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Making a Murderer

By John DiGiacomo

In this episode our Asked and Answered podcast, we discuss the Netflix documentary series “Making a Murder,” its aftermath, and its effect on Internet law.

Show notes:

Don’t talk to police:

The right to be forgotten:

Ken Kratz’s law firm’s Yelp reviews:

Len Kachinsky’s new job:

The Streisand effect:


Big Blood – “Endless Peace”

Nmesh – “Starting Over”


Eric:                          Hello and welcome to the Revision Legal podcast, where we talk about legal issues in the online world and help people that make money online. I’m Eric Misterovich, partner with Revision Legal and joining me is John Di Giacomo. John, how are you?

John:                        I’m great. It’s been a long time since we’ve done one of these. We have not gone away. It’s good to be back.

Eric:                          It is. I missed our podcast. They’re fun to do. I think they’re useful to people and I’m happy we’re doing it again.

John:                        I am too and I’m really excited to do this one because I think a lot of people are going to be into it because we’re talking about making a murder, which is the hottest Netflix series right now.

Eric:                          It’s addicting. We started watching those. I think we finished it in probably three or four days but that was showing some restraint in going to bed at a reasonable hour because you start watching this and you just cannot get enough of it.

John:                        We watched it in a weekend. We did not show restraint. It was one of those weekend where we didn’t want to get out of bed, which we can do because we don’t have kids yet. I’m going to go with this. I only have a couple of more months of this left. Then it’s gone so I’m going to enjoy this binge watch.

Eric:                          Then you’ll be watching a lot of Frozen and minions and Cars. All the Pixar movies basically.

John:                        I can’t wait.

Eric:                          They’re actually not bad. Inside Out was really good. I love that movie.

John:                        I’ll check it out.

Eric:                          Making a Murderer. Everyone’s probably familiar with it. The story about the man Steven Avery who was accused of this sexual assault crime in 1985. He goes to prison for 18 years, finally it comes out that he was exonerated by DNA evidence. He’s out, he’s free, and he’s suing the county up in Manitowoc Country, Wisconsin for their actions to jail him wrongfully. There’s a lot of question marks as to the investigation that went into Avery. Things are not looking good for the country.

John:                        They didn’t look good at all. In 2005 he was then, he was suing the country at the time. He had this lawsuit for $36 million pending, and then he was arrested and charged in another murder. It all rose out of this photographer, who was a photographer for one of the car magazines. I can’t remember which one it was. Auto Trader I think. Theresa Halbach was her name, she came to his house, as she regularly did, because he and his family owned a junk yard and she was taking pictures of a car that he was going to sell and all of a sudden she disappears. It’s unclear as to whether or not he was the last person who saw her. The police, the same police who were previously involved in his wrongful conviction in 1985, are not investigating him for murder.

Eric:                          It’s just a swing of circumstances that’s hard to imagine. Being locked up for 17, 18 years, getting out and then all of a sudden he’s in a murder trial. We say this, all of a sudden he’s under murder trial, and it sounds like we’re saying he doesn’t deserve to be in a murder trail. Of course, he went through this trial, and we’ll go over some of the evidence and our thoughts on it. He was ultimately convicted so this idea of is it wrong? We’re stuck with this jury of his peers said he was the murderer. I know I won’t be able to help it. I’m going to be doing a lot of talking about this. It’s going to sound like I don’t think he should have been convicted, because I don’t. I think there was plenty of reasonable doubt, but now here he is, he’s a convicted murderer. He’s back in jail.

John:                        I agree with you. I think there’s a distinction to be made between did he do it, which is the question that we have no real certain answer too, and should he have been convicted based on the evidence that was presented? I think no, just like you do I suspect. The top thing is that we’re seeing this through a documentary. We don’t know what evidence was presented. I know that the special prosecutor in the case, Ken Kratz, has come out and said that 90% of the evidence was not disclosed in the documentary and obviously we’re making these decision or having this discussion on the basis of evidence that was presented to use in an informal fashion, but based on what we’ve seen it’s pretty interesting.

Eric:                          I know there’s more evidence. I know the movie is one sided. I’ve read some articles about some of the other evidence.

John:                        Not good?

