Serial caused a sensation when it first aired in 2014. Examining a miscarriage of justice, it became the fastest podcast ever to reach five million downloads.
Following in its wake, Making a Murderer caused a similar stir when it streamed on Netflix in December 2015. Filmed over the course of a decade the documentary series explores the story of Steven Avery, a man who served 18 years for a rape he did not commit, was exonerated, only to be arrested again on charges of murder.
Avery said he had been framed: Making a Murderer uses his case to examine the failings of the US justice system.
Between them, the two shows have thrust miscarriages of justice into the public eye – and at an opportune time.
Here in Britain, the criminal justice system is being stretched to breaking point. A 2016 report by the parliamentary Public Accounts Committee described it as “bedevilled by longstanding poor performance, including delays and inefficiencies”, and warned that government cuts are affecting the ability of courts to deliver justice. The danger of wrongful conviction looms large.
Increasingly, universities are starting to step into the breach, and for students at the University of Essex the premise of Making a Murderer is not too dissimilar from their real-life coursework.
Essex runs a module called ‘Investigating Miscarriages Of Justice’ in which third-year students take a real-life alleged miscarriage of justice case and look back at the evidence to see if there are grounds for submitting an application to the Criminal Cases Review Commission for the case to be referred back to the Court of Appeal (CoA).
“The whole miscarriage of justice idea has just blown up in the public imagination,” says Josh Gulrajani, one of the students on the module. “Now, when I meet someone and tell them I’m studying law they immediately ask ‘Have you watched Making a Murderer?’ and I can say I’m on a module that does the same thing.”
Investigating Miscarriages Of Justice has been running for two years under the leadership of Professor Richard Owen, and is only open to a limited number of Essex’s third-year law students. Client confidentiality rules mean those on the module cannot say too much about it, so it retains an aura of mystery on campus.
“We didn’t know anything about it before we started,” says Gulrajani. “I knew someone who did the module last year, and when I came to pick my options I got absolutely nothing from him.” He mimics his friend: “’I have signed a confidentiality agreement. I can’t tell you anything. You will get a case and you will appeal it. That’s all I can say. Pick it if you want’.” He laughs. “I think that made it a bit more appealing.”
Gulrajani and his fellow students on the module take the confidentiality rules seriously and are not giving anything away, but what they can reveal is that they are working on two British murder cases referred to them by charities Inside Justice and the Centre for Criminal Appeals.
Inside Justice has assigned them a client who has served more than 10 years of a 30-year sentence but maintains his innocence. The Essex Uni team’s role is to examine the case files in an attempt to see if there are any investigatory routes they can go down that could cast doubt on the safety of the conviction and get the case to the CoA.
In this case, there clearly are questions to be asked over the safety of the conviction.
“My big worry was we’d get given a completely solid case, spend a year working on it and I’d have to submit 6,000 words at the end about how I basically agreed with what went on,” says Gulrajani. “That would have been really uncomfortable for me, but as it is we’ve got a case where there are a lot of questions.”
Difficult and time-consuming
But actually getting the answers to those questions is a tough job. If this was a Hollywood blockbuster it would get cut down to a montage of the hero sitting in libraries and working through piles of papers. In reality, it is difficult and time-consuming.
“We’re essentially going through all the files we can get,“ says third-year student Marthe Rossaak. First the team has to request them, then comes a frustrating wait until they arrive,” then we try to read in between the lines – why is this part missing, why has that been underlined, does that make sense?”
The students are split into two teams, one on each case. While Rossaak’s had literally thousands of documents to work with – “finding the ones we could use was like finding a needle in a haystack,” says her colleague Keri Trevillion – the other group had the opposite problem.
They had far fewer documents, and what looked like a key one was heavily redacted.
“We went to the Inside Justice Advisory Board and everyone was stumped for an answer as to why it was blacked out,” Gulrajani says.
A Freedom of Information request was eventually necessary.
“It was quite good fun, actually,” Gulrajani recalls. “We were given something that was absolutely useless to us and had to figure out a legal way to make it more useful.”
“This module teaches us more about how to research than any other,” he continues. “In others, you get given a book and three or four statutes and it’s just about finding the cases, whereas with this one you literally start from scratch.”
In their attempt to get the blacked-out document unredacted the Essex team ended up finding Innocence Projects elsewhere in England that had managed to get it done, as well as sections of the Data Protection Act they could use – “all sorts of things from completely different places,” says Gulrajani, “You find yourself scrutinising things just in case they might be useful.”
It sounds like an almost obsessive pastime. Is this module swallowing up their lives?
“Compared to other modules it takes up more time, but it’s fine because we feel we’re responsible for something,” another student, Schiba Esmailpour, pipes up. “There’s a person in prison waiting for us to get somewhere so that motivates us. You can’t take files home so you sit there and go through your notes again and again just in case you missed something – you wouldn’t do that for other modules!”
Crime scene investigations
There is more to the work than sifting through piles of documents, however. Even deciding which lines of enquiry to pursue is a tactical exercise – there are so many avenues to explore and not all will bear fruit.
“We found so many things that we really wanted to use,” says Esmailpour. “When we bring them to Richard he always says: ‘So what?’ He really forces you to ask yourself: ‘Yes I found this out, but does it really help my case? Does it give some good solid ground to appeal?’ If not you have to focus on other things.”
A visit to the crime scene helped the team make sense of the piles of witness statements and supporting evidence.
“You build a picture reading the witness statements and then you actually go and see the site and realise it’s nothing like what was in your head,” says Trevillion . “Loading up Google Maps and trying to work out which alleyways people went down was horribly confusing. Once we went up there we saw how it all fitted together and why witnesses were able to hear and see things.”
