The success of the Netflix documentary series Making a Murderer has ignited heated discussion around message boards and water coolers across the country, however while the brunt of the outrage has been borne (quite rightly) by the Manitowic County Sheriff Department’s magical hide’n’seek car keys and prosecutor Ken Kratz’s sneering penchant for hyperbole, an often overlooked aspect of the case which I found particularly disturbing as a lawyer was the massive disparities in the quality of legal services received the protagonists throughout the series.
On the one hand, we had Stephen Avery’s defence pairing of Dean Strang and Jerry Buting. They became two of the stars of the show: erudite; measured; hardworking. Their services were however acquired at a cost: Avery had to sink most of the funds he obtained through his earlier wrongful imprisonment settlement into his representation.
Avery’s co-accused, Brendan Dassey did not have the means to pay for representation, and so had to make do with a succession of state appointed lawyers.
The sorry tale of Brendan pulls into sharp relief two shortcomings of American justice which are not present in Scots Law: the adverse effects of both the politicization of the judiciary and the opening up of legal services to the free market.
Dassey’s first lawyer, Len Kachinsky, is a case in point of the first of these two evils. Whereas judges in Scotland are appointed by their peers, in America, they are elected by the popular vote. The discrepancy between these two systems means that while in Scotland, lawyers with judicial ambitions set out to impress judges with their professionalism, legal knowledge and aptitude; in America, they set out to catch the eye of the media and the public with gestures and high profile cases.
As we are first introduced to Len Kachinsky, we are told that he recently stood for election as a judge unsuccessfully. He is grinning from ear to ear and seeking out questions from the media. He also seemingly has no interest in hearing Dassey’s protestations of innocence and seems keen to have his investigator beat an admission of guilt out of Dassey. Why?
Kachinsky sees the Dassey case as a golden ticket to winning the next election: the case has attracted huge local media attention; the media are hungry for Avery’s conviction; Avery is refusing to accept his guilt; and the prosecution’s case is far from watertight. Kachinsky knows that if he can obtain a confession from Dassey that implicates Avery, he can strike a deal that sees Dassey’s sentence reduced while at the same time lauding himself is the candidate who brought Teresa Halbach’s murderer to justice. The truth, it seems, does not enter the equation.
The next public defender appointed to Dassey’s case is Mark Fremgen. Fremgen comes across as a nice enough guy, but also utterly out of his depth and possessed of neither the acumen nor the inclination to successfully see off a murder charge. I am certain many Scots lawyers watched aghast, like me, as Fremgen stood up to represent his client in court with his top button undone! Coming from a jurisdiction where Judges are known to rain bloody hellfire on lawyers for offences as trivial getting a page number muddled up, such acts of open charlatanism send shivers down the spine.
But this gulf in standards seems alien to the Scots lawyer, where the standard across the board in Scotland is exceptionally high, due in no small part to rigorously enforced standards by the Law Society.
The legal market in Scotland is quite jealously guarded, and practitioners are rightly proud of the reputation the jurisdiction has worldwide. One pernicious myth of Thatcherism is that the British economy was liberated in the 1980’s when the Conservatives freed up the labour market, but this is only half true: while Thatcher did make it easier for employers to offshore jobs or reduce wages, this was only applied to sectors of the economy traditionally dominated by the working classes; most of the ‘middle class’ professions (upon whose votes her premiership relied) were allowed to retain their own self-regulated status. This allowed them to manipulate the labour supply curve of their industries which insulated wages from the downward pressure the free market would have exerted on them. As a result, law, accountancy, medicine, teaching, financial advising and many others have all reserved the right to self-impose restrictions on entry to their respective labour markets.
Economists of a more neo-liberal bent will bemoan that this causes a lack of market efficiency and inflates unit costs resulting for the end consumer; however the degree of quality control it affords allows Scots lawyers to stand head and shoulders above almost every other jurisdiction.
The process for becoming a lawyer in Scotland is long: an individual must first obtain a bachelor’s degree in law. This will take either four years as an undergraduate or two years as a graduate entrant. She then must be complete a one year post-graduate diploma in legal practice. There are limited places available on this course. If she completes this, she then must then complete a two year training contract with a law firm, positions in which are also deeply competitive. Finally, she must carry out an additional 60 hours of Continuing Professional Development. Only then, after a minimum of 7 years of academic and professional education, will she be entitled to call herself a solicitor in Scotland. Even at this stage however, she is not permitted to set up her own law firm until she has a further three years Post Qualification experience.
If you are reading this blog and want to set up your own Scots law firm and haven’t yet done any of the above, the earliest you will be able to open your doors will be 2026.
By contrast the only entry requirement to becoming a lawyer in Wisconsin is to pass the State Bar Exam. The individual will then be free to practice. Whereas it will take you 10 years to set up your Scots Law firm, you could set up shop in Wiscoinsin before the Eurovision Song Contest runs it course.
The arguments in favour of the free market economics contend that market forces act to streamline industries: if someone is a bad lawyer, people won’t use him. People will choose to instruct the Dean Strangs and Jerry Butings of this world and ignore the Len Kachinskys and Mark Fremgens. The free market will drive the poor lawyers out of business.
The problem with this analysis is that the provision of state-aided public defenders imposes a price floor on the market. This acts as a safety net for unambitious or unable lawyers. No market forces act on the providers caught in the floor, and there is no way to separate the hopelessly inept lawyers from the reasonably competent. As a result, the accused individual of modest means has to rely on nothing more than good fortune in hoping he will be assigned someone capable of safeguarding his liberty.
And this affects us all as a society. When justice miscarries, two things happen: not only will an innocent man go to jail, but also, the actual offender will remain at liberty posing a risk to the public. This was the case in Making a Murderer when Avery was wrongly convicted of sexual assault in 1985. The real assailant, Gregory Allen, remained at large where he committed a further two sexual assaults.
Access to justice should be non-negotiable in any fair and free society. The quality of that justice across the board should be as even as possible. Where evenly matched lawyers go head-to-head, their abilities should cancel each other out and justice will be done.
These lessons should have particular resonance when set against today’s prevailing milieu, which sees wave after wave of assault being launched by the government on the legal aid budget. The harder this budget gets squeezed, the more difficult it will be for solicitors and advocates to dedicate the necessary amount of time and resources to preparing for cases. It is not inconceivable if legal aid get further slashed, the most able lawyers will either set up solely for privately paying criminal clients or more into other areas of law altogether. The exodus may even become so pervasive that the Law Society is forced to relax its rigorous entry requirements at the expense of quality. We should learn the lessons of Making a Murderer, be proud of the good standing internationally of Scots law and take all steps to resist further attacks on legal aid.