Eric:                          It doesn’t clear anything up. There’s some stuff that I think make Avery look a little more suspect. I guess he called her a couple times and protected his phone number and then apparently called her after she was supposedly disappeared and did not protect his phone number, like he was trying to build an alibi. He answered the door in a towel before when she arrived and I think he called and specifically requested her to come a couple times from the magazine. I don’t know, to me that’s nothing compared to the questions that the defense raise. Everyone can talk about this and everyone gets a great idea to play attorney, to play juror and to look at all this evidence and think about it, and I think what is maybe useful for us to talk about is this was the first time that many people are exposed to the courtroom, the criminal procedure process and how attorney’s can use the burdens that they’re either up against or the power that they have to do their job and we see here, I think everybody was pretty impressed with the job that these defense attorney’s did. They seem to uncover every stone they could and they seemed to be approaching it from such a logical and thoughtful position. Then you have the prosecutor, which everyone, according to the Yelp reviews we’re going to talk about later, was disgusted with.

John:                        Absolutely. The defense attorneys, I’m sorry I don’t have their names in front of me, who represented Avery I thought were just incredible. You know me, I’m skeptical of attorney skill sets and I like to bash bad attorney’s frequently but their ability to think and speak on their feet that I just sat there in awe and I thought, “This is the type of attorney that I want to be ten years from now.” It was just so incredible.

Eric:                          I thought that they just seemed to be able to undercut the evidence that the prosecutor presented at every step.

John:                        Very eloquently too which is very difficult because jurors are necessarily always high intelligent but they clearly communicated to the jurors why that burden was not met.

Eric:                          I agree. Then the actions of attorneys, good attorneys, bad attorneys, you know we’re not here to make any final judgements on this but the prosecutor going out and giving a long press conference going into detail about a confession that was clearly not a true confession from a essentially mentally incompetent 16 year old was a terrible decision.

John:                        It was a horrible decision.

Eric:                          It’s not just that was a bad decision, I think it was probably not the right thing to do when you hold the power as the prosecutor.

John:                        We should get into that more deeply. This trial happened in 2007 and it was prosecuted by a special prosecutor, Ken Kratz, who was from [inaudible 00:09:00] Country, which is a different country than Manitowoc County where this crime occurred. The reason this guy, Ken Kratz was brought in was because there was some skepticism as to whether or not Avery could get a fair trial within Manitowoc County because he was previously wrongfully convicted there. [crosstalk 00:09:21]. Absolutely. This Ken Kratz comes in. He obviously, he’s intrigued by the media and he gives this press conference later on in a second trial that just, it was not a good idea by any means. Should we discuss, what is he cousin? Brendan Dassey?

Eric:                          Dassey is apparently, Steven Avery the prime suspect, Brendan Dassey is his cousin. He lives on the same, essentially, property. He’s 16 and for all accounts he is of diminished mental capacity.

John:                        I think they said he had an IQ of about 70.

Eric:                          The cops bring him in and he gives some statements and he doesn’t really say anything of value and then they kind of bring him in again and again and the videotaped confession of this guy. It’s appalling. The officers are just feeding him what to say and this kid is clearly trying to say whatever they think they want to hear. He is just trying to appease the officers. He has no idea of what’s going on. He thinks he’s going to go back to class.

John:                        He thought he was going to go back to class. That is the most surprising component of it. He thinks now that I’ve given you the answers that you needed, can I, I think he had a project or something like that.

Eric:                          He had a project in sixth hour and he thought if he told the cops that he was involved in the rape and murder of a woman, he was just going to go ahead and do his class project. He had no idea who was on his side, who was not on his side. They didn’t really go into whether or not they had the parents permission. I know the cops said they did. Demont disputed it. That wasn’t really brought up a whole lot. It’s just amazing that a prosecutor would take that statement and go to the press and that statement was also during trial and this table of Dassey and slitting Theresa’s throat and shooting her and all of this stuff. There’s no possible way that is true because there’s absolutely no evidence to support it.

John:                        That’s really the top part. It’s that if these things occurred where’s the physical evidence. For example, Dassey testifies to she was chained to the bed and then I raped her. Again, these are all components of a very coerced confession that you can only get the sense of if you watch the video. Thankfully it was recorded. He testifies that he then slit her throat on the bed. Where’s the bed? Where’s the blood evidence? You don’t slit somebodies throat on a bed and not have any DNA evidence. Then when you test the surrounding area and you find other DNA that is not tying this individual to the murder, it tells you that the scene wasn’t clean. All of the inferences that you would expect to see from that type of evidence are entirely absent but yet you relied on this confession, not only in a press conference but also to prosecute two individuals and to give them ultimately life in prison. That’s just absolutely insane to me.

Eric:                          It’s impossible to clean the scene. The house is a disaster.

John:                        It was a disaster.

