The first sexual assault case and the subsequent murder case are two very different cases.

The sexual assault case where Steven Avery was wrongfully convicted relied on eyewitness testimony, including an identification and a photo lineup. These are highly questionable pieces of evidence, especially in light of social science research about the problems with eyewitness identification.  At the time of the trial, there was no DNA testing, which ultimately amounted to new evidence. New evidence was uncovered later, which exonerated Avery and demanded a reversal.

The murder conviction which is the subject of “Making a Murderer” was based on scientific evidence, physical evidence, circumstantial evidence and common sense, which all supported a conviction in the minds of the 12 deliberating jurors who found Avery guilty. The documentary “Making a Murderer” is not new evidence. “Making a Murderer” is a one-sided presentation of the defense arguments and theories that were previously presented and argued to the deliberating jury.

Here is an example to illustrate my point. The Denver Broncos played the Carolina Panthers in this year’s Super Bowl.  Peyton Manning and the Broncos defeated the Panthers by the score of 24-10. If someone who didn’t see the game watched a highlight reel of all the good Panthers highlights and all the Bronco’s mistakes, that person would understandably be very confused when they were told that the Bronco’s won.

I am not saying that I believe Avery is guilty. It is simply frustrating to me as a criminal defense attorney and former prosecutor that viewers of “Making a Murderer” can watch the documentary and come to as an informed conclusion as did 12 jurors after a five-week trial in which the only evidence presented in the courtroom was in accordance with the Rules of Evidence and vetted through direct and cross examination.

Avery’s Attorney Dean Strang said it himself in the episode entitled “The Great Burden” (at 11:02) where Strang tells the jury, “You can decide this case, if you choose, on the evidence in the courtroom and only the evidence in the courtroom. You have the power to do that. So I ask you, please, give it your full and fair consideration. Do that critically here as citizens of Manitowoc County, where we stayed to pick a jury.”

Avery’s advocates point to the “Making a Murderer” documentary as proof of his innocence, even thought the documentary contains only some of the evidence presented, inadmissible narratives and countless inadmissible declarations of innocence by Avery and his family, and simply does not present the entire record.

I will admit that “Making a Murderer” is very persuasive and there were many areas of concern raised by Avery’s very experienced defense attorneys. However, I place more credibility in a 12-member jury who heard all the evidence during a five-week trial who unanimously found Avery guilty.