Project and content management for Contemporary Authors volumes
WORK TITLE: Convicting Avery
WORK NOTES:
PSEUDONYM(S):
BIRTHDATE:
WEBSITE: http://cicchinilawoffice.com/
CITY: Kenosha
STATE: WI
COUNTRY:
NATIONALITY:
https://www.linkedin.com/in/michael-cicchini-71338613/
RESEARCHER NOTES:
LC control no.: n 2009077177
LCCN Permalink: https://lccn.loc.gov/n2009077177
HEADING: Cicchini, Michael D., 1967-
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100 1_ |a Cicchini, Michael D., |d 1967-
670 __ |a Cicchini, Michael D. But they didn’t read me my rights!, 2010: |b CIP t.p. (Michael D. Cicchini) galley (b. Nov. 21, 1967 ; criminal defense attorney)
953 __ |a xg06
PERSONAL
Born November 21, 1967.
EDUCATION:Marquette University Law School, J.D. (summa cum laude), 1999; also received M.B.A. and CPA certification.
ADDRESS
CAREER
Author and criminal defense attorney. Associate attorney, Quarles & Brady LLP, Milwaukee, WI, 2000-02; owner, Cicchini Law Office LLC, Kenosha, WI, 2002–.
WRITINGS
Contributor of articles to law reviews.
SIDELIGHTS
Michael D. Cicchini is an attorney based in Kenosha, Wisconsin who writes popular books about the law. He is the coauthor of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System, and the sole author of Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights and Convicting Avery: The Bizarre Laws and Broken System Behind “Making a Murderer.” “When I am not representing clients,” Cicchini declared in an autobiographical statement found on his business’s home page, Cicchini Law Office, “I am advocating for legal reform to strengthen our constitutional rights.”
Cicchini’s first two books collect stories about the way the modern legal system is understood and law is practiced in the United States. But They Didn’t Read Me My Rights!, for instance, wrote a Publishers Weekly reviewer, “begins with attention-grabbing legal oddities.” In Tried and Convicted, “Cicchini points to actual cases … in order to argue that constitutional liberties are not merely technicalities that allow defendants to escape criminal convictions,” declared Robert M. Worley in the International Criminal Justice Review. “On the contrary, the author asserts that these rights are quite fragile, and law enforcement officials often go to great lengths in order to circumvent and destroy these precious rights.” In Convicting Avery, however, Cicchini examines one specific case from his native Wisconsin that won national attention after it was made the subject of a Netflix documentary. Wisconsinite Steven Avery was wrongly convicted of sexual assault in 1985. He served eighteen years of his sentence before he was exonerated by DNA evidence and released in 2003. In 2005, however, he was charged with first-degree murder and was convicted and sentenced in 2007. “The author,” said a Kirkus Reviews contributor, “relitigates Avery’s troubling conviction by walking back through the cases against him, both chronologically and in terms of the procedural and evidentiary issues raised, adding legal depth to key points.” “Cicchini convincingly demonstrates that the Kafkaesque criminal justice in Avery’s case was not an anomaly,” stated a Publishers Weekly reviewer, “and his work is an accessible entree into the debate.” “Thoughtful and well-reasoned,” assessed David Pitt in the Winnipeg Free Press, “the book is eye-opening and frightening.”
Cicchini uses the Avery case as a way of pointing out shortcomings in the Wisconsin court and criminal system. “Cicchini doesn’t just take pot shots at the Avery case or Wisconsin’s legal system. He suggests substantive reforms regarding the third-party defense and Miranda warnings,” declared Tim Gebhart in a Blogcritics review. “Still, Cicchini recognizes the difficulty of substantive reform, noting that it `rarely happens because it is the rational or right thing to do.’ Rather, it tends to occur only when lawmakers `are motivated to ride the emotional wave of a single, high-profile injustice that has captured the public’s attention.’” “The valid questions and issues that are highlighted in Convicting Avery never violate the identities and right-to-justice that belongs to the victims of the crimes,” stated Dirk Robertson in Criminalelement.com. “The point throughout the book is that if the wrong perpetrators are in prison—or if questionable actions have served to put them there—is justice really served? Or have further wrongs been committed due to the necessity for the appearance of justice. A question which remains pertinent both for Wisconsin’s criminal justice system and the United States as a whole.” “Overall, Convicting Avery is a revealing and fascinating read that will interest readers of true crime, criminal law, or American legal procedures,” concluded Michael Thomas Barry in the New York Journal of Books. “It will most certainly stimulate further discussions of how someone can be railroaded and falsely convicted of a crime.”
BIOCRIT
PERIODICALS
Bookwatch, July, 2010, review of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System.
California Bookwatch, May 1, 2017, review of Convicting Avery: The Bizarre Laws and Broken System Behind “Making a Murderer.”
International Criminal Justice Review, June, 2013, Robert M. Worley, review of Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights, p. 203.
Kirkus Reviews, February 1, 2017, review of Convicting Avery.
Publishers Weekly, February 15, 2010, But They Didn’t Read Me My Rights!, p. 126; February 13, 2017, review of Convicting Avery, p. 62.
ONLINE
Blogcritics, http://blogcritics.org/ (April 2, 2017), Tim Gebhart, review of Convicting Avery.
Cicchini Law Office, http://cicchinilawoffice.com/ (November 1, 2017), author profile.