Eric:                          Stuff everywhere. It would be impossible to clean it unless you just took everything out and it would be impossible. If you really shot someone in there or slit someone’s throat there’s going to be blood everywhere. The fact that there was just none, it’s just how there were so many enormous holes in the prosecutions theory of the case that it was so depressing to see that they were convicted.

John:                        I completely agree. One thing that struck me as incredibly odd was there was this missing, this deleted voice mail. I keyed in this on this because we do a lot of electronic evidence work. I’m thinking to myself this cell phone was turned on at some point. The cell phone has to triangulate between these cell phone towers. There are these triangulation records that are associated with a cell phone tower that will tell you a relative position of where this individual was. The cell phone was on. Somebody checked the voice mail. Where is that evidence? It seems like the prosecution didn’t even both to get it. They just ignored it. Maybe that’s a component of the documentary not giving us all the information, but things like that would have told us a lot more about where was this person when they died? Where they even on the property? Would the cell phone provide evidence that they were on the property? It seemed like so many holes there.

Eric:                          Definitely. I know, was it her ex that admitted to checking her voice mail?

John:                        He did.

Eric:                          He didn’t delete anything.

John:                        The other thing that I bother mention before I forget about it, and you might have picked up on this too but there’s a distinct difference between Avery’s defense and Dassey’s defense and that difference had everything to do with money. Avery’s defense was so much more sophisticated and they were able to obtain so much more evidence because of Avery’s ability spend a significant amount of money on his defense that it was like night and day and the for the pp who are listening, Avery was able to spend this money on his defense because he was forced into settling, at least from my perspective, forced into settling the lawsuit against the county. It almost felt as though the county had asserted this leverage on him. He settled it for around $400,000 and he turned around and used that directly for his defense. Then you’ve got Dassey who had no defense. If I was defending Dassey and he was paying me money I probably would have hired and expert as to testify to his capacity as an individual and then I would have hired and expert on coerced confessions. None of those things appeared in that documentary which indicates that they didn’t exist. It tells me that there was a vast disparity and the level of defense that was given because of the lack of money.

Eric:                          You’re completely right. Court appointed attorneys and retained counsel, it’s usually a matter of time and resources that they’re able to devote to the case. It’s not saying all court appointed attorney’s are bad, it’s usually a matter of time.

John:                        It is.

Eric:                          That they have too many files to dedicate a lot of time to one. I’ve had a lot of people ask me should I get a court appointed attorney or not? For the somewhat routine DUI, or maybe drug possession charge, or something like that, court appointed attorney’s can do a terrific job. Number one, they’re the people that know the prosecutor’s the best and the judge’s the best. They’re there every day and all day. Court appointed attorneys’ they’re not any less qualified of attorneys as when you pay someone a lot of money they can block out everything and they can dedicate a lot of time to file. That’s the huge difference. There was, in Dassey’s case, what I would have wished would have happened was the Northwestern Walk clinic that got so involved in the post trial motions, where were they for the trail.

John:                        Absolutely. I said exactly the same thing.

Eric:                          They said they already knew about it and they were watching it. It would have been a lot more useful to be at the trial. You’re up against a post trial motion, nothing is going to be in your favor. I wish they would have been there for the trial.

John:                        It’s the Sisyphus problem. You’re trying to push a boulder up a hill at post trial where at trial it’s just nothing like that at all. Just to make the point clearer, you represented a murderer in an acquittal. You were in a case like this. What kind of time are we talking about for preparation?

Eric:                          Alleged murderer.

John:                        Thanks for catching that.

Eric:                          It’s incredible. When you have someone’s life in on the line. If they lose they are going to prison for their entire life you spend all the time you have on it. I think when you’re dealing with criminal trials like this and a lot of it comes down to testimony from other people it becomes a bit of a circus. As compared to a lot of civil trials where you’re dealing with documents, you’re dealing with hard proof that this, I lost this much money after you breached this agreement. You’re relying on people’s memory and what they’re going to say in court and how they appear in court and can they be believed, does the jury believe them? It’s really a fascinating process but it’s a heavy weight to help as an attorney, to have that kind of responsibility.

If you cannot defend this person they’re going to go to jail for the rest of their life. In our case it was our defendant was alleged to essentially be a part of aiding and abetting a shooting by making certain phone calls and we were able to cast reasonable doubt as to whether or not he was really directing the hit. It was super fulfilling but it was incredible time commitment of two or three attorneys, were working on it. We were court appointed at that point. We did our job. I think it was one of the first not guilty’s in a first degree murder case in a long time.

John:                        It was 100 years wasn’t it?

Eric:                          It was fun.

