January 31, 2016

What’s Wrong With “Making A Murderer”?

Making A Murderer is generating huge buzz on social media; dual petitions calling for Steven Avery’s exoneration have garnered more than 600,000 signatures to date. But after slogging through the 10-hour Netflix “documentary,” I was left feeling disturbed by the drama’s narrative and premises. Here's why:

1. The narrative is grossly misleading.

The hook to this story is protagonist Steven Avery’s prior exoneration: He served 18 years in prison for a rape of which he was ultimately exonerated by DNA evidence; just three years after his release, he was arrested for the unrelated murder and mutilation of another young woman in rural Manitowoc County, Wisconsin.

It’s an intriguing hook. But others – including the superb podcasters at Radiolab in 2013 – had already mined it. So filmmakers Moira Demos and Laura Ricciardi went for a different twist: Avery was innocent, framed by corrupt police whose reputations were tarnished by the wrongful conviction scandal.

Viewers are treated to interminable audio clips of the convicted killer proclaiming his innocence and whining about the injustice of it all. With its sympathetic focus on Avery and his socially marginal family, the documentary excludes much of the hard evidence pointing to Avery.

Perhaps the most blatant example of misinformation is the portrayal of Avery and his victim as strangers. In fact, the evidence presented at trial suggested that Avery not only knew Teresa Halbach, a photographer for Auto Trader magazine, but was targeting her. After a photo assignment at his family's auto salvage yard in which he greeted her wearing only a towel, she complained to her bosses that she was “creeped out” by him. Yet he continued to call and ask for her to be sent back out. Phone records revealed that on the day of her murder, he repeatedly called her cell phone, using *67 to block his ID. Not only was her cremated body found in his burn pit just a few steps from his trailer, but two separate witnesses testified they had seen Avery putting items into a barrel of his from which police later recovered her incinerated cell phone and camera. Avery's nephew also told police he had helped Avery hide the victim's vehicle in the salvage yard, and DNA evidence of Avery's sweat under the hood corroborated his account.

This brief list is not exhaustive; there's lots more inculpatory evidence that the series omits or glosses over.

2. It lionizes a sexual predator.

There are plenty of sympathetic characters in prison. A great many of them are unquestionably guilty. Steven Avery – innocent or guilty – is not one of them. He comes across as shallow, callous and self-absorbed, fitting the part of a cold and calculating predator.

Prisoners who served time with him during his first bid confirmed that he was not a nice guy. They told investigators that he showed them diagrams of a torture chamber he planned to build when he was released, so that he could "torture and rape and murder young women.”

There is further evidence of tremendous rage toward women. While in prison, he threatened to mutilate and kill his former wife. And despite his exoneration in the original rape for which he was convicted, prosecutors presented evidence in a pretrial affidavit of two other rapes of girls and women for which he was never prosecuted. There are also allegations that he sexually molested child relatives, including his codefendant and nephew, Brendan Dassey.

Perhaps most ominously, just three weeks before Halbach’s murder, he bought a set of leg irons and handcuffs, suggesting that the crime was premeditated and elaborately planned.

It is only if we know this background information -- excluded from the Netflix series -- that we can make proper sense of the trial judge’s admonition to Avery at his sentencing hearing:

“You are probably the most dangerous individual ever to set foot in this courtroom.”

3. Journalistic bias of this magnitude is unethical.

Filmmakers Laura Ricciardi and Moira Demos
In several drawn-out scenes, the filmmakers depict the TV news crews covering the trial as bottom-feeding hyenas, lacking any compassion or mercy as they circle and nip at the heels of the beleaguered Avery clan.

This is a clever cinematic device. It imparts the illusion that the documentarians are above the fray, more neutral and trustworthy than the media rabble. 

In reality, they are no less superficial. We get no greater clarity, and certainly no deeper analysis. The difference is merely one of perspective. Lengthy scenes in the Avery kitchen, watching Steven's mother Dolores prepare and eat her lunch, emphasize the one-sidedness of the series: Demos and Ricciardi are essentially mouthpieces for Steven Avery.

It’s not that police do not lie, or plant evidence. They do it all the time. So it's certainly possible that police planted the victim's car key in Avery’s bedroom, as the Averys claim. But framing Avery would have required much more. Police would have had to know the location of Halbach's body in order to move it to Avery's burn pit. They would have had to plant Avery's sweat under the hood of Halbach's car, where his nephew's account predicted it would be. All told, this convoluted conspiracy theory stretches credulity.

Ironically, while the filmmakers castigate police for going after Avery’s nephew (instead, they cast unsupported aspersions on the victim's male friends and relatives), Avery and his defense team had no such compunctions. Their alternate suspect list included the boy, along with other male members of the Avery clan.