Criminalelement.com, https://www.criminalelement.com/ (April 13, 2017), Dirk Robertson, review of Convicting Avery.
New York Journal of Books, http://www.nyjournalofbooks.com/ (April 3, 2017), Michael Thomas Barry, review of Convicting Avery.
Winnipeg Free Press, https://www.winnipegfreepress.com/ (April 1, 2017), David Pitt, review of Convicting Avery.
Cicchini Law Office, LLC
(262) 652-7109
620 56th Street, Kenosha, WI 53140
mdc@CicchiniLaw.com
home page
about me
trial experience
books
articles
media
wis ji 140
About Michael Cicchini
I have been a criminal defense lawyer since opening my law practice in 2002. My fellow attorneys have recognized me as a top young lawyer (2006-10), a top trial lawyer (2009), and a top criminal defense lawyer (2013) in Wisconsin.
In defending my clients I have obtained dismissals or acquittals in cases ranging from misdemeanors to serious felonies. These felonies include solicitation to commit murder, robbery, sexual assault, child pornography, false imprisonment, strangulation, substantial battery, and other serious charges. (See my trial experience page for more details.)
When I am not representing clients I am advocating for legal reform to strengthen our constitutional rights. My efforts include three books and twenty law review articles.
Before starting my own law office in 2002, I was a lawyer at Quarles & Brady LLP, a national law firm of several hundred attorneys. While at Quarles & Brady I worked primarily in the firm's commercial litigation department.
I earned my J.D., summa cum laude and first in my class, from Marquette University Law School where I won numerous academic awards and was a member of the Marquette Law Review. Before law school I earned a C.P.A. certificate and an M.B.A. degree and was employed in the corporate world.
Click on the tabs for more information, including links to my books and radio interviews, as well as the full text of my articles.
Michael Cicchini
Owner at Cicchini Law Office LLC
Cicchini Law Office LLC Marquette University Law School
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Cicchini Law Office LLC
Owner
Company NameCicchini Law Office LLC
Dates EmployedJan 2002 – Present Employment Duration15 yrs 10 mos
LocationKenosha, WI
Defending individuals accused of crimes in Kenosha County, Wisconsin.
Quarles & Brady LLP
Associate Attorney
Company NameQuarles & Brady LLP
Dates EmployedJan 2000 – Jan 2002 Employment Duration2 yrs 1 mo
LocationMilwaukee
Commercial litigation
Education
Marquette University Law School
Marquette University Law School
Degree NameJD, summa cum laude
Dates attended or expected graduation 1997 – 1999
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Print Marked Items
Convicting Avery
Michael D. Cicchini
California Bookwatch.
(May 1, 2017):
COPYRIGHT 2017 Midwest Book Review
http://www.midwestbookreview.com
Full Text:
Convicting Avery: The Bizarre Laws and Broken System Behind Making a Murderer comes from a Wisconsin
criminal defense attorney Michael D. Cicchini, who follows the procedures that resulted in what Cicchini asserts were
the wrongful convictions of Steven Avery and his mentally retarded nephew Brendan Dassey. This event was
documented in the Netflix production "Making a Murderer" that followed how the two were convicted twice. This
process exposed many flaws in Wisconsin's criminal justice system, which are surveyed here in further detail,
presented in a close inspection that quotes from the two's appellate court decisions, court briefs, trial documents and
legal articles. The result is a powerful survey highly recommended for any legal collection and for anyone interested in
murder cases and the social impact of justice system proceedings.
Michael D. Cicchini
Prometheus Books
59 John Glenn Drive, Amherst, NY 14228-2197
9781633882553, $18.00, www.prometheusbooks.com
Source Citation (MLA 8th
Edition)
Cicchini, Michael D. "Convicting Avery." California Bookwatch, 1 May 2017. General OneFile,
go.galegroup.com/ps/i.do?
p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA496014798&it=r&asid=bcf1bef2dccd3100373f490553376b56.
Accessed 4 Oct. 2017.
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Cicchini, Michael D.: CONVICTING AVERY
Kirkus Reviews.
(Feb. 1, 2017):
COPYRIGHT 2017 Kirkus Media LLC
http://www.kirkusreviews.com/
Full Text:
Cicchini, Michael D. CONVICTING AVERY Prometheus Books (Adult Nonfiction) $18.00 4, 4 ISBN: 978-1-63388-
255-3
Rebuttal of the case against Steven Avery, from a defense attorney who sees larger patterns of malfeasance in
Wisconsin justice.Cicchini (Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional
Rights, 2012, etc.), who assumes readers' familiarity with the popular Netflix series Making a Murderer, views the
shady prosecutorial moves central to the documentary as typical of his state overall: "We defense lawyers are rarely
bored....Wisconsin loves its massive, draconian, ever-expanding and increasingly irrational criminal justice industrial
complex." The author relitigates Avery's troubling conviction by walking back through the cases against him, both
chronologically and in terms of the procedural and evidentiary issues raised, adding legal depth to key points raised in
the documentary. Many of these issues have nationwide resonance, such as eyewitness misidentification, which
resulted in Avery's initial wrongful conviction for sexual assault. As the author notes, "Avery learned that his sixteenwitness
alibi defense was far from airtight; the prosecutor defeated it with a single eyewitness." Another issue defense
attorneys regard more dubiously than the general public concerns police interrogations leading to false confessions;
here, the self-incrimination notoriously elicited from Avery's pliable, juvenile nephew is examined in terms of the
manipulative techniques used by zealous detectives. Cicchini argues that despite the culturally reassuring Miranda
warning, "police interrogations are a guilt-presumptive process." As in the documentary, the author regards officials'
handling of DNA and physical evidence as most suggestive of possible corrupt behavior to frame Avery, who was
pursuing a lawsuit for wrongful conviction against Manitowoc County at the time of his arrest. He additionally
examines suspicious intricacies within Wisconsin's bail, preliminary hearing, and appellate procedures. Overall,
Cicchini makes his case clearly. Although he's enthusiastic about picking apart the prosecution's narrative, his
discussion of legal principles is occasionally technical, and specific case comparisons would have bolstered his
insinuation that Wisconsin is an ominous legal backwater. Will engage fans of the series and readers who wonder if
prosecutors really do cut corners in their campaigns against serious criminals.