John:                        It stays with you forever. Like any big case, I obviously do civil stuff but I’ve had cases like that where it’s stays with you forever. You can see it in the eyes of the defense attorneys in this documentary because even far after they were no longer getting paid. They were still so upset about it and they felt like justice hadn’t been done. I’m sure they’ll think about it for through est of their lives. You’re so invested in that time and you’re so invested in that client. It’s something that the public would never really understand about what we actually do.

Eric:                          When we go to bed thinking about our cases, and wake up in the middle of the night thinking about them. They do stay with you. You think about what if you would have done that differently or did I request this? Did I receive that? It’s an all consuming job and we always laugh at some days you question why you are an attorney because it is very very stressful and it’s a tough job sometimes. You have these cases that you pour your all into and then you get the exact outcome you don’t want. That’s really demoralizing.

John:                        It really is. If anyone ever tells you that attorney’s done lose or that they have a completely winning record then they’re lying to you, because we do.

Eric:                          This case was a lot about what happens when the state comes after you with the power of the state. There’s a video on YouTube. We’ll try to find it and put it in the show notes of why you should never talk to cops. I think it’s about 45 minutes long but it’s a law professor that puts out these scenarios. Doesn’t matter if you had nothing to do with it. The way you answer questions can incriminate you. Even if you had nothing to do with it. Always, he advises, never talk to the police. Make them have an attorney, you have to have an attorney present. Don’t have Lem [inaudible 00:22:24] as your attorney but the power of the state, when they can trot off witnesses in full police uniforms and they get up there and testify, the public wants to believe cops. That’s all there is to it. I think this jury, there was a wrong. This woman died. She was killed. There was, and they probably wanted to correct that.

John:                        There was definitely a sense of this Avery family as being outcasts of that community and regardless of whether or not they had done it there was at least some underlying sense that they needed to be excluded from that community. It was a small town. Of course, police authority is respect. It should be, but you’re right the general rule is you don’t talk to the police, and it’s not because they’re bad people but they’re doing their job and their job is to get information from you and that information needs to be controlled when it’s released. As always, you should talk to an attorney about these types of things.

Eric:                          When the police are investigating someone they don’t have to tell the truth. When they go and tell Brendan Dassey we got your back, just tell us what happened, we got your back, that’s not, I don’t know. I don’t think it’s unconstitutional to do that. It is one of the ways that they can trick people into saying things and it’s probably pretty effective. In Dassey’s case it wasn’t effective because they tricked him into telling the truth. He was just saying things.

John:                        He was just saying things but he also had some pretty terrible counsel. Let’s talk a little bit about this, at least from my opinion. We don’t know objectively if he’s terrible or not but Lem [inaudible 00:24:23] who was appointed to represent Dassey and he, I don’t know why he did this, maybe you can shed some light onto it, but he hired a “investigator”. The purpose of this investigator was the theoretically investigate the crime and get Dassey to provide a true statement of the actual happenings of that day. What really happened was that, or at least what appeared to be happening was that there was a deal in the background where in [inaudible 00:25:00] was going to get him to plead and to turn on Avery and the purpose of this investigator was to get Dassey to testify as to he elements of his prior confession. This investigator meets with Dassey. The investigator gator breaks him down. He gives him a statement. He signs the statement, and then the investigator calls [inaudible 00:25:22] and says I got the statement, he’s cooperating, what do you want me to do? [inaudible 00:25:27] tells me to call, I think it was the department of justice and have his client testify directly to the department of justice. He does. Without an attorney.

Eric:                          I have no idea what this investigator was there to do other than to put Brendan Dassey’s, it seemed like the only reason was to get Dassey to admit to things that would help with the Steven Avery trial. I have no idea why he would have. It was completely bizarre. You cannot explain why this happened. I was just watching this shaking my head going what is going on here? He acted just like the cops. He told him what to draw. He told him how to draw a picture of her in the bed. He told him exactly what to say. It was an abomination. All of that, what he said, was used in his own trial against him. It was incredible and it’s so disappointing not only that, I don’t know what the plan was by his own attorney to do this, but then the fact that the trial court, the court of appeals and Supreme Court all upheld the admission of that evidence against Brendan Dassey is so disappointing.

John:                        Disappointing is light I would say. It’s absolutely disturbing.

Eric:                          It is.

John:                        I think that was the tenor of the whole documentary. This is just so disturbing. You have to take a shower after you watch it. For [inaudible 00:27:15] to let this kid, who is clearly not highly functioning get in a room with skilled investigators and then provide testimony after he had already mistakenly provided coerced testimony is just insane.

