03:39 - Source: CNN
'Making a Murderer' lawyer on documentary's bias

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Danny Cevallos: Fans of a Netflix series have petitioned for pardon of its main subject, but they're likely to be disappointed

Steven Avery can only be pardoned by Gov. Scott Walker, and he says he won't do it

Editor’s Note: Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

CNN —  

I’m in the throes of addiction.

It turns out I’m not alone.

At least 430,000 others are hooked on “Making a Murderer,” a Netflix docuseries about the trials and convictions of Steven Avery in Manitowoc County, Wisconsin. The documentary follows the investigation, trial and conviction of Avery for the 2005 rape/murder of a young female photographer, two years after the Wisconsin man was released from serving an 18-year rape sentence when DNA evidence eventually exonerated him of that charge.

Of course, as with any documentary, the criticism is that it doesn’t tell the complete story. With this series, several alleged facts and pieces of evidence pointing in the direction of the defendant’s guilt were omitted. Nonetheless, the series has drummed up reasonable doubt among its audience: More than 430,000 people have signed online petitions to the Obama administration seeking a pardon for Avery.

A new twist in the already twist-laden series: filmmakers Laura Ricciardi and Moira Demos on Tuesday announced that a juror from Avery’s 2005 murder case in Wisconsin reached out to them to say the juror believed Avery was framed by law enforcement. According to the filmmakers, the juror never spoke up because the juror feared the repercussions, though the juror supposedly contends that there was vote-trading and possible coercion among the jurors.

So what are Steven Avery’s chances today? Can he obtain a pardon? In light of this new information supposedly from a juror, can the defense use this new information from a juror to attack – or “impeach” – the verdict?

First, can he obtain a pardon by appealing to federal or state executives? It’s a two-part question with a two-part answer: the first part is “absolutely not”; and the second answer is “almost certainly not.”

Only federal criminal convictions adjudicated in the U.S. District Courts and other federal courts may be pardoned by the President. After all, he’s only the President of the federal system. Constitutionally, the President cannot pardon a state criminal offense. No amount of petitions or signatures to the President will matter: the chief executive is powerless to pardon a prisoner like Avery, who was convicted in a Wisconsin state court.

What about the chief executive of the state of Wisconsin? That would be the governor, Scott Walker. And, while he technically has broad authority to do so, Walker has apparently granted zero-point-zero pardons since being elected, believing that these adjudications are best left up to the courts.

So Avery can be pardoned, but only by Wisconsin’s governor. His chances for a pardon went from slim to virtually none late Tuesday evening, when Gov. Walker indicated he would not pardon Avery.

What about the juror who has supposedly come forward? The Wisconsin Supreme Court has held that to attack – or impeach – a verdict, the new evidence must be (1) competent, (2) show substantive grounds sufficient to overturn the verdict, and (3) show resulting prejudice.

The problem in the Avery case is the first prong: competence. After a verdict has been reached, Wisconsin law prohibits a juror from testifying about the deliberation process, except when the testimony is about (1) extraneous prejudicial information that infiltrated the jury’s attention or (2) any improper outside influence on a juror.

So then, if there is no extraneous information, and no outside influence, Wisconsin law renders that juror-witness incompetent –unable – to testify about what transpired during deliberations. A convicted defendant therefore is barred from offering a juror’s evidence of anything upon any juror’s mind or emotions influencing a juror to be for or against the verdict.

In fact, a juror is even incompetent to testify about a juror’s mental processes in connection with deliberations.

This seems like a strict rule, but it is designed to preserve the sanctity of deliberations, achieve finality in litigation and also to discourage juror harassment after the fact by frustrated defendants looking for reasons to appeal.

How does this rule work in practice? By way of example, it is appropriate for a former juror to testify about what was said during deliberations in order to determine whether a juror gave false or incomplete responses on voir dire. This is because voir dire answers concern the person’s qualifications to be a juror, and do not relate to the actual deliberation process.

Another example of proper juror testimony about “external” information seeping into deliberations might be one juror telling the others she heard rumors that the defendant in a DUI trial had been convicted of multiple DUIs in the past, when that kind of evidence was never presented to the jury.

On the other hand, merely seeking testimony about what was said during deliberations and how it may have affected the verdict is forbidden by the rule.

Wisconsin courts have addressed this issue several times, including in a case where a juror stated that she had wished to vote not guilty but voted to the contrary because of “duress.” The court observed that this was specific testimony of her mental processes in the jury room by which she arrived at her verdict. As such, this is testimony of the effect of a “statement” or “anything” upon her mind or emotions. This is exactly what is forbidden by the rule; a rule designed to preserve the sanctity of deliberations.

It’s easy to talk about a clear difference between extraneous information, like a juror who does his own online research about the case or is fed information about the case from the outside (which a juror may testify about) and information intrinsic to the deliberation process and which occurs within the four walls of the jury deliberation room (which a juror may not testify about).

But even Wisconsin courts have acknowledged that distinguishing between testimony relating to a juror’s mental process and extraneous matters is difficult, and the line can be fuzzy.

Ultimately, it appears that even evidence of bitter disagreement or social pressure in jury deliberations is not enough to impeach a verdict in Wisconsin. There must be more; some external information or influence that infiltrated the jury – like a juror gossiping to other jurors about the defendant’s rumored (and inadmissible) past.

A juror simply complaining after the verdict that he or she felt pressured, or was worn down by argument, without more, cannot overcome the rule and cannot impeach the verdict. Still, it appears Avery has a better chance appealing his conviction than with a pardon – no matter how many people sign how many petitions.

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