So you’ve probably heard something about Netflix’s documentary series Making a Murderer. The series centers around Steven Avery, a Wisconsin man with a long criminal history who was convicted of a sexual assault he did not commit in 1985. After his exoneration, he sued Manitowoc County and the sheriff, alleging misconduct in the initial investigation and prosecution.
In the middle of this, a young photographer, Teresa Halbech, went missing. Avery was the last person she supposedly saw and police found her car and burned bone fragments on his property. He and his nephew were convicted of murdering her.
Avery insists on his innocence and claims he was railroaded again because of the lawsuit. The documentary goes through his case, from the previous charge, to the investigation, through the trial and the first round of appeals. It has caused an online sensation, with numerous blogs discussing the case and a White House petition for Avery and his nephew to be pardoned.
This review is going to be very spoilery. I’m going to discuss the case as if you’ve watched the documentary or read some of the coverage. So if you haven’t and plan to, you might want to bookmark this and come back in ten hours.
The documentary illustrates many of the problems in our criminal justice system that writers like Radley Balko have been highlighting for years. Specifically:
- A huge part of the initial case against Avery — and a massive amount of the media coverage — centered on his nephew Brendan Dassey’s confession, which included horrific details of raping Halbach and cutting her throat. This turned out to be largely garbage. Had she been murdered in such a way, there would have been forensic evidence everywhere. And Dassey’s videotaped confession shows him being interrogated without a lawyer or his parents, being pressured by police and fed critical details that “only the murderer would know”. As far as I can tell, none of the critical details of his confession were introduced by him, only by the cops. Later, his public defender had him talk to an investigator … one who was working to build the prosecution’s case. Dassey tried to withdraw his story but the investigator pressured him to repeat it, enhance it, create drawings and make a phone call that were used by the prosecution in the trial. According to the Innocence Project, at least a quarter of people exonerated by DNA evidence initially and falsely confessed to the crime, almost always after intense long interrogations from police. Amanda Knox, the Central Park Five, the West Memphis Three — all involved false confessions after intense interrogation. This confession was not used in Avery’s trial because it was so suspect. Dassey was later convicted almost entirely on the basis of his earlier confession, using a very different theory of the crime than was used to convict Avery and one not supported by any forensic evidence.
- The initial 1985 rape conviction happened because the police decided on their suspect early on and saw all the evidence and even canted the evidence in favor of their foregone conclusion. The witness identification, for example, involved a composite sketch that looked suspiciously like Avery’s mugshot and not what he actually looked like at the time of the alleged rape. This problem reared its head a second time in the murder investigation. The police focused their attention almost exclusively on Avery. There’s a very revealing moment early on where some of the police doubt that Avery was innocent of the earlier rape, trusting their gut feelings more than the DNA evidence. This has happened repeatedly in exonerations, where prosecutors and police will continue to insist that they were right all along even as the evidence piles up against them — even, occasionally, to the point of suppressing exculpatory evidence because they think all it will do is free a guilty man. I think the local police still think Avery committed the 1985 rape and “got away” with it (after, um, 18 years in prison). So when they thought he’d murdered someone, that created a tunnel vision; a tunnel vision Avery’s lawyers believe resulted in planting evidence to make sure that he didn’t get away with it this time.
- Because of the tunnel vision of the investigators, Avery’s defense was hamstrung by being unable to point to another suspect who might have murdered Halbach on Avery’s property and then watched as the police railroaded their man. This allowed the prosecutor to say that the only way the jury could acquit Avery was if they believed the police had murdered Halbach, which no jury would ever believe (or should, absent any evidence).
- The defense strategy hinged around suggesting that one of the police officers planted three critical pieces of evidence, two of which were found months after the initial investigation. There is a very dramatic moment that reveals that Avery’s blood sample from the 1985 rape investigation had been tampered with. However, juries are extremely loath to believe bad things about cops. This is especially true when you have a prosecutor making “HOW DARE YOU!” statements in court and to the press. You really need some positive evidence to get an acquittal on that basis. The Avery case hinged on whether you believe the cop planted the evidence. If you didn’t believe it, his guilt was not really in question.
- A critical piece of evidence was a bullet from Steven Avery’s gun with Halbach’s DNA on it. However, the lab tech admitted that her control sample wound up contaminated. But she used the result anyway because the police were pressuring her to put Halbach in Avery’s garage. My wife, a biochemist and DNA researcher, was appalled hearing this part of the testimony. According to her, the forensic investigator wasn’t using the kind of basic protocols that are standard for genetic research and she wouldn’t trust any result coming out of that lab.
- The defense alleged that a cop planted Steven Avery’s blood in Halbach’s SUV, based largely on finding Avery’s earlier blood sample had been opened and blood withdrawn. The FBI, at the last minute, presented a test they claimed proved the blood was not from the vial. However, this test was new and proved to be almost useless for a negative result.
- The media sensationalized the case, gleefully repeating every sordid detail of Brendan Dassey’s confession. This clearly contaminated the jury pool, some of whom were adamant in deliberation that Avery was guilty.
So, do I think Steven Avery is innocent and that we should all run out and sign the petition to have him pardoned?