Eric:                          It’s nuts.

John:                        [inaudible 00:27:32] he eventually gets released because Dassey’s mother fights him and she says I can’t believe you did this, and pushed and pushes and pushes. Finally, not willingly but after a while the judge in that case gets rid of [inaudible 00:27:46] and then Dassey gets convicted and in the post rial motions his substitute counsel tries to argue that [inaudible 00:27:57] that he needs a retrial based on there was an effective assistance of counsel. It’s said, as you said before these post trial motions and the appellant practice are subject to such a high standard that Dassey was just destroyed by this moment of poor representation in my opinion.

Eric:                          Poor representation or it was prosecution by his own attorney.

John:                        It was.

Eric:                          It was completely bizarre. I’ve never heard of anything like that. The fact that the trial court judge dismissed [inaudible 00:28:41] for allowing this unsupervised interview with the police but then did not grant the motion for a new trial is conflicting there. Why’d you get rid of him then if it wasn’t bad? It is just awful.

John:                        It’s awful. Then with the judge himself during the sentencing, during Avery’s sentencing, was really odd. Maybe you have more, you do have more experience with this than I do but he made comments about the heinousness of Avery’s crimes or purported crimes that I thought were a little over the top and then later he was the guy that was deciding those post trial motions. It felt really unobjective. Is that common in criminal cases?

Eric:                          Yeah. [crosstalk 00:29:35]. The judge holds all the power and I don’t think it’s terribly uncommon for the judge to kind of have that color commentary during sentencing. The evidence is in the fact were found. He was found to commit a murder. Then that’s the facts the judge has.

John:                        That’s a good point. Regardless of whether or the judge things he did it or didn’t do it, he did it. Legally, did it. At that point he can say whatever he wants with respect to his action. You’re absolutely right on that.

Eric:                          The whole show is just incredible. I guess now it seems like the only chance of something getting overturned is if they can figure out a test to test that blood on the car for the … Steven Avery’s blood was allegedly found in the victims car and there was some evidence that seemed to say maybe that blood was planted there. If that blood was taken from this vial that was in police custody and planted it would have this preservative in it. It’s called EDTA. Sounds like some very suspect FBI testimony came in that proved there was no EDTA but it sounds like if the technology can catch up and create a test that is more scientifically sound that is a chance for him.

John:                        I wish i would have went more into that because, as you know and we deal with this in civil cases. There’s a test that applies called the dobber test which tests the scientific rigor of a certain method to determine whether or not it meets a constitutional standard. I wish they would have gone into that because it was interesting to me that that testimony got in and I wonder what the ruling on the testimony was. Maybe we’ll see that in the post documentary commentary, but it’s pretty interesting stuff.

Eric:                          I would have liked to see what issues are raised on appeal, because that certainly seemed like the biggest one, to let that evidence in. Seemed like the most clear path to a reversal.

John:                        Let’s talk about these two weird characters. [inaudible 00:32:06] and then the special prosecutor Ken Kratz, because post this trial and post documentary they’ve received some interesting press. They’ve gone on to do some pretty interesting things. If you want to talk about that a little bit.

Eric:                          We said the defense attorney, this is case that’s going to stay with him forever. I have a feeling this is a case that’s going to stay with Ken Kratz forever now too because of this documentary. Ken Kratz, spoiler alert, was involved in some sexting scandal with domestic abuse victims. He always came off and maybe was spun that way by the documentarians. He was not exactly a hero of this documentary and came off bad I think all throughout the entire thing. The public has taken their voice to Yelp to explain to the world how much a terrible person they think Ken Kratz is. If you go on Ken Kratz’s, he’s not a prosecutor anymore. He’s a private practicing criminal defense attorney. The Ken Kratz Law firm is subject to 131 Yelp reviews right now, the majority of which are all based on this documentary and are pretty funny, I guess. Funny for me, not funny for Ken because these are very very bad to someone’s reputation.

John:                        Let me read one of them. This is not for children.

“If you want to be sexually harassed by a man with a falsetto voice, this is the place for you. Also, if you have cases where you want to support the misconduct of the police, the courts, and the entire justice system, this is your man. Think of a sexual Muppet, with no morals or values. That’s him.”

Eric:                          I like the ones that call him sir. Like they want to show him some level, “Sir, you are pure evil.” You really had to put the word sir in there before your insult? I don’t know what the public thinks they’re really achieving by writing this kinds of stuff but it’s a problem. It’s a problem for Ken Kratz, but it’s also, to a lesser extent, this type of public review can be a problem for any business.