Source Citation (MLA 8th
Edition)
"Cicchini, Michael D.: CONVICTING AVERY." Kirkus Reviews, 1 Feb. 2017. General OneFile,
go.galegroup.com/ps/i.do?
p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA479234500&it=r&asid=1585dedbac0dfccd773e5d5a3bd26fc0.
Accessed 4 Oct. 2017.
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Convicting Avery: The Bizarre Laws And
Broken System Behind 'Making A Murderer'
Publishers Weekly.
264.7 (Feb. 13, 2017): p62.
COPYRIGHT 2017 PWxyz, LLC
http://www.publishersweekly.com/
Full Text:
Convicting Avery: The Bizarre Laws and Broken System Behind 'Making a Murderer'
Michael D. Cicchini. Prometheus Books, $18 trade paper (220p) ISBN 978-1-63388-255-3
Even readers unfamiliar with the Netflix documentary series Making a Murderer will be intrigued by Cicchini's
insights into the inequities of the criminal justice. Steven Avery spent almost 20 years in prison for the rape of Penny
Beerntsen, only to finally be exonerated by DNA evidence; when he sued the Manitowoc, Wis., sheriff's department
for wrongful conviction, he was arrested again and charged with an unrelated murder. The evidence against him
included the suspicious discovery of the victim's car key in plain view on Avery's bedroom floor, on the sheriff's
department's sixth search of his property. Cicchini, a criminal defense attorney based in Kenosha, Wise., and author of
Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights, uses the unsettling
Avery case to highlight common police practices and judicial attitudes that combine to stack the deck against criminal
defendants. They include suggestive identification procedures such as showups, in which witnesses are shown only one
person to identify, and Wisconsin's loose practice of allowing expert testimony about pretty much anything from pretty
much anyone. Even after that practice was ostensibly discontinued by the courts, judges still justified the admission of
questionable evidence by stating that it would have been admissible under the prior standards. Cicchini convincingly
demonstrates that the Kafkaesque criminal justice in Avery's case was not an anomaly, and his work is an accessible
entree into the debate over how defendants' rights should be protected. (Apr.)
Source Citation (MLA 8th
Edition)
"Convicting Avery: The Bizarre Laws And Broken System Behind 'Making A Murderer'." Publishers Weekly, 13 Feb.
2017, p. 62+. General OneFile, go.galegroup.com/ps/i.do?
p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA482198205&it=r&asid=bbf004d90b357bdf3aa804347f5953b4.
Accessed 4 Oct. 2017.
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But They Didn't Read Me My Rights!
The Bookwatch.
(July 2010):
COPYRIGHT 2010 Midwest Book Review
http://www.midwestbookreview.com/bw/index.htm
Full Text:
But They Didn't Read Me My Rights!
Michael D. Cicchini, JD and Amy B. Kushner, Ph.D.
Prometheus Books
59 John Glenn Drive, Amherst, NY 14228-2119
9781616141660, $19.00 www.prometheusbooks.com
But They Didn't Read Me My Rights! Myths, Oddities, and Lies About Our Legal System is a 'must' for any general
lending library where legal rights are of concern. It considers common fallacies about how our legal system operates,
covering such basic issues as how and when police are required to read rights, and revealing many circumstances
where police can even interrogate without revealing rights. A fine pick for any general lending library!
Source Citation (MLA 8th
Edition)
"But They Didn't Read Me My Rights!" The Bookwatch, July 2010. General OneFile, go.galegroup.com/ps/i.do?
p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA231094039&it=r&asid=2da909b29e5e8587effab2f2deeb61f9.
Accessed 4 Oct. 2017.
Gale Document Number: GALE|A231094039
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But They Didn't Read Me My Rights! Myths,
Oddities, and Lies About Our Legal System
Publishers Weekly.
257.7 (Feb. 15, 2010): p126.
