Buting for the Defense
Cancer survivor Jerome Buting on fallibility, prejudgment and the deterioration of criminal law
Published in 2012 Wisconsin Super Lawyers magazine
on November 12, 2012
Updated on March 10, 2021
Q: You’ve represented several clients in high-profile cases: Ralph Armstrong, Steven Avery, Ted Oswald. Any cases that didn’t get the media attention you felt they deserved?
A: There are. Although usually that’s good. From the defense perspective, you don’t normally get good publicity—particularly at the outset of a case—because the information is one-sided and limited. It’s coming from the criminal complaint or the press release from the police or something like that, and ethically defense attorneys are limited as to what we can say. So I don’t seek out publicity for the cases that I have. Usually my clients much prefer, you know, not to be the No. 1 news story.
Q: So is there anything you do to try to tamp down media attention?
A: Some defense lawyers prefer to make the response of “No comment,” or not to return media calls. But my philosophy is: They’re gonna do a story one way or the other. I know, particularly from working on some long cases like the Avery trial, that [reporters] have a job to do, too. They have deadlines, and expectations from their editors; so I’m generally willing to comment but obviously in a limited way. If there’s something that, ethically, can be presented that gives a little bit of the other side of the story, then I think the public is better served, and my clients are better served.
Q: Do you have an example?
A: The Avery case. The prosecutor, who’s now got troubles of his own, had a very inflammatory and prejudicial press conference that presented a story: “Now we know why Teresa Halbach was killed…” We were not even on the case at that point, my co-counsel and I.
During the trial itself, we didn’t intend on doing press conferences. But the media was set up in a room in the basement of the courthouse, and the prosecutor said he was intending to speak to them every other day, and the victim’s brother was going to speak on the other days, so we said, “Wait a minute, that’s not fair.” So we agreed to do a summary-of-the-day press conference, and I think the media balance was much better. In fact, at the beginning of the trial, even though it was still the prosecution’s case, our cross-examinations were bringing out so much information that was not yet in the public domain. [The media was] really surprised and thought, “Hey, this is going to be a closer case than we thought.”
Q: How did you get involved in the Avery case?
A: I was called by the other attorney, Dean Strang. He and I had worked on other cases, where we’d represented co-defendants, and so we were familiar with each other’s style. He thought we would complement each other well, and I think we did as the case went on.
Q: How did your personalities complement one another?
A: Dean has a very bright, gentlemanly, scholarly approach, and he was able to work with the prosecutors a little better than I was. It just developed where I had a little bit of the harder edge as the case proceeded.
Q: You were the bad cop.
A: There’s some truth to that. We weren’t intending to do good cop/bad cop, but it developed that way as the case went on.
Q: In the Ralph Armstrong case, the prosecution withheld evidence. In the Steve Avery case, Avery, exonerated of a previous crime, was then accused of a horrific crime. Do you ever feel there’s a part of the legal process that can’t be corrupted?
A: It didn’t take me very long, as a public defender starting off 30 years ago, to figure out that the system didn’t work as smoothly as you might learn in law school. It’s a human endeavor, and so all of the foibles and weaknesses and sins that humans are capable of get played out in the criminal justice system. There are a few bad cops and lots of good cops. There are a few bad prosecutors and lots of good ones. Same all up and down the line. I’m always suspicious when people talk about a process that’s infallible.
Q: In appellate law, are you mostly dealing with cases that come to you? Are you ever appellate lawyer for your own case?
A: I did one trial that we stayed on all the way to the Wisconsin Supreme Court. Generally I don’t. Usually it’s better to get a fresh set of eyes. There’s always the possibility that I could have been ineffective in some aspect and not been aware of it.
Again, there’s no such thing as a perfect trial. We don’t expect that. Unfortunately, over the last 30 years, the practice of criminal law has deteriorated in my view. The defense bar is not compensated the way it should be. You get what you pay for. Forty dollars an hour is what the public defender’s office pays for appointed counsel. It’s the lowest in the country. When I started in 1981, they paid $45 an hour in court, $35 out of court. Now it’s $40 across the board. That’s pro bono. That’s below overhead for anybody. The only people that can really take these kinds of cases anymore can’t even afford to have an office. They’re working out of their home or their car.
Prosecutors’ offices are also starved. They’re way underfunded. So a lot of things that they used to be able to do—deferred prosecutions—they can no longer monitor, so some of the counties don’t do them anymore. Whenever you underpay somebody, you increase the risk that there will be mistakes. Because people take shortcuts.
Q: But the solution, greater funding, seems at odds with politics, particularly in Wisconsin.
A: There is no political constituency that supports people accused of crimes. Most people think that if you’re charged, you’re guilty. Part of it is education. People have to understand it’s a constitutional duty. And in the long run the system ends up being more expensive because you end up having cases reversed on appeal; you have to retry them, and sometimes they get dismissed because the cases are older and witnesses disappear. Really, it’s in nobody’s interest.
