A Model Depicting Wisconsin Lawyer Misconduct

“The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. But no price is too high to pay for the privilege of owning yourself.”
― Friedrich Nietzsche

The Netflix documentary Making a Murderer gained world-wide viewership, including China on its video platform Bilibili (https://m.bilibili.com). The series roused interest for one, simple reason. Ask an American lawyer or school boy or girl: the American legal system is the finest and fairest in the world. Fact is, people take note when major flaws and hypocrisy clash with touted perfection, showing hollow boasting for what it is.

Critics of the documentary have pointed out that it is a biased account favouring the defendant, Steven Avery. But did the series present an accurate picture of the Wisconsin legal system? There is reason to believe so, at least in part. How do I know? Years ago, long before the documentary emerged, I wrote a book detailing legal system corruption in Milwaukee, Wisconsin.

The key elements of the corruption as laid out in my book Beyond-Outrage are the same as the elements exposed in Making a Murderer. The documentary even interviewed two Milwaukee lawyers who engaged in the identical corruption exposed in Beyond Outrage, corruption that the two lawyers hypocritically condemned on Netflix camera in Episode 10 of Season 1. The lawyers are Steve Glynn and Robert Henak.

Imagine this author’s slack jaw as he watched the two less-than-forthright lawyers appear on camera, bemoan what they themselves practice as law, and offer the public a false impression of their disgust with the existing system.

An astonishing similarity

The similarity between the legal methodology practiced in Marking a Murderer and that described in Beyond Outrage provided the impetus for this essay. I developed a model of legal system corruption from what I witnessed in Milwaukee, and as exposed in Making a Murderer. The model provides an insight into what ails Wisconsin criminal law. It indisputably applies in some cases and could well do so in many. To belie this model, courageous lawyers and journalists and a concerned public would be the requirement. While a concerned readership for the story that I told in Beyond Outrage was readily available in Milwaukee when I wrote the book, I found no respective lawyer or journalist who dared expose what had gone down in a courtroom. I abandoned the Milwaukee legal system in order to continue exposing corrupt lawyers in books and essays from Switzerland. I was lucky; that option is not available to others – all the more reason for me to endeavour to make legal system dysfunction in Wisconsin known.

The Milwaukee brand of legal system misconduct can be understood by way of an analogy, by what I name the Lawyer-viper Tribal Model. The word tribe as used here refers to a cohesive social group sharing professional values, goals and fears. In this case the tribe is a lawyer tribe concerned with violations of law and the guilt or innocence of those accused of a crime.

The purpose of any tribe, both biologically and culturally, is not to attain equality with other tribes; the purpose is to succeed and to supersede other tribes. The lawyer tribe strives for economic success and power, which are within its reach more so than for most tribes.

A tribe differs from a cult. A cult practices open veneration of or devotion to someone or something. But a tribe that is in an environment of intense emotions and subject to severe penalties for failures or misconduct can exhibit cult-like characteristics, especially a decline in personal awareness of wider social values. Such a tribe would also assert absolute certitude in its pronouncements and would easily subsume individual will, imposing the tribe’s values on each member, who then becomes a standard bearer for the tribe. If something benefits the tribe, it is good; if it doesn’t it must be expunged through argumentation and denial.

Membership in the lawyer tribe adjusts the personal moral compass of lawyers to the needs of the tribe. This subsummation is the psychological glue that binds the tribe. Once a member is bound, the courage and independence of thought required to veer from the tribal line diminish.

It is wishful thinking and misleading myth to claim that a defence lawyer’s goal is to win a legal case. The actions taken by the defence lawyer who was exposed in Making a Murderer, and by Lawyer M. Kohler in Beyond Outrage, and countless other cases show otherwise. A legal victory that exposes the lawyer tribe or its members to criticism or complaint is a Pyrrhic victory if that lawyer finds themselves thereby ostracised. A proper description rather than the myth would be that a defence lawyer seeks to win a case within the limits tolerated by their lawyer tribe.

That is what viewers viewed in Making a Murderer; that is what readers read in Beyond Outrage.

Making a Murderer displayed a cult-like legal tribe in Manitowoc, Wisconsin. In that case, thanks to Netflix publicity, deep financial resources, and lawyers from the outside willing to challenge another lawyer tribe, the public was able to witness the rare public exposure of a defence lawyer who betrayed their own client, and the devastating results.

The defence lawyer in question had hired a private investigator to uncover evidence to be used for client defence. In place of defence, the lawyer encouraged the private investigator to find inculpatory evidence and worked with the prosecution to put his client in prison, using client money.

One lawyer in the documentary claimed that the actions of the betraying lawyer were entirely a one-off occurrence. The actions were at least two-off, as Lawyer M. Kohler did the same thing, also enlisting his private investigator, Mr. Santo Galatti, in the same manner, as described in Beyond-Outrage. Why? Because a fair trial would have revealed misconduct by tribal members and been embarrassing for the tribe.