Some observers, such as journalist and private investigator Ann Brocklehurst, imply that business interests may have contributed to this over-solicitude toward the Averys:
“Ma and Pa Avery are portrayed lovingly as salt-of-the-earth types. They’re never asked how they managed to raise three sons with such a long and documented history of violence.... [I]f the filmmakers had decided one of the brothers, nephews or brother-in-law likely did it, Ma and Pa might have pulled right out of the multi-year film project and left the directors empty-handed. A Shakespearian or Faulkneresque tale of a dysfunctional and dangerous family is of no use to anyone if you don’t have the legal rights to tell it.”
Journalists’ code of ethics warns reporters not to distort either facts or context, and to take special care to avoid misrepresentation or oversimplification. Intentionally or not, Demos and Ricciardi clearly violated this standard.

4. “Innocence porn” exceptionalizes criminal justice problems.

The trope of the wrongfully convicted is a time-honored sub-genre of true crime. New Yorker writer Kathryn Shultz traces it back to the late 1880s, with a popular magazine column called “The Court of Last Resort” by criminal defense lawyer turned author Erle Stanley Gardner, better known for his Perry Mason detective series. As Shultz notes, recent films and TV series in this genre have been quite successful in getting criminal cases reopened and convictions overturned: 

“Although it subsequently faded from memory, 'The Court of Last Resort' stands as the progenitor of one of today’s most popular true-crime subgenres, in which reporters, dissatisfied with the outcome of a criminal case, conduct their own extrajudicial investigations. Until recently, the standout representatives of this form were 'The Thin Blue Line,' a 1988 Errol Morris documentary about Randall Dale Adams, who was sentenced to death for the 1976 murder of a police officer; 'Paradise Lost,' a series of documentaries by Joe Berlinger and Bruce Sinofsky about three teen-agers found guilty of murdering three second-grade boys in West Memphis in 1993; and 'The Staircase,' a television miniseries by Jean-Xavier de Lestrade about the novelist Michael Peterson, found guilty of murdering his wife in 2001. Peterson has been granted a new trial. Randall Dale Adams was exonerated a year after 'The Thin Blue Line' was released. Shortly before the final 'Paradise Lost' documentary was completed, in 2011, all three of its subjects were freed from prison on the basis of DNA evidence.”

Last year’s NPR  podcast series, Serial, probing the case of a young man named Adnan Syed who had been convicted of killing his former high school girlfriend, became an overnight sensation. (And, guess what: A judge has just granted a motion for a new post-conviction review of the evidence in that case.) What with the popular success of Making A Murderer, more such cultural events can be anticipated.

But while documentaries like Serial or Making A Murderer may seem progressive in shining a spotlight on the legal system and exposing flaws therein, they may actually further a narrative of exceptionalism. In other words, miscarriages of justice are rare events caused not by systemic problems, but by ___ (fill in the blank: corrupt police, shyster attorneys, bungled evidence handling or analysis, etc.).

And only the innocents -- the exceptions to the rule -- are worthy of attention. 

5. The nephew got second billing.

Instead of hanging their tale on the threadbare hook of Avery’s prior exoneration, the filmmakers could have delved more deeply into the routine misfiring of the legal system by centralizing Avery’s nephew and codefendant, 16-year-old Brendan Dassey.

Brendan Dassey, the 16-year-old nephew
Like his uncle, Dassey may very well be guilty. But in his case, neither innocence nor deliberate corruption is essential to the narrative. Guilty or innocent, framed or not, the manner of his prosecution was rotten to the core, illustrating more common and systemic flaws in the criminal justice system.

“Innocent people don’t confess,” prosecutor Ken Kratz told the jury.

That false gospel went unchallenged because – for reasons never explained in the series – the juvenile’s defense team chose not to call a confession expert, who could have dissected Massey’s statements and explained to the jury how the detectives’ skillful manipulations produced a potentially unreliable confession.

This was a boy with a low IQ and limited education, who was interviewed by detectives on multiple occasions, for hours and hours on end, without either his mother or his attorney present. He was easily confused and misled into believing that if he confessed, all would be forgiven and he would go home. His statements were contaminated when police fed him facts, which he then regurgitated. 

Private investigator Michael O'Kelly
Dassey also had the misfortune to be initially represented by an unethical attorney who decided early on that Dassey was guilty, ignoring the boy’s protestations to the contrary. The attorney, Len Kachinsky, in turn hired a private investigator with highly confused loyalties. Indeed, the PI wrote a eugenics-laced email to the defense attorney revealing his unabashed antipathy toward his client's family:

“This [family] is truly where the devil resides in comfort. I can find no good in any member. These people are pure evil.... We need to end the gene pool here.”