On the prosecutors’ side, the way the salaries are structured, after five years, after taxpayers have invested all of this time and effort training prosecutors, their salaries are flat and they can’t afford it anymore. They leave and go off to the private sector.
Q: How did you get involved with the Innocence Project?
A: I knew Barry Scheck from work that I had done with the National Association of Criminal Defense Lawyers. He called me up one day and said, “We’ve got this case in our office”—they get solicited from inmates all over the country—and he said, “We’ve got one in Wisconsin that looks pretty thin. We’ve looked at the transcripts, and the conviction seems to be based on flawed eyewitness testimony and what appears to be pretty shaky forensic science.” He asked if I’d work on it with him, and I said sure. I had no idea I was going to get on a case that would last almost 15 years. We got on that case in 1994 and it was finally dismissed in 2009. The state kept fighting but ultimately it was dismissed for prosecutorial misconduct and destruction of evidence.
Q: So once it was all over, did you hear back from Scheck? “Hey, you’re free now. We’ve got another case for you.”
A: I haven’t actually been—what’s the word?—recruited yet for another case. I think they’re giving me a little time off.
Q: The Innocence Project helped Avery get released for a previous crime only to have him charged with the rape and murder of photographer Teresa Halbach. How did this affect perceptions of the Innocence Project in Wisconsin?
A: Initially the perception was bad—again, in part, because of the very inflammatory press conference. Avery was convicted, his case had gone through its direct appeals, but he continues to maintain his innocence, and I continue to believe the evidence was very suspicious in the case. The original jury—I think when they went out their first vote was seven “not guilty,” three “guilty,” and two uncertain. Then they deliberated for four and a half days before they finally convicted. So it was not a slam-dunk case. I think his fight for justice is going to go on. It may take a long time before the truth comes out.
Q: Do you think of matters of guilt and innocence when meeting clients? Try and suss them out in some way?
A: You have to be careful. I learned a lesson when I was a public defender. One day I was at intake court. I must’ve had 20, 25 felons that I had to interview quickly. You had to open 15 new felonies every single month. The primary focus at the initial appearance is bail—that’s really the only issue. Is the person indigent? If they’re indigent, the public defender can represent; and then it’s a question of what should the bond or bail be. I found myself pressured to the point where you’d quickly read the complaints, and do a quick review with the client and say, “Is this true or not?” So you’d get an idea whether this was going to be a difficult case to defend or a relatively easy one where there was going to be some sort of plea bargain.
One defendant, I read the complaint to him and he denied it. He said, “That’s absolutely not true.” The complaint made it look like it was an open-and-shut case. It was a burglary, he was caught red-handed, but the defendant was maintaining his innocence. He gave an explanation that sounded pretty preposterous, and I just assumed this guy was guilty. I went back to my office, and I was talking to some of the other attorneys, and I said, “This is kind of a ridiculous defense.” One of the other attorneys said, “Well, I’ll take that case.” And it turned out that the guy was telling the absolute truth; he was completely innocent.
So I realized: What good am I as a defense attorney if I’m prejudging whether somebody is guilty or innocent? You can’t do that and be an effective attorney. Sometimes the pressures of your practice force people to make shortcuts they wouldn’t otherwise take; and it was at that point I realized that I had to move on, that I couldn’t practice at that volume level, and ever since … The way I set up my practice, we deliberately do not do a high-volume practice. We take fewer, bigger cases. I much prefer being able to dig into the details and really look at a case carefully—which I found out I wasn’t able to do as a public defender.
Q: What drew you to the law in the first place?
A: I was always interested in court dramas, growing up with Perry Mason and Judd for the Defense. I’d always liked mysteries as well. And the two kind of went hand in hand.
Actually, when I started off in college, I was an astronomy major. But within the first month I realized it wasn’t the kind of social atmosphere I wanted to work in. A good hobby, but I had much more interest in people than my fellow astronomy students. Back then, if you were an astronomer, it basically meant you were sitting on a mountaintop all night long, all alone, looking through various telescopes. So I switched my major over to forensic studies.
From that point on, I was always interested in criminal defense. I did spend one summer in a prosecutor’s office in Washington, D.C. I worked for several different prosecutors: researching memos, suppression issues, Fourth Amendment, searches or statements. Most of the assignments I’d get, I’d come back with memos saying, “This is an illegal search” or “This is an improper statement.” And they’d laugh. They could tell I was not cut out to be a prosecutor.
Q: On the other hand, if you had become a prosecutor, you might have saved the state a lot of money: by not prosecuting those cases.
A: That’s true. Prosecutors can do justice as well. You can do a lot of good. It’s a funnel: You can try to separate the innocent from the guilty early on. But I just knew if I was working in a prosecutor’s office, particularly starting off, you don’t really have the flexibility to make those judgments, because there’s office policies. I just didn’t think I would be a good fit.
Q: Did you grow up in Indiana?
A: Indianapolis. My father was a chemist. My mother and father met at Purdue—they were both in organic chemistry. My dad ended up getting a Ph.D. and my mom a master’s. When they married, my mother was a stay-home mom. We had seven kids.