In Making a Murderer, a “good” defence lawyer comments on how psychologically devastating the betraying lawyer’s conduct was for his client. Prior to the documentary, I had described the psychological repercussions of defence lawyer betrayal. I gave the impact a name in the book Lawyers Broken Bad: I called it the Lawyer Betrayal Syndrome,

The Lawyer Betrayal Syndrome is likely common but unreported for the obvious reason that no lawyer wishes to admit to coercing their client. The collapse of the will to continue the legal defence is often explained by the lawyer as, “My client chose to end the stress involved in their legal defence.”

Through statistics. we know that 95% of criminal cases are plea bargained. That is not because 95% of people accused of a crime are guilty. An undisputed goal kept quiet but near universal for defence lawyers is to obtain a plea bargain from (not for) their client. This is common knowledge among lawyers. Once the legal representation has settled and achieved a certain economic value, or when it threatens to consume too much energy or effort, the criminal defence lawyer turns against their client by using psychological means, deliberately exhausting the client’s will to continue. This is unethical.Try proving it.

Trial is avoided, a judge is not displeased, money was made. The only loss is on the part of the client and justice.

I must credit Nature for providing an example from which I could derive the Lawyer-viper Tribal Model of lawyer misconduct, as depicted below:

The Model … right from Nature

Lawyer tribes spawn lawyers who play the same role as the viper’s tail in the depiction. Such lawyers attract needy, often desperate clients in the hope of proving their innocence. The lawyer makes promises that he knows will not be kept (going to trial). Like the viper’s attractive tail, these lawyers are not apart from the tribe but an integral component, for they provide financial nourishment for themselves and associates. Once trapped, the legal system goes on to devour the client. The tribe, to a member, will state with absolute and assertive certitude that – whatever happened to client X – Lawyer Y did an outstanding job. No one could have done better. The tribe demands this like a manta, as if reaffirming its version of Papal Infallibility.

Names and Roles

I received just such a letter from Lawyer M. Margolis in support of Lawyer M. Kohler and Judge D. Hansher. Hansher had informed the jury in my case that I was mentally ill and got what I deserved from the legal system. To prove it, three official mental health reports were deliberately falsified to state the opposite of original reports. Three psychologists appointed by the court had reported that I was likely telling the truth about the corruption and exhibited no impaired or abnormal mental health. These pronouncements threatened the legal tribe and members who had been negligent. Accusations of mental illness would frighten the public and keep journalists away. The viper’s reach, however, did not extend to Switzerland, despite persecutor Fred Matestic stating in open court, “No other jurisdiction must ever examine this case.”

The falsified reports were submitted to the court record as official. In my case, when Netflix star lawyer Steve Glynn (also my lawyer in the appeal) saw that one court appointed psychologist had disagreed strongly with Judge Hansher’s self-serving assessment and had written a favourable report, he attempted to stop Hansher from seeing it. The reason? “It might anger the judge.”

Attorney Glynn is an excellent example of subsummation in the tribe. He literally served the tribe’s agenda to the detriment of his client in the appeal.

When a courageous Milwaukee lawyer, Mr. Mark Murphy, dared to agree with my negative assessment of Lawyer Kohler and the Milwaukee legal system, Lawyer Robert Elliott, a bully and mop-up man for tribal spills, hauled him in front of a judge: Keep your mouth shut.

Murphy turned uncourageous in a hurry. This wasn’t because of Elliott per se, but because the tribe had imposed itself tacitly.

Where does the absolute certitude so often expressed and maintained by lawyers and prosecutors come from – even when raw facts make an assertion laughable? It comes from the fear of expressing otherwise, the fear of being segregated from the tribe.

We can double-feature appellate lawyer Steve Glynn now, along with partner Lawyer Robert Henek. Both agreed that Lawyer M. Kohler had protected cronies in the Milwaukee legal system from exposure and served up a rigged trial in my case. The commitment made by both lawyers – the spider-like tail – was to expose Kohler’s wrongdoing (misleading/intimidating witnesses, deliberately concealing exculpatory evidence, placing a friend on the jury for a guilty verdict, ineffective assistance of counsel, etc). That served to acquire the retainer for the appeal. But exposure that would upset the tribe? The two lawyers punted later, deflecting responsibility away from the Milwaukee lawyer tribe. The viper’s tail had accomplish its task; the corrupt legal system took over after that.

In a sign of Milwaukee lawyer tribe desperation, Interpol, the international policing agency, was force-fed false information in an effort to have me arrested while travelling. The tactic is reminiscent of what the U.S. government accuses China of doing with its dissidents. Interpol investigated; they determined that Milwaukee lawyers were out for revenge and concealment of intra-tribal misconduct.They removed the false information from their files.

Many are the compromises a criminal defence lawyer must make to earn a living – compromises that mock theoretical law. We now have a situation where lawyer tribes, such as in Wisconsin, pick the pockets of the poor and powerless and substitute machinations for good law and justice.

I am pleased and privileged to be able to tell the story of the Milwaukee lawyer-viper tribe on my blog, and I will continue to do so.

www.markinglin.com

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