The vocation and faith of 'Making a Murderer' defense attorney Jerry Buting

  • Jerry Buting. (Submitted photo)
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Six years ago, while working on the staff at a parish in suburban Milwaukee, I led a small group of adults through a 30-week process of prayer, reflection, education and action in the Catholic social justice tradition. The program, one of the offerings from the fabulous JustFaith Ministries, was a powerful experience of community and faith in action.

Two of the very thoughtful, faith-filled members of our group were Jerry Buting and Kathy Stilling, a married couple who worked together as criminal defense attorneys. I was always inspired by the way their faith influenced their work -- work that, with its emphasis on justice and fairness, had in turn led them to take this deep dive into Catholic social teaching.

In recent weeks, I've seen Jerry for the first time since I left Wisconsin, but not in person. Instead, I've seen him on my TV and all over the Internet because one of his former clients, a man named Steven Avery, is at the center of the chilling Netflix documentary series "Making a Murderer." (If you're not familiar with this extremely popular series, read this review.) Jerry and his fellow attorney Dean Strang represented Avery in his 2007 murder trial, and both lawyers' fierce intelligence and deep compassion are displayed prominently in the documentary.

I emailed Jerry a few questions about his work and his faith, and, despite the media storm he's in these days, he graciously replied with characteristic insight and candor.


NCR: What drew you to the practice of criminal defense law?

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Buting: I always identified with the underdog, and criminal defendants certainly fit the bill. Perry Mason was a positive role model for an aspiring criminal defense lawyer growing up, but by the time I hit college it was clear that the practice had changed dramatically. Court dockets were exploding, more and more conduct was being defined as criminal that may have only constituted a civil dispute previously, poor people were being disproportionately prosecuted and punished more severely than anyone of means, and the advent of staffed public defender programs was occurring in some states and counties.

I was a forensic studies (now called criminal justice) major in college at Indiana University and gained a broad knowledge of systemic issues affecting the justice system. After college I went immediately into law school at UNC-Chapel Hill, with the idea of exploring what the practice of criminal defense was really like. I quickly learned that the traditional law school Socratic method of lectures did little to provide a real-world experience of a legal career, but it did train my mind to think in a particular way that was invaluable to spotting issues and making decisions on a client's behalf. I enjoyed the clinical training in law school even more, and that was a method still in its infancy at the time. The UNC law school clinic allowed me to have real clients and make court appearances under the guidance of supervising lawyers.

By the time I was done with law school, I knew I wanted to be a public defender, with a daily court practice representing those too poor to hire their own counsel. The Wisconsin State Public Defender Office was a relatively new entity but had very respected leaders, so that's why I came to Wisconsin. I worked there almost nine years before going into private practice, first with another firm, then started my own in 1993 with another partner. My wife, also a criminal defense lawyer who I met as a fellow public defender in the Milwaukee trial office, joined the firm in 1995 when our children were one and three years old. 

Do you see any overlaps between the values at the heart of your work and those at the heart of your faith?

My wife and I both look at our careers as more of a vocation than a job. Jesus reached out to the underclass of society, including the poor, mentally ill and imprisoned, and so did we. They are humans the same as anyone, but often are cast aside by the rest of society. Unfortunately, society doesn't want to provide the financial and other resources for those who are charged with or convicted of crimes.

What has happened in Wisconsin to indigent defense during my career is illustrative. The staff public defenders are salaried attorneys with good support staff and training, even if they have caseloads that are too high. But only about 60 percent of indigent defendants are represented by staff public defenders; the rest are appointed to private lawyers who agree to take those cases.

When I came to Wisconsin in 1981, those private, appointed attorneys were paid $45 per hour for time in court, $35 for out-of-court time. They had to pay all overhead, clerical, insurance, etc., costs out of that fee.

Now, almost 35 years later, those lawyers are paid only $40 per hour, way below overhead costs alone for any good lawyer. Wisconsin, once a shining example of progressive ideas, now has the lowest hourly rate of any state in the country, including traditionally poor Deep South states. It's a disgrace and an embarrassment, but repeated efforts to get the legislature to increase the rate have failed, because the public assumes all defendants are guilty and it's a waste of money. The quality of lawyers willing to take such cases has suffered, and the documentary 'Making a Murderer' illustrates what can happen to a 16-year-old borderline mental capacity defendant who does not have good counsel in his corner. The outcry over the practices reflected in this documentary may help. My criminal practice is privately funded now, but I continue to work on systemic changes to improve indigent defense through various committees and public advocacy.

When I have a client facing a serious criminal charge, I always encourage them to develop or deepen their spiritual life. They don't always take my advice, but that's always their choice -- even with regard to legal advice. I've found that those who have a faith life can endure the challenges of a criminal prosecution for themselves or their loved one much better than those who do not. My practice also makes me keenly aware of the blessings I have in my life, and I feel obliged to help those who are not so fortunate. Catholic social teaching helps keep me on the right path, as well as daily prayer for spiritual guidance. 

What did you learn about our society through your participation in the Steven Avery trial?

There are so many lessons presented in the documentary 'Making a Murderer,' and the viewers have to decide which ones to take to heart: The effect of media portrayals of guilt before a trial begins, the tendency to uncritically believe whatever narrative law enforcement and the prosecution disseminate, the abandonment of the presumption of innocence, the casting aside as worthless those fellow human beings who are different than us and somehow 'beneath' us, the effect of class and money and power in a criminal case, the unlimited resources of the government that can be brought to bear against the individual.

These are just some of the issues people in this country need to confront. There are many injustices occurring every day in every part of the country; the ubiquitous presence of cellphone video during police confrontations provides but one example of this. America has a great system of justice on paper, but the reality is much less defensible and often downright disgraceful.

Do you ever feel tension between representing your clients and feeling sensitivity toward the victims of crime? If so, how do you navigate that tension? If not, why don't you feel tension there?

I don't find much tension there at all. My job is to represent the citizen accused. The alleged victim gets plenty of support from prosecutors and victim/witness advocates. I emphasize 'alleged' victim, because whether someone is in fact a victim is often not clear until a jury or judge has spoken. Sometimes the party labeled 'victim' is simply the one who goes to the police first. We have to be careful not to assume that anyone's accusation to the police is true. There are many complicated aspects of human nature that can motivate people to make false accusations. That has always been the case, and there are many examples in the Bible. One of my favorites is Psalm 109, which begins: 

Be not silent, O God of my praise! For wicked and deceitful mouths are opened against me, speaking against me with lying tongues. They beset me with words of hate, and attack me without cause. In return for my love they accuse me, even as I make prayer for them. So they reward me evil for good, and hatred for my love.

Of course, there are many cases where the status of a person as a victim is not disputed by the defendant. An example may be homicide by intoxicated operation of a motor vehicle. The loss of a loved one is these kinds of cases is tragic, and hearing the pain their families express in court at sentencing can be gut wrenching. I'm sensitive to their pain, but I find there is often a great deal of pain among the defendant and his or her family as well. There are no winners in such cases; everyone loses. The judge must decide upon a just punishment in those circumstances, and my role is to explain who the defendant is, why this tragedy occurred and how it can be prevented in the future. 

In addition to Psalm 109, is there another particular Scripture passage, saint or other element of Catholic tradition that particularly inspires you in the context of your work? 

St. Stephen has always been a favorite for his legal advocacy on behalf of Jesus that cost him his life. As two lawyer-parents, we named our son after him. 

[Mike Jordan Laskey is the director of Life & Justice Ministries for the diocese of Camden, N.J. He blogs for the Camden diocese at camdenlifejustice.wordpress.com.]

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December 2-15, 2016

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