COPYRIGHT 2010 PWxyz, LLC
http://www.publishersweekly.com/
Full Text:
But They Didn't Read Me My Rights! Myths, Oddities, and Lies About Our Legal System
Michael D. Cicchini and Amy B. Kushner. Prometheus, $19 paper (272p) ISBN 978-1-61614-166-0
The law is never black and white, as Cicchini and Kushner prove in this entertaining look at common assumptions and
misconceptions about the American justice system. Presented as a series of questions and answers, the book begins
with attention-grabbing legal oddities (e.g., it's possible to be convicted of drunk driving without actually driving a car)
and progresses through the particulars of contract law, taxation, and civil suits. Cicchini and Kushner, a criminal
defense attorney and college English lecturer respectively, stress that the myriad state and federal laws are too vast to
memorize; they are also almost always flexible, being applied to specific cases through legal reasoning. For example,
it's possible to be convicted of multiple counts of the same crime, despite the constitutional protection against double
jeopardy, provided there are multiple victims. While some of the questions border on ridiculous ("Can the police tell
when you're lying?" "Are public defenders 'real lawyers'?"), the majority will intrigue the average reader accustomed
to the television version of law and order, which emphasizes drama rather than legal precedent. (Apr.)
Source Citation (MLA 8th
Edition)
"But They Didn't Read Me My Rights! Myths, Oddities, and Lies About Our Legal System." Publishers Weekly, 15
Feb. 2010, p. 126. General OneFile, go.galegroup.com/ps/i.do?
p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA219307539&it=r&asid=1ac1f5016f3227aee83e98881ad04f8e.
Accessed 4 Oct. 2017.
Gale Document Number: GALE|A219307539
See discussions, stats, and author profiles for this publication at:
http://www.researchgate.net/publication/283494971
Worley, R. M. (2013). “Tried and
Convicted: How Police, Prosecutors,
and Judges Destroy Our
Constitutional Rights. International
Criminal Justice Review. Vol. 23, (2):
203-205.
ARTICLE in INTERNATIONAL CRIMINAL JUSTICE REVIEW · JUNE 2013
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1 AUTHOR:
Robert M. Worley
Lamar University
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http://icj.sagepub.com/content/23/2/203.citation
The online version of this article can be found at:
DOI: 10.1177/1057567713480812
International Criminal Justice Review 2013 23: 203 originally published online 12 March 2013
Robert M. Worley
Constitution
Book Review: Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our
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disrupted by the nature of the crime committed. In particular, 42% of the inmates were serving time
as sex offenders often committing offenses against young family members. This chapter also provides
evidence that prison is an extreme environment where day-to-day relationships are magnified
due to the close proximity within which they live. For many of the respondents, fellow prisoners
were a major coping resource for coping and something to be celebrated.
The ability to cope under challenging circumstances is a theme continued into Chapter 5. This
chapter explores how the distribution of power affects positive prison adjustment. With physical
declines related to aging, challenges to one’s masculinity are frequent. A valuable contribution to
the literature, the aging prisoner was found to be highly innovative when it comes to the portrayal
of his masculinity. Of note is the creative discussion of how power is magnified behind prison walls
and the limited capacity to act is present for all inmates, regardless of age. The chapter identifies
‘‘old school’’ or ‘‘long-term’’ inmates, knowledge, gender staff relations, and older inmates as a
father figure as important variables for the maintenance of a masculine identity. These unique characteristics
were found to serve the inmates well as they created a successful adjustment strategy in
later life. Mann challenges some of the early stereotypes where researchers have painted a somewhat
depressive picture of aging prisoners as powerless. While prison size, security level, and population
makeup may be important factors for determining who controls a prison environment, Mann has
introduced an important topic worthy of further research.
This book addresses some of the special issues a growing section of the prison population who
struggle to cope with a variety of end-of-life issues while incarcerated. Mann concludes with a
variety of recommendations including adequate health care, education and employment opportunities,
special housing environments, and outdated policies designed for younger inmates. Perhaps, a
major weakness of the book is the distinct prison establishments from which the data were collected:
(1) the open prison; (2) the Category C prison, and (3) the resettlement (reentry) prison. While each
setting provides a unique study group, the prison structure, and hence experience, varies significantly.
Also, since the foundation of the book is based on personal accounts of prisoners, perhaps
more specific distinctions could have been made regarding inmate narrative (i.e., age, length of time
served, prison environment). Nonetheless, Dr. Mann makes a valiant effort in providing one of the
few studies that has focused on the inner lives of older men doing time. This book should be a most
helpful resource for prison policy makers and for researchers who continue to break new ground on
this increasingly important topic.
Michael D. Cicchini
Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitution. Lanham, MD: Rowman & Littlefield,
2012. 161 pp. $32.00 ISBN 13: 978-1-4422-1717-1
Reviewed by: Robert M. Worley, Texas A&M University–Central Texas, Killeen, TX, USA
DOI: 10.1177/1057567713480812
In this book, Michael D. Cicchini, a Wisconsin criminal defense attorney, argues quite convincingly
that fundamental constitutional liberties are under attack by criminal justice practitioners. In the
beginning of his book, the author points to a recent case where a prosecutor in Wisconsin petitioned
to admit a letter of a deceased person, which essentially accused a criminal defendant of murder, into
evidence during a jury trial. Since the letter is written by someone who had recently passed away,
Cicchini contends the defendant did not have an opportunity to cross-examine or challenge the
writer of the letter. According to Cicchini, this case went to the Wisconsin Supreme Court through
Book Reviews 203
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a special direct appeal; and in a crushing blow to the confrontation clause of the U.S. Constitution,
the Court permitted the letter to be admitted into evidence by the lower court. Subsequently, the
defendant was convicted, even though he was never permitted to cross-examine the person who had
written the letter. After the case, the jury members were polled, and many stated that the letter was
the most important piece of evidence that led them to convict the defendant. Throughout this book,
Cicchini points to actual cases, such as this, in order to argue that constitutional liberties are not
merely technicalities that allow defendants to escape criminal convictions. On the contrary, the
author asserts that these rights are quite fragile, and law enforcement officials often go to great
lengths in order to circumvent and destroy these precious rights.
