When the Netflix true crime documentary series “Making a Murderer” premiered in 2015, it was an immediate hit, quickly becoming one of the most binged and most talked about shows on the streaming service.

The show fascinated the public with the compelling story of the murder trials of Steven Avery and his nephew Brendan Dassey and the lurid details of the 2005 murder of Teresa Halbach.

In addition to the criminal facts presented in the documentary series, “Making a Murderer” also raises a variety of ethical questions regarding pretrial and trial publicity, conflicting prosecution theories of guilt, disclosure of exculpatory information and potential conflicts of interest.

Dean A. Strang, one of two defense lawyers for Avery, took a look at these questions in his hour-long continuing legal education presentation, “Ethical Lessons from the Case in Making a Murderer,” which was part of the Nebraska State Bar Association 2020 Annual Meeting.

Strang opens the webinar with a brief history of Avery’s legal history, beginning with the 18 years Avery spent in prison for a crime for which he was wrongfully incarcerated. The Innocence Project used DNA evidence that was not available at the time of Avery’s 1985 conviction to secure his release in 2003.

Two years later, Avery was arrested again and charged with the sexual assault and murder of 25-year-old Halbach. His 16-year-old nephew, Dassey, was charged as an accomplice in 2006.

Strang breaks down his presentation into three sections, covering three American Bar Association Rules of Professional Conduct – Rule 3.3, Candor Toward the Tribunal; Rule 3.6, Trial Publicity; and Rule 3.8, Special Responsibilities of a Prosecutor – as they pertain to the Avery and Dassey cases.

Strang makes note of the fact that Dassey’s police interview provided the sole evidence for charging Avery with four additional counts, including sexual assault and forced imprisonment.

The day after Dassey’s arrest, the prosecutor held a news conference in which he detailed the alleged crimes that Avery committed with Dassey’s assistance, despite the fact that law enforcement found no trace evidence at the scene to corroborate Dassey’s story.

Despite relying solely upon the statement of a 16-year-old boy, the prosecutor did file those four additional charges against Avery. The defense team, including Strang, sought to have those charges dismissed for lack of evidence, which was granted, but only after the prosecutor painted a detailed, lurid picture of what Avery allegedly did to Halbach.

The prosecutor painted that picture in the news conference the day after Dassey’s arrest and also during opening statements of Avery’s trial. Strang said that jurors had been asked about Dassey’s allegations during voir dire and again heard the details during the trial before the judge ultimately dismissed those charge and instructed the jury to disregard Dassey’s story.

Strang questioned whether the prosecutor overstepped, if he displayed the required candor to the tribunal, in publicly detailing alleged crimes and repeating the allegations in his opening statement.

Strang gives an example of an ethical dilemma for Avery’s defense team. On the first night of jury deliberations, one of the jurors had to be excused, leaving 11 jurors. Under state law, the defense team had three options: allow deliberations to continue with only 11 jurors; insert one of the alternate jurors and ask the jury to start over; or to insist upon a mistrial and retry the case with a new jury.

The dilemma occurred after Stang and his co-counsel explained the options to Avery and asked him what he wanted to do. Strang notes that Avery wasn’t a lawyer, didn’t have an education beyond high school and, in Strang’s words, wasn’t “intellectually equipped” to fully understand the options put forth in the short period of time before a decision had to be made.

When court resumed and the judge asked defense counsel what option they had chosen, Strang said that they had elected to replace the excused juror with one of the alternates and have the juror start the deliberation process over.

The judge asked Avery himself if that was his wish. Avery affirmed that it was. The judge then asked defense counsel if Avery’s decision was well-informed, voluntary and that Avery understood the choice he made. Strang answered in the affirmative, though he admits now that he “wonders how much of that may have been fiction.”

Strang questions how much Avery truly understood when he was asked to decide between the three options and wonders if telling the judge that yes, Avery made a well-informed, voluntary and knowing decision was a violation of Rule 3.3.

Strang says that he believes he and his co-counsel did as well as they could “under the circumstances.”

Another issue, Strang said, is that the prosecution neglected to provide a full analysis of a hard drive to the defense team, instead stating in an email to defense counsel that “nothing of value was discovered.”

Strang says that he had the option to analyze the hard drive himself or have it sent to his own forensic expert and have them analyze it, but both of these options were costly at the time and Strang chose to go by what the prosecutor said in his email. Strang said that the analysis of the hard drive has been hidden from the defense team and is still in active litigation 13 years later.

Strang concludes by noting that prosecutor is an elected position and are there not only to advocate, but also have a higher “duty to seek truth and justice.”

“Ethical Lessons from the Case in Making a Murderer” is available as part of the NSBA Virtual Annual Meeting until June 23, 2022, and it counts for 1 hour of ethics CLE. It can be accessed via the NSBA OnDemand portal at nsba.mycrowdwisdom.com.