussion, when that kind of thinking error happens in the justice system, we can “end up with the wrong guy.”

Take eyewitnesses as one example. A growing number of overturned convictions through DNA evidence have forced us to take a harder look at the very deep flaws in eyewitness testimony. The concept plays into our natural tendency toward bias. Recent studies show that memory is not set in stone, but fluid. Our own reflections on past events and our conversations with others—often, with well-meaning law enforcement officers or prosecutors—can shift these memories and cause an eyewitness to positively identify the wrong suspect. This grows more troubling when we consider larger issues of racism and classism. Those kinds of biases can have very damaging consequences to the accused and to society.

The good news is, cries for reform are growing louder. We in legal education should play a key role in reshaping the system. The three BC law faculty members who led our “Making a Murderer” discussion—Professors Robert Bloom, Michael Cassidy, and Sharon Beckman—are national leaders in criminal justice reform. Professor Bloom has quite literally written the book on criminal procedure (several, actually, and with co-author and fellow BC Law professor Mark Brodin), as well as on the controversial role of government informants (see Ratting). Professor Cassidy, the faculty director of the Law School’s Rappaport Center (which sponsored the Strang and Kelly event), is a leader in criminal law, evidence, and professional responsibility. A former member of the Governor’s Commission on Corrections Reform, Professor Cassidy was recently appointed to the state Supreme Judicial Court’s Standing Advisory Committee on the Rules of Professional Conduct and helps train public sector attorneys across the country on their professional responsibilities. Professor Beckman serves on the SJC Standing Committee on Eyewitness Identification, the Board of the New England Innocence Program, and on the Criminal Justice Act Appellate Panel of the US Court of Appeals for the First Circuit. She co-directs our Criminal Justice Clinic and leads our growing Innocence Program at BC Law, a program that helped overturn a conviction and free a man who had spent 32 years in prison.

Professors like Robert Bloom, Michael Cassidy, and Sharon Beckman lead through scholarship and shaping policy decisions, but perhaps more importantly, they act as mentors to new generations of lawyers. Statistics show a steady decline in college freshmen interested in a law degree. We must do a better job of bringing our best and brightest to the law, illustrating the power of lawyers in the process and educating today’s youth about how they can play a vital role in societal change by assuming leadership roles in the legal profession—working to reform the system from the inside.

How we teach our students is crucial to the future of the criminal justice system. Will we stress equal justice, mercy, professional responsibility, discernment? Will they be prepared to make difficult decisions and enact change as our future leaders? Or will our graduates enter the profession striving only to win at all costs, prepared to use a flawed system to their own advantage?

“Making a Murderer” teaches us that human beings are not machines, and all of us are influenced by our own histories. As much as many of us would like it to be so, fundamental fairness in our judicial process simply does not exist. True and equal justice depends on our ability to question the notion of certainty and to recognize how easy it is to get things wrong. Our legal tradition decided long ago that when in doubt, we should err on the side of letting the guilty go free. As John Adams is reported to have said in his representation of the English soldiers accused of murder following the Boston massacre:

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, “whether I do good or whether I do evil is immaterial, for innocence itself is no protection,” and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Comments are closed.