In one of his most thought-provoking chapters, Cicchini provides readers with an in-depth discussion
of the Fifth Amendment right against self-incrimination. The author argues that, in reality, this
is a soft law that is often malleable and manipulated by police officers. In fact, the author maintains
that police, with the assistance of prosecutors and judges, have been able to employ numerous
techniques in order to avoid reading Miranda warnings to suspects. Cicchini writes that the police,
in fact, are very adept at convincing a suspect to waive his or her right to remain silent as well as the
right to an attorney. According to the author, police will often interrogate a suspect before placing
the individual under arrest. When this happens, the suspect has not been technically arrested; and
therefore, law enforcement officers can interview an individual as long as they wish without giving
any Miranda warnings. Cicchini argues that police may also approach a suspect at work as well as
other places where they might be able to catch an individual off guard. In these circumstances, so
long as the individual is not placed under arrest, police do not have to give Miranda warnings. This
allows them to obtain a self-incriminating statement without having to respect important constitutional
liberties. Also, in some cases, police may arrest an individual and place the suspect in custody
without making an attempt to perform a formal interrogation. However, instead of asking suspects
questions, Cicchini asserts that the police may tell certain things to arrestees. According to the
author, police do this in the hope of getting some type of verbal reaction. Often, judges may not consider
this to be a form of interrogation; therefore, police are able to obtain incriminating information
without having to Mirandize a suspect. However, even if an individual reads his or her Miranda
rights, Cicchini contends that the majority of suspects are eventually convinced to waive these
rights. The author asserts that often police induce suspects to waive this right by offering false promises.
They lead suspects to believe they will be treated with leniency if they cooperate, without
making any specific guarantees.
In this book, the author also makes a convincing argument that the right to privacy is a soft law
that is routinely violated by governmental agents. Cicchini explains that it is extremely easy for
police officers to obtain warrants. In, fact, he suggests that magistrates will almost always give
search warrants the rubber stamp of approval. The author argues that search warrants are turned
down in only the rarest of cases. Additionally, in a bold indictment of the criminal justice system,
Cicchini insinuates that some judges may not even bother to read the warrants they sign off on. He
also is critical of the fact that when police officers swear on the truthfulness of statements used in
warrants, this is typically done in secret, with no one from the general public actually witnessing this.
The author also implies that judges may be reluctant to rule that a warrant is invalid, since this usually
means that they may have to rule against a fellow judge and colleague. Also, Cicchini provides a
particularly insightful discussion regarding the good-faith exception that permits officers to search
an individual’s home, even if a warrant is defective. He asserts that this is among the most dangerous
exception to the Constitution. And, the author argues that the police are not required to inform homeowners
that they have a right to refuse to have their houses searched. As a result of this, he contends
that police may simply keep asking to be admitted into a dwelling until the homeowner breaks down
and relents to a search. Cicchini asserts that the police often intimidate individuals into allowing
them into their houses; and as a result, they often do not even need to secure a warrant. The author
204 International Criminal Justice Review 23(2)
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also writes that a police officer may even outright lie and say that a homeowner provided him with
consent to conduct a search when, in fact, this was not the case.
In what proves to be another extremely insightful chapter, Cicchini explains how criminal
defendants may not always enjoy the right to confront their accusers. The author alludes to this
in the introduction of his book; however, throughout the book, he delves into this topic in much more
detail. For example, Cicchini argues that if a child is a witness to a crime, judges often put constraints
on the type of cross-examination that can actually take place during a trial. Also, the author
points out that in many cases police are permitted to read an accuser’s written statement that may
then be admitted as evidence during a criminal trial. While this might appear to be a form of hearsay,
judges often allow members of the jury to consider these statements, despite the fact that a defendant
may not have an opportunity to cross-examine his or her accuser. Cicchini writes accusers may be
reluctant to testify for many reasons. For example, the author asserts they may have ‘‘sobered up’’
since the day of the incident. Also, according to Cicchini, witnesses may be worried about committing
perjury, particularly if they are unsure of their testimony. Regardless of why a witness may refuse to
testify, the author argues that it is problematic when judges admit written statements, in lieu of an
actual witness, as this does not give the defense an opportunity to cross-examine adverse witnesses.
Cicchini concludes his book by arguing that the criminal justice system provides officials with a
perverse incentive to disregard, rather than respect, constitutional liberties. For example, he writes
that if a police officer forces a suspect to confess to a crime, at worst the prosecution cannot use the
incriminating statement at trial. Therefore, the police are no worse off than if they had respected the
individual’s right to silence. And, according to Cicchini, even if the police coerce a suspect to give a
statement, any physical evidence discovered as a result of this statement can actually be used at trial,
depending upon the state. The author also contends that it is not uncommon for prosecutors to
recklessly file criminal complaints. Cicchini argues that some prosecutors will even overcharge a
defendant and use this as leverage to extort a plea bargain agreement. He asserts that police officers
also lie in order to justify their actions and contends that both prosecutors and judges are often aware
of these lies and accept this as a part of the justice system. Throughout his book, Cicchini argues that
Americans should have a healthy distrust of the criminal justice system. He provides countless
examples of how police, prosecutors, and even judges may trample on basic civil rights and liberties.