John:                        It’s a trial by public. It’s really a trial by rhetoric more than anything else. Sometimes it’s hilarious, like in this case, sometimes it’s unfortunate. These companies like Yelp and like Wikipedia. If he had a Wikipedia page it was probably edited, has started to take some action, such as this Yelp’s active clean up alert. If you actually go to the Kratz Law Firm yelp page you’ll see that Yelp is considering some of these reviews and publicity that he’s received. Then Wikipedia has this thing that alert’s readers when there’s and article that’s being considered for deletion because of some hacking or they believe that it’s not relevant to the actual factual content that should be in the article. At the end of the day these are Google bombs and our colleague who’s now passed John Dozier wrote this book called Google Bomb back in the day which was about this strategy. The strategy is to destroy a person’s reputation by posting to these sites that you can’t get content taken down from. It’s a real problem.

Eric:                          We’ve had a lot of people call us with complaints about reviews on third party sites that are terrible and everyone, I read reviews. I’m going to restaurant, I’m going to check out Yelp reviews. I’m going to check out Google reviews these have an impact on how the public reacts and judges things, and makes decisions about their purchasing power. These things matter and whether you have these terrible reviews about your business. Someone makes false allegations about health inspection reports or problems with items being in food, that may seriously damage your business. It could be a completely untrue statement.

John:                        Absolutely. We’ve seen this a lot with licensed professionals, like lawyers and doctors. We’ve done a lot of doctor defamation cases where a lot of the information is just untrue. Especially in the cases of doctor defamation. The doctor’s understand the diagnosis or they understand the process and the patient doesn’t. The lack of communication or the break down of communication results in these bad reviews and they come to us asking us to clean them up. There’s a piece of law in the united states called section 230 of the communications decency act and we’ve talked about this before but it’s a piece of law that says Yelp, and other sites like it cannot be held reliable for the republication of the defamatory statements because effective they are a computer service provider. It’s a little bit different than Europe because we have a little bit stronger free speech laws. In Europe they have a notice and take down system where if your provided notice that something is defamatory and you don’t take it down then you can be help liable. The United States, because we wanted the internet to be strong and we want it to support free speech rights on the internet, we enacted this section 230, and that makes it difficult for attorneys like us to get content like this taken down.

Eric:                          It does. It’s also a really important factor as to the explosion of very popular internet service. Facebook, Yelp, Twitter, Reddit. These could not exist without a pretty strong immunity for being sued for defamation every time someone says some shitty comment about someone.

John:                        Absolutely. The internet would not exist in the way that it does without this section of law.

Eric:                          It’s a double edged sward. We need those to provide us with the ability use these new services. At the same time, it gives these services incentive to ignore defamation. They don’t want to police it. If they do too much policing they may be losing some of that liability. I mean immunity.

John:                        There’s a line where it may become content providers. Or they become editors of the content in some way they can face liability because that immunity has been lost. There’s a fine line. There are ways that we can deal with it and get some of this content taken down. Sometimes we’ve been successful in basically pointing out to these sits look this is clearly false, here are the facts showing that it is false. Some sites, like Yelp, have taken down content in the past when they’ve been provided with that evidence. Other times we have to sue and we have to sue a John Doe defendant. We have to identify who they are through a subpoena, that early subpoena process. Then we have to amend the complaint to a certain claims against the individual who posted that content. That’s been happening a lot lately and it’s a very costly process it’s reserved for a certain class of client that really has a something damaging said about them on these sites.

Eric:                          It’s difficult because lawsuits and this kind of stuff are very expensive. There are some ways that we can help people get content removed short of a lawsuit. Typically it follows one of two ways is contacting the website itself and essentially asking them. Typically there’s things you can do to try and make your case a little bit better. The more objective facts you had to show their statements false the better. Someone says I ordered product x and I got product y, now if we have shipping records showing that they actually got the right thing, that’s grounds probably the take that statement off. The other route is sometimes contacting the poster directly, if you know who that person is. Of course, this presents it’s other problems and the Streisand effect.

John:                        Absolutely.

Eric:                          They may just, if you’re a small company or you’re an e-commerce company, you have a complaint up on Yelp or somewhere about they treated me shitty or they had bad customer service or they sent me the wrong thing. Then you send that person a letter threatening to sue them, they may go right back on there and say, “Not only did they give me shitty customer service, now they want to sue me.” That may be even worse.