Together, the loyalty-challenged attorney and investigator brow-beat a detailed confession from their client, which they promptly turned over to police. Although both the attorney and his investigator were removed from the case before trial, neither suffered any official sanction for their betrayal of their duties, or the damage caused to Dassey's case.

6. The entertainment spectacle has produced a destructive backlash.

In perhaps the most poignant moment in the series, defense attorney Dean Strang -- the show’s moral compass -- critiques the “unwarranted certitude” rampant within the criminal justice system, with everyone from police and prosecutors to defense lawyers, judges and jurors far too convinced that they are privy to The Truth.

Across the board, he mourned, the system suffers from “a tragic lack of humility.”

Steven Avery with rape victim Penny Beerntsen
Unfortunately, the filmmakers fell into that very same trap. It was apparent to many that they had naively embarked on their 10-year project wearing blinders. Penny Beerntsen, the original rape victim (whose misidentification sent Avery to prison), was one such observer. A remarkable woman who is active in the innocence movement, Beerntsen told the New Yorker that the filmmakers’ certitude troubled her:

“It was very clear from the outset that they believed Steve was innocent,” she told me. “I didn’t feel they were journalists seeking the truth. I felt like they had a foregone conclusion and were looking for a forum in which to express it.”

It is no surprise that Avery and his family have staunchly denied his guilt: He was framed once, so why not twice? After all, they point out, the $36 million judgment he was seeking for his false imprisonment could have bankrupted Manitowoc County. But for the filmmakers to fall so under the Averys’ spell that they would radically distort the facts is disconcerting. Their bias was transparent, and the excluded evidence easily available. It seems arrogant to regard the public as too gullible to do any basic fact-checking.

Predictably, a furious backlash has ensued, with social media pundits and entertainment outlets competing to debunk the series. Rather than systemic flaws in the system, the discourse has devolved into a pointless, dichotomous debate over guilt or innocence.

Worst of all from the interests of the innocence movement, some are asking the question: If Steven Avery had never been exonerated, would Teresa Halbach be alive today?

The innocence movement can counter with the fact that Avery is an extreme outlier: Of all the many hundreds of people who have been exonerated and freed from prison, only a tiny handful have reoffended with a serious offense.

But Avery is an outlier for another reason as well: He may not have raped Penny Beerntsen, but he was far from innocent even back then. Police in his rural community already had him on their radar screen, as a dangerous young man, someone who thought nothing of assaulting a female relative with a gun or dousing a cat with oil and throwing it on a bonfire to watch it burn.

The filmmakers insist that it was never their intent to manipulate their audience, nor to propel such a mass rush to judgment – in either direction. In hindsight, however, perhaps the grisly murder of Teresa Halbach was not the best choice for a documentary about innocence?


On Aug. 12, 2016, U.S. District Court Judge William Duffin granted Brendan Dassey's petition for a writ of habeas corpus, based on the false promises that were made to him (in conjunction with other relevant factors, including his age, intellectual deficits, and the absence of a supportive adult), and ordered that he either be released or granted a new trial. The 91-page ruling is HERE

On June 22 2017, a three-judge panel of the 7th Circuit Court of Appeals upheld the District Court's decision. Its 128-page ruling is HERE. As of that date, Dassey remained in custody while prosecutors decided whether to appeal to the Supreme Court. New York Times reporting on that appellate ruling is HERE.

On Dec. 8, 2017, by a narrow vote of 4-3, the full 7th Circuit Court of Appeals reversed the decision of its three-judge panel. Citing the need for appellate courts to be deferential of trial courts, it held that the original trial court decision upholding Dassey's conviction was not patently erroneous or unreasonable. In a strongly worded dissent, Justice Ilana Rovner called the decision "a profound miscarriage of justice" that condoned the use of psychologically coercive techniques and condemned "an impaired teenager" to spend his life in prison. The majority decision and two dissenting opinions are HERE. They are highly recommended reading as they illuminate the current state of tension surrounding psychologically coerced confessions and especially the controversial Reid interrogation method.  

In June of 2018, the U.S. Supreme Court declined to hear Dassey's appeal, meaning Dassey will continue to serve his life sentence.

And in July of 2018, Dassey's ethically challenged attorney Len Kachinsky, who later became a judge, was charged with stalking his former court clerk. He has been suspended from practice, and faces up to five years in prison if convicted. The allegations against him are creepy enough that they might make for a good true-crime show in their own right.