Q: What number child were you?
A: Three. In fact, after the fifth one, and five kids in about seven, eight years, my father realized he was going to have a hard time supporting a family on a chemist’s salary. So he went to law school, at night, for five years, and became a patent attorney.
Q: Didn’t that affect your career choice? Your father more than Perry Mason?
A: My father’s practice interested me as well. At one point, I was interested in patent law. But you really have to be better in science than I am. You have to have a degree in engineering or chemistry or something like that to work in the Patent Office.
But certainly his work ethic and attention to detail, even the way of thinking that you get when you go through law school, I’m sure rubbed off on me.
Q: Did you have a mentor at the Public Defender’s Office?
A: I had a number of them. We had a very collegial office. That year, in fact, they made a concerted effort to bring in young lawyers, new lawyers, from out of state. They actually went out and recruited a number of them. I was in law school in North Carolina, Chapel Hill; and starting with me at the same time were brand-new lawyers from Georgetown, Boston, Virginia. So we all worked together, shared our cases together, brainstormed together. And we had good leaders in the office: Kevin Dunn; Rod Uphoff. They were supportive enough to allow us to go and actually watch trials when some well-known attorney was trying a case: Jim Shellow, Bill Coffey. Those were two of the best attorneys at the state at the time. Sometimes you learn the most just by watching somebody else good do the same thing you have to do.
Q: Any moment watching either Shellow or Coffey that stands out?
A: Maybe some voir dire techniques.
One of the other things that really helped: After my second year, I was able to go to the National Criminal Defense College, which at that time was in Houston. Now it’s in Macon, Georgia. It’s a very intensive two weeks of workshops, where there’s a fictitious case you work on. You get to not only practice and get critiqued and videotaped as you do everything from jury selection to cross-examination to opening and closing statements, but you also see one of the masters do a presentation for the whole group at the end of the day on the very thing you were working on. I still think that’s the best way to learn.
Q: Anything from the workshop that stays with you?
A: Jury selection’s always been the biggest challenge for me. It’s difficult to get people, complete strangers in an open room with others, to start talking about themselves. It’s an awkward process we have. It’s a little easier when it’s a high-profile case and you have individual voir dire, but even that’s awkward. Because then they feel they’re on the hot seat. You have to work to put people enough at ease to really examine their own conscience and see if they can be fair. My wife [Kathleen Stilling, a partner at Buting, Williams & Stilling] is particularly good at that. She’s got a manner about her—I call it the cocktail party approach—where you can meet strangers at a cocktail party and get them to talk. She’s able to do that in the voir dire. We’ve tried many cases together, and without question she’s the one who takes the lead when it comes to voir dire.
Q: Is it true you were diagnosed with cancer on, of all days, Sept. 11, 2001?
A: Yes. I was in the doctor’s office being told by the expert oncology surgeon that [it was] almost certainly cancer, and he could practically predict which type, and that I would have a very long year ahead of me. Then he leaves the room for a few minutes. “I’ll let you two talk.” I was there with my wife. We were stunned and shocked. Then he comes back and says, “A plane has hit the World Trade Center and it’s collapsed.” We looked at each other like, “This guy’s nuts, let’s get out of here. It can’t be.”
It was a very surreal feeling. Most cancer patients will tell you this: You go through phases. The first one is shock. Cancer is such a scary word and has such a finality to it. I was only 45 years old. I wasn’t thinking I was dying anytime soon. I remember driving home and hearing all this stuff on the radio. The nation was going through this horrible crisis, but I was going through this very, very personal crisis that made it feel like, “Does this really matter? What’s happening to my country? But I could be dead in a few months and what impact will I have had on the world during my life?” All of these kinds of thoughts go through your head.
My doctor was right. It was a very rare cancer, it was a very dangerous cancer, but I had very good doctors. I had 13-and-a-half hours of surgery. After chemo, and radiation, and more chemo, it was a miserable year, but I had very supportive people. My partner. Both partners because my wife is a partner as well. She was able to take over most of my cases; some of them I had to farm out. But I was blessed to be able to survive—to beat the cancer. It’s been 11 years. It definitely gives you a different perspective on life.
Q: Is that perspective fundamentally different than the one from before the diagnosis?
A: In some ways, yes. In some ways, it’s a constant battle not to slip into the old habits. I’ve talked to some war veterans who say the same thing. When they come back from a combat situation to their former comfortable life, they swear, “I’m never going to take this for granted. I’m going to have a whole different outlook.” That works for a while. But then real life intrudes. There’s a lot of pressure to get back into the rat race. You have to make a conscious effort not to do that.
One of the benefits of having our own law practice is that you have flexibility: to take cases or not take cases, or try and schedule around time you need to spend for your kids’ activities. Both of our kids are going to be in college now—my daughter starts in the fall—and I feel like we were able to take a lot more time and focus on family and things that maybe I wouldn’t have [otherwise]. I might’ve been one of those people who wakes up when their kids go off to college with a lot of regrets, wishing you’d spent more time with your children.