This book is very eye opening and should be read by anyone who is interested in pursuing a career in
law enforcement. It is a concise and well-written work that would make excellent supplemental readingmaterial
for virtually any undergraduate or graduate level course related to criminal law or criminal
procedure. I strongly recommend this book. Once I opened it, I literally could not stop reading.
Bewley-Taylor, David R.
International Drug Control: Consensus Fractured. New York, NY: Cambridge University Press, 2012. 360 pp.
US$36.99 (paperback). ISBN: 978-1-107-64128-0
Reviewed by: Aislinn Murray, Georgia State University, Atlanta, GA, USA
DOI: 10.1177/1057567713480811
International Drug Control: Consensus Fractured is an exploration of globalization’s effect on drug
control policy. David R. Bewley-Taylor argues that as countries became increasingly interconnected
through colonization, technology, and human migration, so too did the countries’ issues. He contends
that drug control is a major issue of concern, given the nature of drug creation and distribution;
drugs are produced in one country, trafficked through another, and distributed in yet another. An
Book Reviews 205
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Home / Books / Book Reviews / Book Review: ‘Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer’ by Michael D. Cicchini
In 'Convicting Avery' Michael D Cicchini, an experienced criminal defence attorney, explores and explains legal and procedural rules that impacted the Steven Avery case before the jury was ever selected.
Book Review: ‘Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer’ by Michael D. Cicchini
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Probably no state legislative or Congressional session now goes by without some quipster referring to the hoary aphorism suggesting it’s best not to watch laws being made. In Convicting Avery: The Bizarre Laws and Broken System behind ‘Making a Murderer’ Wisconsin criminal defense attorney Michael D. Cicchini suggests the same could be said of watching the law being applied.
In almost every criminal trial, what the jury will hear is determined by pre-trial motions and hearings that shape and settle often significant procedural and substantive legal questions. Add in the bench conferences and in chambers hearings that occur during trial and some of what may most affect a trial’s outcome occurs out of sight and hearing of the jury.
In pointing out that this occurred in the Steven Avery case, the subject of Netflix’s popular Making a Murderer documentary series, Cicchini examines various substantive and procedural laws, rules and court rulings that shaped the case long before the jury heard any testimony. While not part of the defense or appellate teams, his book looks at the legal landscape of the Avery case. And while it necessarily is limited to Wisconsin law, where the trial occurred, its critique applies to almost all court systems.
Some of what Convicting Avery examines is already a subject of debate and discussion; other items have a much lower profile, if any. In the former category is the eyewitness identification that sent Avery to prison for 18 years for a rape DNA later established he didn’t commit. At that trial, the victim pointed out Avery as the perpetrator. Yet the jury heard 16 witnesses who said he was nowhere near the crime.
The book traces the law enforcement actions that contributed to his erroneous identification in court. Even the Wisconsin Supreme Court would later call eyewitness testimony “often hopelessly unreliable” and say erroneous eyewitness identification is “the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined.”
Arguably more pertinent and much less known is the case law courts apply during a case. The examples in Convicting Avery have two different, yet often related, themes. One is the language used by statutes, rules and courts. Another is that once a jury reaches a decision, courts make it difficult to overturn a conviction.
A prime example of language issues is a word that permeates the law, “reasonable.” Many criminal statutes consider whether a person’s actions were reasonable or unreasonable. Trial courts assess whether law enforcement’s actions were reasonable. Appellate courts often evaluate whether what a trial court did was reasonable or the reasonable effects of the actions. And the Wisconsin and federal constitutions ban only “unreasonable” searches and seizures.
Cicchini believes reasonable is the “most dreaded word” for criminal defense attorneys. “When the defense lawyer sees this word as part of a legal test or standard, he knows his client’s ship is sunk,” he writes. “The word reasonable is so vague and flexible that, when placed in even the most inept judicial hands, any law enforcement action can be justified after the fact.” Avery saw the malleability of the word more than once.
When new DNA evidence was obtained after his rape conviction, Avery sought a new trial so a jury could hear that evidence. Exculpatory DNA results certainly appear to fulfill the requirement that it must be “reasonably probable” the new evidence would produce a different result. Yet in affirming the denial of Avery’s motion, the Wisconsin Court of Appeals said reasonableness must be shown by “clear and convincing evidence,” a legal standard considerably higher than “reasonable.” And reasonableness played a major factor in his murder trial when the judge allowed items seized in the sixth search of Avery’s home, a search that on its face seemed to violate the rules governing reasonable searches and seizures, to go into evidence.
Other court-made rules played roles in Avery’s murder trial. Avery wanted to present a third-party defense; in other words, that some other person(s) killed Teresa Halbach. Yet to do so, he had to show the third party’s motive, even though that is not an element of a murder charge, and their opportunity to commit the crime. Moreover, defendants are required to present evidence “to directly connect” the third person to the crime. Thus, while the state can convict someone on circumstantial evidence, the bar is much higher for a defendant who believes someone else committed the crime for which they are charged.