Losing faith in lawyers
Having worked on this case, do the Essex students have more or less confidence in Britain’s criminal justice system?
Snorts of derision greet the question.
“Not so much the justice system, but it’s led me to lose faith in a lot of lawyers, says Gulrajani. “Without saying too much, the defence team who worked on our case was nothing short of abysmal. They’ve gone through more education than we have but even we could see…” He tails off for a moment. “What were they thinking? Were they asleep?”
“It used to be all about commercial because that’s where the money is, but now students are talking about criminal law again”Keri Trevillion
Despite this cynicism about lawyers, at least one student in the group has been converted to the idea of working in criminal justice as a career.
“I wasn’t at all interested, but after doing this module I’ve applied to do a Masters degree and I’m hoping to go into miscarriages of justice later,” says Esmailpour.
“People are getting excited about it,” adds Trevellion. “The second you mention the justice project to new students, everyone’s like, ‘How do I get on it?’ And there are more people talking about doing it as a job.
“It always used to be all about commercial because that’s where the money is, but now students are talking about criminal law again.”
“With the cuts to legal aid some students will still be deterred,” concedes Gulrajani. “That’s not a good thing but it will mean a lot more people coming to students for help because we are free legal knowledge.
“That might be a good thing in the long run in terms of getting people passionate. There will be students with no plan of working in criminal law who take modules like this and change their viewpoint.”
‘It’s about justice’
Working on the case has been an inspiring experience for the students. The only disappointment they have: “We don’t get to the end.”
The sheer amount time it takes to get hold of the relevant documents means an academic year has not been enough to reach a conclusion.
Examination of the case will continue in 2016/17, but with a new generation of students. Esmailpour, Rossaak, Trevellion and the others on the module have left university for the big wide world. Gulrajani is staying another year at Essex as a vice-president of the Student Union, but will not have access to the day-to-day life of the project.
“I’ll be pestering Richard for updates!” Gulrajani jokes, before taking a philosophical stance: “Okay, we didn’t finish, but we’ve set some good foundations and found some good things – things I’m proud of.”
And what of the man sitting in a prison cell somewhere?
“We get 20-page letters from him,” says Esmailpour. He’s very open, saying that no-one’s has ever gone to this much trouble or looked into his case in this much depth before. It’s lovely to get that feedback, but it does make you think – what were they doing at trial?“
“It’s important to detach yourself,” adds Trevillion. “If you start out thinking of the murder victim there’s no way you’re going to look at those papers in an unbiased way. Equally, you can’t assume your client is innocent because that brings the same problem.”
“We’re fighting this because we believe it’s a miscarriage of justice,” concludes Gulrajani. “I decided quite early on that regardless of whether or not he had done it, there was simply not a solid case against him. Once I’d decided that, it became a lot less relevant whether he was guilty or not.“
“It’s not about guilt or innocence; it’s about justice.”
Value of a ‘fresh pair of eyes’ on a case
“The miscarriage of justice module at the University of Essex was established as part of an expansion of clinical activities in the Law School. A number of options were given to students as to how the they would like to see the clinic develop and the miscarriage of justice project proved to be the most popular choice.
“We started in October 2014 with a case referred to us by Inside Justice and the following year we started working with an additional partner, the Centre for Criminal Appeals. Already, students have assisted in a case that has been referred to the Criminal Cases Review Commission and another will be referred soon.
“It’s probably the definitive example of research-led teaching. One minute we’ll be researching something intensely practical such as the weather at a particular location on a date 10 years ago, the next we’ll be looking at areas of more conventional legal research such as the directions a judge is required to give to the jury in a particular situation.
“Students are given an eight-week induction which includes a simulated crime scene investigation with a senior forensic scientist, then they work in teams on their case. We also try to get students to meet victims of miscarriages of justice or their families to see first-hand the devastating effect it can have.
“Assessments are completed individually and tied in to the students’ casework. This approach has proved popular with our partner organisations, as well as clients, because tangible progress is made on the case working to a tight deadline. It is also significant that the university has made it part of the curriculum as it means there’s much more tutor involvement than with a purely extracurricular project.
“Students are told that the most valuable thing they bring to the project is a fresh pair of eyes. It is easy to become blinkered in your thinking so it’s important even for experienced practitioners to take into account the opinions of bright, eager people who come to a case afresh.
“It has been the most rewarding experience of my teaching career. When you see people who were novices in October come up with points that seriously impress QCs by April you know you’re onto an educational winner.”
Professor Richard Owen, director, Essex Law Clinic
In 2014 a group of Cardiff University law students successfully proved the innocence of a man convicted for murder.
Dwaine George spent 11 years in prison for the 2001 shooting of 18-year-old Daniel Dale in Manchester. He was jailed for life in 2002, eventually being released in 2013 on a life license.
George claimed to be innocent throughout and his case was taken up by the Cardiff students working as part of the university’s Innocence Project, where students work under the supervision of solicitors and barristers on cases of long-term prisoners who maintain their innocence.
The Court of Appeal quashed George’s conviction in December 2014, ruling that new scientific evidence relating to gunshot residue found on a coat at George’s home on his arrest in 2001 meant his conviction was unsafe.
In his judgment Sir Brian Leveson thanked the students involved in the case, saying: “In addition to expressing our gratitude to the Criminal Cases Review Commission we pay tribute to the work of the Innocence Project and Pro Bono Unit at Cardiff Law School, which took up the appellant’s case and pursued it so diligently.”
This article appears in Lawyer 2B’s autumn issue. Essex University students can pick up a hard copy at their law fair tonight (Thursday 10 November) from 6.15pm. We look forward to seeing you there!