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Understanding Stephen Avery's Post Conviction Options

If you watched Netflix's hit true crime documentary series, "Making A Murderer," you are probably wondering where Stephen Avery and Brendan Dassey can go from here, regardless of whether you think they are innocent or guilty.

The docuseries follows the trials and convictions of Mr. Avery and his alleged co-conspirator Mr. Dassey. While, SPOILER ALERT...

They were both convicted of murder by their respective juries, the series created significant reasonable doubt in the minds of viewers. It has been reported that over 430,000 people signed petitions asking President Obama to pardon Mr. Avery.

Will Mr. Avery Get A Pardon By Popular Demand?

It is extemely unlikely. Stephen Avery was convicted by the Wisconsin justice system. The President can only pardon convictions handed down in the federal courts. He is, essentially, powerless regardless of whether he believes Mr. Avery was wrongfully convicted.

In theory, the chief executive of the state of Wisconsin, Gov. Scott Walker, could pardon Mr. Avery, but Gov. Walker has not issued any pardons since being elected. He prefers to leave matters to the courts and has stated such when asked about Mr. Avery's case.

Does Mr. Avery Have Post Conviction Options In Court? 

While each state justice system operates somewhat uniquely, in general to appeal a conviction you must show that there were errors in the trial that require reversal. New evidence is also grounds for an appeal, and this is how Mr. Avery's first conviction was vacated. (He'd spent 18 years in prison after being wrongfully convicted of rape and was cleared when DNA evidence pointed to the real assailant).

New evidence has recently surfaced in Mr. Avery's case. A juror has come forward and stated that he believed Mr. Avery was framed by law enforcement, but that he did not voice his opinion during deliberations because he felt pressured. He also said the jurors may have coerced with one another and that there was vote-trading. Is this enough evidence for an appeal?

This evidence is likely insufficient. Wisconsin law states that jurors generally cannot testify about what happened in deliberations. The law is meant to discourage juror harassment after the verdict as well as preserve privacy in deliberations.

There are exceptions. Jurors can testify about outside influence on the jury, for example, but in this case the juror has complained about internal issues and pressure within the jury.

Thus, it is improbable that Mr. Avery will obtain an appeal on the grounds of this juror coming forward. 

Appeals and other post conviction processes are a very complex and important part of our justice system. At the Law Office of Stephen L. Richards in Chicago, Mr. Richards doggedly pursues direct appeals, post-conviction petitions, habeas corpus appeals, expungements and pardons for those who have been wronged by the Illinois justice system. To consult with Mr. Richards about a wrongful conviction in Illinois, call 773-467-7079 or contact him online.

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Notable Results

  • Accusation: Attempt First Degree Murder
  • Facing: 30 years in prison at 85%
  • Result: Post-conviction petition granted
  • Accusation: Solicitation of a Prostitute, Obstructing Justice, Battery
  • Facing: 365 days in jail, loss of legal residence
  • Result: All charges but battery dropped, one year expungeable supervision
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