John:                        It can definitely be worse. There are ways that people have tried to fix that problem. For example, through their terms of use agreements they’ve said if you post a negative review about us we will sue you or whatever it might be. Those themselves have negative effects. If you’re going to take the approach that this person or this website should be targeted by threat letter then you really need to talk to somebody that understands the thematic presence, for lack of a better word, of the internet because the internet has it’s own folk ways and has no morals and it’s no tenor of how to deal with these problems. You have to have somebody that knows how to navigate those things so that you don’t cause further harm to your business.

Eric:                          The terms of service agreement, what do you think about those kinds of provisions? It seems like they’ completely for show.

John:                        It’s great until somebody actually tries to enforce them and then the course says what the hell were you doing?

Eric:                          You can’t stop someone from saying what they want to say.

John:                        It’s a prior restraint on free speech.

Eric:                          I know we’ve had a lot of people ask us can we do stuff like that and that’s the answer. Sure you can do it. We won’t advise it. It’s meaningless. It’s not going to help you in the long run.

John:                        Wait until it ends up in a Reddit thread.

Eric:                          Right. You’re asking to be exposed. The answer would be provide such great customer service that these complaints are never lodged instead of trying to back loads terms of agreements that say you can’t say certain things. It’s a tough one. People are going to say stuff and they’re going to hide behind their anonymous keyboard and they’re going to say whatever they want. The point is businesses do have options to try to get this stuff removed. It’s nice to see Yelp really taking an active role and probably going to delete most of these Ken Kratz statements. I would assume they’d delete all of them. They have nothing to do with how he’s acting as a criminal defense attorney. None of these people even know him. They watched a documentary. I don’t think it is, Yelp shouldn’t be used to do that.

John:                        These sites are made to provide consumer information to the consuming public. It’s like the old test of should we allow attorney’s to advertise. Yes, we should allow attorneys to advertise because they provide truthful information the public that will inform them about how to make a decision about hiring an attorney. That’s the purpose of Yelp in these cases and information that’s extraneous to them is probably going to get deleted.

Eric:                          I would hope so. It’s hard when customers call us and people have complaints that are just 100% opinion. Those are probably going to be harder to remove but when people make these factual allegation. They have health code violation, then you can submit evidence to Yelp that actually you’ve received a grade A health review every time, then you should have that comment removed. It is defamatory. If you look at Yelp’s own terms of service. They expressly say they don’t allow defamatory comment. They usually have these community guidelines. Every site will treat it a little different but usually we can pullout some language from there, pull out some evidence and say Yelp, enforce your own rules. If you have these rules, enforce them and remove this stuff. Otherwise, why did you even makes these terms of service.

John:                        Maybe [inaudible 00:45:12] and Kratz will become European citizens and then use the right to be forgotten to get rid of this content.

Eric:                          That is a very interesting idea. One that we’ve had questions about.

John:                        I mean it’s an option. Now that this Irish court has said that this right to be forgotten is a thing and that content from Google can be removed from Google and other places and if you’re a European citizen you may have the right to forgotten online and maybe that’s a decent approach. Who knows? There’s some sense that Kratz has sought redemption. His license was suspended for a short period of time. Apparently he was addicted, by his own admission, to prescription drugs and he says he’s cleaned up. [inaudible 00:45:56] is now apparently a judge.

Eric:                          [inaudible 00:46:02] is a judge. He’s a municipal judge in some small county in Wisconsin. Manasha. God. I think anyone that has watched that documentary finds out that he is a judge has the same reaction of really, he is a judge. He is a judge. He is the one that wields the power now. It’s hard to tell what municipal court judge really does. I’m guessing it’s some kind of low level. Looks like traffic, forfeiture, kind of limited trial proceedings. Nonetheless.

John:                        Doesn’t take much to be judge. It’s a political position. The next time somebody gets’ a ruling, the next time you get a ruling now in your favor just remember Lem [inaudible 00:46:53] is a judge.

Eric:                          Judges are lawyers. That’s what they are. They are lawyers who have political aspirations usually. There’s nothing wrong with being a judge. I think it’s be fun to be a judge but they’re political positions. They’re elected for the most part. At least they are in Michigan. They’re driven by politics. I’m not saying that outcomes are always politically driven but the way you get to that job is political.

John:                        Definitely. At the end of the day they’re human just like everybody else is. They make mistakes and that’s the system that we’ve got. It’s the best system so far. We have to deal with it.

Eric:                          It is and when you can find those explains where it seems like everything is going wrong, it makes you question things about how we do it. What can we do? This is the best system I think as far as criminal procedure and the right to jury trial and being proven guilty beyond a reasonable doubt is usually a tough task. You think the jury here in the Steven Avery issue, first of all they found him guilty on murder and they found him not guilty on mutilation which it makes no sense.

