It’s all too easy to make a murderer … even in Scotland

brendanFOR a tantalising few months in 2016, it seemed Brendan Dassey was going to be freed. Some 10 years and 10 months after he was arrested on suspicion of rape and murder, an appeal against his conviction succeeded. However, the “Dassey freed” headlines and triumphant tweets proved premature, as the Attorney General of Wisconsin lodged an emergency appeal that kept him behind bars.

If the name Brendan Dassey is not familiar, you must not have been among the millions who spent 10 hours of the 2015/16 Christmas holidays glued to Making a Murderer, the Netflix documentary centred on the trials of his uncle, Steven Avery. The series became a word-of-mouth sensation as gobsmacked viewers learned how, having been wrongly convicted of rape and serving 18 years in prison, Avery was re-arrested and ultimately convicted of killing photographer Teresa Halbach.

Viewers are divided when it comes to the question of Avery’s culpability, with many suggesting the filmmakers presented a biased account of his trial that omitted the most damning evidence against him. But among those who suspect he may be a killer – and not just of the poor cat that he threw on a bonfire in his youth – there are many who nonetheless believe he should never have been convicted.

Viewers are divided when it comes to the question of Avery’s culpability

If Making a Murderer had been a fictional series it would likely have been dismissed as too far-fetched, with the arrest and interrogation of 16-year-old Brendan the point at which it officially jumped the shark. William H Macy might have picked up an Emmy nomination for his portrayal of Len Kachinsky, the lawyer appointed to represent him who could scarcely have done more to help the prosecution, but the actor playing prosecutor Ken Kratz would have sunk into obscurity after his hammy, panto-villain turn.

As the series reached its devastating conclusion, viewers in Scotland likely breathed a sigh of relief that they don’t live in Manitowoc County, or any other backward jurisdiction where police can plant evidence, the prosecution can concoct lurid crime narratives, confessions can be coerced and juries can be swayed. None of that could ever happen here. Right?

Not every miscarriage of justice is the result of a conspiracy. In some cases the police simply focus on one suspect to the exclusion of all others

It can and it has. The Miscarriages of Justice Organisation (MOJO) has been investigating potential wrongful convictions in Scotland since 2000, as well as helping to support exonerees on their release. It was established by Paddy Hill, one of the Birmingham Six, who served 16 years in prison for the 1974 pub bombings in which 21 people died. Hill has described been beaten and burned with cigarettes by police officers who were determined to find someone to blame, and his experiences are being turned into a play, I Confess, at the Citizens Theatre in Glasgow. But not every miscarriage of justice is the result of a conspiracy. In some cases the police simply focus on one suspect to the exclusion of all others, or the accused’s lawyers do a bad job with limited resources, or juries are led to believe that “special knowledge” of a crime can only mean one thing.

When Drumchapel teenagers Iain Murray and Brian Wilson stood trial for the rape and murder of Murray’s half-sister Alison, the court heard that both had confessed. When Wilson later claimed he agreed to sign a statement concocted by police “to get them off my back”, jurors could have been forgiven for being sceptical. This was 1986, some 30 years before viewers watched with horror as interrogators badgered and bargained with Brendan Dassey until he confessed to terrible crimes in the absence of any forensic evidence against him. Wilson’s IQ was found to be 73, identical to Brendan’s, and a professor of forensic psychology said his case had “the hallmarks of a coerced-compliant type of false confession”. Wilson died in 2009 at the age of 40. Another potential suspect in the case, Murray’s father, had committed suicide 12 years earlier on the eve of his trial for a string of sexual offences.

Those battling to prove their innocence must envy the attention paid to the Avery/Dassey case, but it may prove a double-edged sword

There is no 10-part documentary about this case, or that of Brendan Dixon and Pat Docherty, who were convicted of murdering Ayrshire pensioner Margaret Irvine on the basis of circumstantial evidence. Those battling to prove their innocence must envy the attention paid to the Avery/Dassey case, but it may prove a double-edged sword. Public outrage can help when it comes to funding fresh appeals, investigations and forensic tests, but it also has the potential to cause great embarrassment to authorities that are determined to protect the integrity of their systems at all costs.

So what can the average person do to minimise the risk of miscarriages of justice? Avery’s original trial lawyers Dean Strang and Jerry Buting, who visited Glasgow in October, had a surprising answer. They didn’t appeal for donations to innocence projects, or signatures on petitions, or legal aid reforms. Instead, their message was clear: don’t dodge jury duty. The justice system will never be perfect, as human beings are fallible, but if you receive a citation and start formulating your excuses, pause for a second to imagine that it was you in the dock, or your friend or family member. If you really can’t imagine it, look up the case of Sunny Jacobs. And count yourself lucky you’ve never found yourself in the wrong place at the wrong time.

A version of this article first appeared in The National.

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