A similar situation can arise in the context of Wisconsin’s preliminary hearings, the proceeding in which a judge determines if there is sufficient evidence to bind a defendant over for trial. Yet the prosecutor need not even show that its evidence meets the lesser preponderance of the evidence standard used in civil cases. Instead, the state need only show “probable cause,” all that is needed to obtain a search warrant.
Moreover, under Wisconsin case law, the truthfulness of witnesses at a preliminary hearing isn’t relevant, only whether the evidence the state puts on shows its theory of the case is “plausible.” That also means a defendant can’t call a witness at the hearing to contradict facts presented by a prosecution witness because such testimony goes to credibility, not plausibility.
Convicting Avery examines several other elements of procedural and substantive criminal law that impact trials behind the scenes, from allowing the introduction of junk science to manipulation of interrogations to the ethical obligations of both prosecutors and defense counsel. Yet Cicchini doesn’t just take pot shots at the Avery case or Wisconsin’s legal system. He suggests substantive reforms regarding the third-party defense and Miranda warnings. Still, Cicchini recognizes the difficulty of substantive reform, noting that it “rarely happens because it is the rational or right thing to do.” Rather,it tends to occur only when lawmakers “are motivated to ride the emotional wave of a single, high-profile injustice that has captured the public’s attention.”
While built around a particular case, the issues raised in Convicting Avery apply to the criminal justice system as a whole. Opposing arguments certainly exist but Cicchini makes clear he is viewing this from the perspective of a criminal defense attorney. Regardless of one’s personal opinions, the book provides a considered insider’s view of parts of the criminal justice system the public rarely sees.
Convicting Avery: The Bizarre Laws and Broken System Behind "Making a Murderer"
Image of Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer"
Author(s):
Michael D. Cicchini
Release Date:
April 3, 2017
Publisher/Imprint:
Prometheus Books
Pages:
220
Buy on Amazon
Reviewed by:
Michael Thomas Barry
In 2015 Netflix released the controversial documentary Making a Murderer, which explored the story of Steven Avery, a man from Manitowoc County, Wisconsin, who spent nearly two decades in jail for the rape of Penny Beerntsen, before being cleared by DNA evidence in 2003. After his release he sued the Manitowoc County sheriff’s department for wrongful conviction but was arrested in 2005 on charges of murdering Teresa Halbach, a local photographer.
“For every piece of evidence that initially pointed to guilt. Avery’s defense team presented conflicting evidence and also exposed law enforcement’s motives, inconsistent stories, and, at the very minimum, incredibly shoddy investigative work.”
In 2007, Steven Avery was convicted and sentenced to life in prison without the possibility of parole. In Convicting Avery: The Bizarre Laws and Broken System Behind “Making a Murderer,” author Michael D. Cicchini dissects the tangled legal procedures and sketchy evidence that was used to convict Steven Avery and Brendan Dassey. The author himself is a criminal defense attorney in Wisconsin, blogger, and author of several legal books that includes Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (2012). He is also a contributing columnist for the Wisconsin Law Journal.
At the beginning of Chapter two Cicchini writes, “When I first opened my criminal defense practice . . . I started with a naïve belief that trial judges would be wary of wrongfully convicting an innocent defendant . . . but after a few months of practicing law, I completely abandoned my unfounded beliefs and stood corrected.”
By scrutinizing key evidence in the Avery case such as tainted physical evidence, dubious witness testimony, and illegal police searches, Cicchini skillfully examines and explains the legal how’s and why’s of these controversial convictions. He successfully uses the Avery case to highlight police misconduct and the obviously broken Wisconsin legal system while convincingly demonstrating that the injustices perpetrated against Avery and others were not an unusual occurrence. Cicchini writes, “Wisconsin loves its massive, draconian, ever-expanding, and increasingly irrational criminal justice industrial complex.”
Convicting Avery will most definitely captivate fans of the documentary, and while Cicchini had no direct involvement in the Avery case, this book adds expert legal depth to the key procedural and evidentiary issues that were raised in the original documentary. It provides a rare glimpse inside the complex American criminal justice system.
Although this book certainly assumes that the reader is acquainted with the Making a Murderer documentary, the author’s writing style and concise analysis allows those not familiar with legal terminology to easily comprehend the complexities of the case.
Overall, Convicting Avery is a revealing and fascinating read that will interest readers of true crime, criminal law, or American legal procedures. It will most certainly stimulate further discussions of how someone can be railroaded and falsely convicted of a crime. But regardless of your position on Steven Avery's guilt or innocence, the content of this book raises important concerns about a clearly broken legal system.
Michael Thomas Barry's most recent book is In the Company of Evil: Thirty Years of California Crime, 1950–1980. He is the author of six other nonfiction books and is a columnist for CrimeMagazine.com.
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In Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer" (Prometheus Books, 220 pages, $19), criminal defense attorney Michael D. Cicchini uses the acclaimed documentary series Making a Murderer as a jumping-off point to explore a flawed legal system.
In 1985 Steven Avery was charged with rape; despite a complete lack of physical evidence and 16 alibi witnesses, he was convicted. Nearly two decades later, DNA testing proved he was innocent. Soon after his release from prison, he was arrested again, this time for murder. Despite some serious flaws in the prosecution’s case, he was once again convicted.
