New Yorker article about Making a Murderer below. Provides a balanced opinion of the documentary series.
Dead Certainty
How “Making a Murderer” goes wrong.
BY KATHRYN SCHULZ
First came “Serial,” co-created by Sarah Koenig and Julie Snyder, which revisited the case of Adnan Syed, convicted for the 1999 murder of his high-school classmate and former girlfriend, eighteen-year-old Hae Min Lee. That was followed by Andrew Jarecki’s “The Jinx,” a six-part HBO documentary that, uncharacteristically for the genre, sought to implicate rather than exonerate its subject, Robert Durst. A New York real-estate heir, Durst was acquitted in one murder case, is currently awaiting trial in another, and has long been suspected in the 1982 disappearance of his wife, Kathleen Durst.
The latest addition to this canon is Laura Ricciardi and Moira Demos’s “Making a Murderer,” a ten-episode Netflix documentary that examines the 2007 conviction of a Wisconsin man named Steven Avery. Like the prisoners featured in “The Court of Last Resort,” Avery is a poor man serving time for a violent crime that he insists he didn’t commit. The questions his story raises, however, are not just about his own guilt and innocence. Nearly seventy years have passed since Erle Stanley Gardner first tried a criminal case before the jury of the general public. Yet we still have not thought seriously about what it means when a private investigative project—bound by no rules of procedure, answerable to nothing but ratings, shaped only by the ethics and aptitude of its makers—comes to serve as our court of last resort.
If you know anything about “Making a Murderer,” you know that Steven Avery has a particularly troubling and convoluted relationship with the criminal-justice system. In July of 1985, Avery was picked up by the Manitowoc County Sheriff’s Department after a woman named Penny Beerntsen was brutally attacked while out for a run in a Wisconsin state park. Beerntsen, who had been conscious throughout most of the attack, deliberately sought to memorize her assailant’s features, and subsequently picked Avery out of both a photo array and a live lineup. At trial six months later, Avery was found guilty and sentenced to thirty-two years in prison. He served eighteen of those before being exonerated by DNA testing, a technology not available at the time of the trial. That DNA test also identified Beerntsen’s actual assailant: a man named Gregory Allen, who was, by then, imprisoned for another assault.
“Making a Murderer” raises serious and credible allegations of police and prosecutorial misconduct in the trials of Steven Avery and Brendan Dassey. It also implies that that misconduct was malicious. That could be true; vindictive prosecutions have happened in our justice system before and they will happen again. But the vast majority of misconduct by law enforcement is motivated not by spite but by the belief that the end justifies the means—that it is fine to play fast and loose with the facts if doing so will put a dangerous criminal behind bars.
That same reasoning, with the opposite aims, seems to govern “Making a Murderer.” But while people nearly always think that they are on the side of the angels, what finally matters is that they act that way. The point of being scrupulous about your means is to help insure accurate ends, whether you are trying to convict a man or exonerate him. Ricciardi and Demos instead stack the deck to support their case for Avery, and, as a result, wind up mirroring the entity that they are trying to discredit.
Partway through “Making a Murderer,” we hear a “Dateline NBC” producer discuss the death of Teresa Halbach in disturbingly chipper tones. “This is the perfect ‘Dateline’ story,” she says. “It’s a story with a twist, it grabs people’s attention. . . . Right now murder is hot, that’s what everyone wants, that’s what the competition wants, and we’re trying to beat out the other networks to get that perfect murder story.”
Like the Lee family, the Halbachs and Penny Beerntsen declined to participate in a journalistic investigation into their personal tragedies. But no one in such a situation has any real way to opt out. “Making a Murderer” takes Halbach’s death as its subject (her life is represented by a few photos and video clips, which do not rise above the standard mise en scène of murder shows), and footage of her family appears in almost every episode. Beerntsen, for her part, was dismayed to discover that the filmmakers had obtained a photograph of her battered face from the 1985 attack and used it without her knowledge. “I don’t mind looking at it, but my children should not have to relive that,” she said. “And everything we’re dealing with, the Halbachs are dealing with a thousandfold.”
This is not to suggest that reporting on violence is always morally abhorrent. Crimes themselves vary widely, as does crime coverage, and it is reasonable to hold that at some point the demands of private grief are outweighed by the public good. But neither “Serial” (which is otherwise notable for its thoroughness) nor “Making a Murderer” ever addresses the question of what rights and considerations should be extended to victims of violent crime, and under what circumstances those might justifiably be suspended. Instead, both creators and viewers tacitly dismiss the pain caused by such shows as collateral damage, unfortunate but unavoidable. Here, too, the end is taken to justify the means; someone else’s anguish comes to seem like a trifling price to pay for the greater cause a documentary claims to serve.
But what, exactly, is that cause in “Making a Murderer”? As of January 12th, more than four hundred thousand people had signed a petition to President Obama demanding that “Steven Avery should be exonerated at once by pardon.” That outrage could scarcely have been more misdirected. For one thing, it was addressed to the wrong person: Avery was convicted of state crimes, not federal ones, and the President does not have the power to pardon him. For another, it was the wrong demand. “Making a Murderer” may have presented a compelling case that Avery (and, more convincingly, Dassey) deserved a new trial, but it did not get anywhere close to establishing that either one should be exonerated.
The petition points to another weakness of “Making a Murderer”: it is far more concerned with vindicating wronged individuals than with fixing the system that wronged them. The series presents Avery’s case as a one-off—a preposterous crusade by a grudge-bearing county sheriff’s department to discredit and imprison a nemesis. (Hence the ad-hominem attacks the show has inspired.) But you don’t need to have filed a thirty-six-million-dollar suit against law enforcement to be detained, denied basic rights, and have evidence planted on your person or property. Among other things, simply being black can suffice. While Avery’s story is dramatic, every component of it is sadly common. Seventy-two per cent of wrongful convictions involve a mistaken eyewitness. Twenty-seven per cent involve false confessions. Nearly half involve scientific fraud or junk science. More than a third involve suppression of evidence by police.
That does not automatically compromise independent investigations into crime; some remarkable and important work has been done in the tradition of the court of last resort. But it does enable individual journalists to proceed as they choose, and the choices made by Ricciardi and Demos fundamentally undermine “Making a Murderer.” Defense attorneys routinely mount biased arguments on behalf of their clients; indeed, it is their job to make the strongest one-sided case they can. But that mandate is predicated on the existence of a prosecution. We make moral allowances for the behavior of lawyers based on the knowledge that the jury will also hear a strong contrary position. No such structural protection exists in our extrajudicial courts of last resort, and Ricciardi and Demos chose not to impose their own.
Toward the end of the series, Dean Strang, Steven Avery’s defense lawyer, notes that most of the problems in the criminal-justice system stem from “unwarranted certitude”—what he calls “a tragic lack of humility of everyone who participates.” Ultimately, “Making a Murderer” shares that flaw; it does not challenge our yearning for certainty or do the difficult work of helping to foster humility. Instead, it swaps one absolute for another—and, in doing so, comes to resemble the system it seeks to correct. It is easy to express outrage, comforting to have closure, and satisfying to know all the answers. But, as defense lawyers remind people every day, it is reasonable to doubt. ♦