John:                        It’s kind of bizarre.

Eric:                          It’s like either he did it, or he didn’t. Right there it seems like the jury was confused but they wanted some retribution it seems like. I don’t know. Who’s to say what you would do in that position, hearing all the real evidence. I think it goes to show the kind of pressure a juror would feel about potentially letting a murderer go.

John:                        I completely agree with you. As a wrap up let me ask you this. Do you think that the cops, just in your opinion, do you think the cops in this case set him up?

Eric:                          Someone, I feel like someone set him up. I don’t know who. It certainly seems, the evidence to me, nothing made sense. The no blood. Why did they find the key so late? Why is her DNA not on the key? Where did this bullet come from? Why did no one find it in the first place? The car, why would you park the car on the very outskirts of this enormous lot of cars. You could have placed that car in a easier spot to find it than on the very outskirts where someone immediately walks in at. The way it was covered up with branches makes no sense. If you really want to hide the car you put it in the car crusher that’s on the lot that operational. Why are there bones in multiple locations? Makes absolutely no sense.

John:                        That was another, I don’t mean to harp on this but why was there no evidence of if she had a cell phone on her and the cell phone was in the fire wouldn’t there be some chemical trace of lithium ion burning or nickel cadmium. One of those chemicals that would show that the cell phone was burned in that location. There’s so many pieces of chemical evidence that I feel should have been present that weren’t.

Eric:                          I was confused, it was assumed. It was so quickly said that these were her bones and they never really went over the testing of any of it. Yeah, this was her. That seemed weird and then you didn’t really find out until later. There’s actually bones in very different locations. If you are a murderer and you burn someone in your back yard do you really take only the hip bones and move them three mils away?

John:                        The only scenario in which you would is if you were dismembering, this is getting morbid, but if you were dismembering the body and then where’s that evidence? What tool was used? If the tool exists or if they had a theory on the tool was it cleaned? Was there a theory about the cleaning? Where is all this evidence? It’s crazy.

Eric:                          There was here blood was in the back of the car they said was from her hair that left this trail of blood on the back of her car. If they killed her in the house or in the garage and then burned her in the backyard, why would they ever put her interest the car?

John:                        I have no idea.

Eric:                          The timing and then of course there was issues with the timing, there was issues with the two guys that had their own alibis that both went hunting independently. They were the only ones that could cover each other’s alibi. There’s the voice mails that go missing. Why is there blood in the back of the car? Was it really his blood? There’s so much question as to what’s going on but I think the media had an impact on the outcome of that case. One of those jurors even said, one of the jurors that was dismissed said a few of the people had their mind made up before the trial started. That’s what the defense attorneys always said. They go we think we’re doing a good job but if people have made up their mind there’s nothing we can do.

John:                        Absolutely. To answer my own question, from my perspective I want to hope that the police didn’t set this guy up. I want to hope that the police saw this guy as a threat, they were acting over zealously and maybe they planted that key because they felt like otherwise they didn’t have enough evidence to convict him but they knew that he did it or they thought that he did it. I just hope that these people aren’t to so nefarious to set this entire thing up.

Eric:                          I don’t think the police went out and killed this lady and then tried to frame him.

John:                        No, I don’t think they did either.

Eric:                          That’s what happened in this first convection. Someone else did it but the police for some reason keyed in on him.

John:                        They had a sketch artist who …

Eric:                          Oh my god. I would have loved that first episode to never end because they were just nailing people so good.

John:                        For the audience, the sketch artist basically took a photo from a line up and then sketched the concept from that photo. The concept of who the killer was.

Eric:                          He took it right from a photo that he already had on his desk. It was terrible.

John:                        Anyway, that’s all I’ve got. You got anything else?

Eric:                          No, I think we wanted to talk about this. Hopefully it’s nice to hear other attorney’s talking about this because it’s probably one of the first times, I mean we’ve all seen crimes shows and stuff like that but this was really in depth about motion practice and what they’re trying to keep out and experts and reasonable doubt and jurors. Hopefully we’ve helped shed some light. If anyone has questions for us about how things were handled you can certainly contact us through on our Facebook page, on Twitter. Ask us anything you want. We’ll be happy to fill in what gaps we can but that’s it. It’s almost New Years. Michigan State’s playing in the Cotton Bowl.

John:                        Go green.

Eric:                          Go white. Big game for us as MSU alums. I think that’s all I got.

John:                        Have a Happy New Year everyone and we’ll talk to you soon.



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