Cicchini covers a lot of ground: the unreliability of victim identifications (Avery was convicted of rape because the victim wrongly ID’d him); shoddy police work (some evidence in the murder case might have been planted); tainted evidence (a bullet that was contaminated during the testing process was admitted at trial); and more. Thoughtful and well-reasoned, the book is eye-opening and frightening.
Halifax freelancer David Pitt’s column appears the first weekend of every month.
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Review: Convicting Avery by Michael D. Cicchini
DIRK ROBERTSON
Convicting Avery: The Bizarre Laws and Broken System behind “Making a Murderer” by Michael D. Cicchini is an unsettling book that gives facts and insights beyond those presented in the documentary and leaves you wondering whether the constitutional right to a fair trial is actually guaranteed where you live.
This gripping and riveting book covers the three court cases featured in the Netflix documentary Making a Murderer, but that is its only connection.
In Convicting Avery, Michael B. Cicchini, J.D., brings all his experience and knowledge as a defense attorney to the page in his analysis and overview of the case of Steven Avery and his nephew Brendan Dassey. The two were convicted of the murder of young photographer Teresa Halbach just two years after Steven Avery was released from prison after serving a sentence for the rape and beating of Penny Beerntsen in Manitowoc, Wisconsin. Avery had been charged in 1985 and spent 18 years in prison before DNA evidence proved he could not have been the perpetrator. He was in the process of seeking millions of dollars in compensation for wrongful imprisonment when Teresa Halbach was murdered.
In the opening chapters, Cicchini makes his position regarding the criminal justice system prevailing in Wisconsin clear, revealing that his fellow criminal defense lawyers often refer to the state as “Hellmouth.” He argues that Wisconsin is operating a criminal justice system that can contravene constitutional rights, laying out his evidence in a clinical, forensic, and highly understandable way. The 15 chapters and postscript cover the law, procedure, rule, and category of evidence that were featured in Avery’s and Dassey’s convictions, as well as erroneous eye-witness identifications, false confessions, and the ethics rules governing prosecutors, which are issues not only limited to Wisconsin but nationwide.
Cicchini argues that Avery and Dassey are—at best—treated unfairly, claiming that the facts suggest that they are the victims of criminal acts by agents of the state, which set them up to be convicted of a crime they did not commit. He presents his case in great detail and allows the reader to assess all the evidence to make their own decision as to whether these two men are victims or criminals who deserve all they get.
It is undisputed that innocent people are convicted of crimes they did not commit. In many cases, these wrongful convictions come to light through DNA exonerations. However, the overwhelming majority of real-life criminal cases do not involve DNA evidence, or even scientific evidence of any kind. It is therefore extremely difficult to estimate the number of wrongful convictions that occur every year in the United States. That is why it is so important that post-conviction courts and appellate courts calmly and rationally analyze all convictions and correct any injustice—or again, at least that’s the idea.
An excellent example of the post-conviction and appeals process gone wrong is Steven Avery’s conviction in the Penny Beerntsen case. The eyewitness identification aspect of that case was the subject of the previous chapter. To briefly recap the trial evidence, Beerntsen testified that she was positive Avery was her attacker. Despite her confidence, however, her initial description of the perpetrator did not match Avery in several respects. The most glaring example was that she told deputies she got a good look at the perpetrator and he had brown eyes. Avery’s booking photo, however, revealed that his eyes were bright blue.
In addition to the discrepancies between Beerntsen’s description of her attacker and Avery himself, Avery denied committing the crime, sixteen alibi witnesses testified that he was nowhere near the crime, and, most compelling of all, the state had no physical evidence linking him to the crime.
It is a fascinating read, as the author skillfully weaves the issues surrounding the cases into a wider debate about the criminal justice system as a whole—not just as it pertains to Wisconsin. The biggest strength is that, rather than just acting as a vehicle for bringing into question the accuracy of the convictions, it demands the reader examine and consider the implications of the material in a wider context than whether you think they are guilty or not. It does not attempt to replicate the television program, and I think it is stronger because of it. There is so much material that it would be easy to get completely lost in the detail, but the author makes sure that the central concept of perceived justice versus truth is never swamped by sensationalist writing.
If you were accused of a crime in in Manitowoc, Wisconsin, would you move for a change of venue to another county, if you could? And knowing that criminal law and procedure is the same throughout the state of Wisconsin, would you want to move your case out-of-state, to another jurisdiction, if you had that option?
Michael D. Cicchini also makes sure that the valid questions and issues that are highlighted in Convicting Avery never violate the identities and right-to-justice that belongs to the victims of the crimes. The point throughout the book is that if the wrong perpetrators are in prison—or if questionable actions have served to put them there—is justice really served? Or have further wrongs been committed due to the necessity for the appearance of justice. A question which remains pertinent both for Wisconsin’s criminal justice system and the United States as a whole.
Read Michael D. Cicchini's exclusive guest post “Steven Avery and the Criminal Justice Machinery”!
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Dirk Robertson is a Scots thriller writer, currently in Virginia where he is promoting literacy and art projects for young gang members. When not writing, tweeting, or blogging on the Mystery Writers of America website, he designs and knits clothes and handbags from recycled rubbish.
Read all Dirk Robertson’s posts for Criminal Element.