First of all, the petition is idiotic. It’s a White House petition. But Avery was convicted of state crimes, for which Obama can not pardon him. Scott Walker has already said he has no intention of pardoning Avery or Dassey.
Second, and more importantly, I’m not convinced that Steven Avery is innocent. While I think there were a lot of problems with the investigation, the jury heard most of the same evidence we see in the documentary (as well as some stuff that was not shown in the documentary) and they decided he was guilty. I am unwilling to overturn that verdict based on a documentary that clearly has a very specific point of view. I don’t think it would be unreasonable to ask for the investigation to be reopened by an independent unit. I think it is absolutely reasonable to propose reforms to policing and crime investigation based on what is in the documentary (which I’ll detail below). But setting a convicted murderer loose based on ten episodes of a Netflix documentary would be absurd.
Much of the defense hinges around “why would Avery do this? Why would he do that?” But that’s not really a defense. Criminals, generally speaking, are not very bright. Avery, specifically, has a low IQ. A friend of mine who is a defense lawyer notes that almost all of his cases end in guilty pleas or plea bargains. The reason is that most criminals commit crimes impulsively and with very little planning. If they try to cover it up at all, they do so with the skill and genius of a dog trying to pretend he didn’t poop in the house. So they rob a liquor store in full view of a camera. They murder someone for whom they would be the primary suspect, hide the gun in a sock drawer and then text their girlfriend about it. They admit everything to the cops the second they are arrested. Cases with ambiguity, like Avery’s, are unusual. And cases involving a master criminal are very rare.
This hurts the case for Avery’s innocence in two ways: 1) it means that the dumb stuff the prosecution alleged he did (e.g, burning the body next to his house, hiding the SUV poorly instead of destroying it) is not that hard to believe; and 2) it makes it much harder to believe that some genius criminal murdered Halbach and then set Avery up so perfectly to be the fall guy. Of course, it also makes it hard to believe that Avery cleaned up a supposedly gruesome crime scene so effectively that it took four months for the police to find any real evidence.
A good contrast against “Making a Murderer” is “The Thin Blue Line” which contributed to convicted cop killer Randall Dale Adams being freed. “The Thin Blue Line” fingers a very specific suspect. It relentlessly documents how the theory of the crime changed as each witness came forward. It demonstrates numerous problems with the case. It highlights the role of James Grigson, aka “Doctor Death”, who would go into Texas courts and testify that accused murderers were remorseless killing machines based on short interviews. It’s very hard to watch it and not conclude that Adams was railroaded. “Making a Murderer” does not give me that sense. It raises doubts and questions. But it doesn’t quite rise to that level.
(A lot of online ire has focused on Ken Kratz, the prosecutor in the Halbach case. And the documentary includes allegations of sexual harassment against him. While Kratz bothered me with some of his arguments, I didn’t see any actual misconduct (note: I am not a lawyer). And the sexual harassment allegations, while serious, are irrelevant to the Avery case. As far as I can tell, Kratz was doing his job. That ire would be much better directed against Brendan Dassey’s initial defense attorney, Len Kachinsky, who basically gave the prosecution everything they could ever have asked for short of a guilty plea. Dassey’s subsequent lawyers appealed based on his incompetence, but that appeal was denied.)
In the end, I think Avery’s guilty is kind of beside the point. The documentary is important not necessarily because it proves Avery’s innocence but because it gives an inside look into how our legal system works and highlights many of the problems with our criminal justice system, problems that need to be addressed. As Kathryn Schulz noted in a more critical review, you don’t need a vindictive police department to go down the same road that Avery and Dassey did. It happens more often than we’re comfortable admitting. Last year, conservative federal judge Alex Kozinski wrote a blistering article detailing the problems with our criminal justice system and some of the solutions to them. I highly recommend both reading it and implementing his suggestions, which include videotaping all confessions, establishing independent conviction integrity units and adopting rigorous scientific standards for forensic evidence.
A few more things I might suggest:
- Forensic labs need to be independent and stick to very strict protocols. Most labs work for the state and are eager to please prosecutors and police.
- Confessions that are extracted under duress from young or mentally challenged people (and Dassey was both) need to be viewed with suspicion.
- To avoid tunnel vision, long complicated investigations should designate at least one person to investigate alternative theories, to be a devil’s advocate against the consensus.
- Any police force involved in a false conviction should be strictly prohibited from investigating the same suspect again. This was tried in the Avery case but the supposed firewall broke down numerous times. We should consider excluding any evidence uncovered by investigators involved in a previous false accusation or conviction.
- Public defender offices need to be properly funded so that accused criminals get a proper defense.
- Allegations of police misconduct should be investigated by independent prosecutors, not local prosecutors who need the cops for their cases.
- Above all, we need more people who are skeptics. To those of us who are familiar with these issues, Dassey’s confession has red flags all over it. To a typical jury, it doesn’t. In that sense, Making a Murderer could have done some good on highlighting the problem of false confessions. But I don’t think they spend enough time on this. They could have cited dozens of specific cases where people have falsely confessed to horrific crimes.
The problems in our criminal justice system are not easy to fix. But we can at least take some steps in that direction.