During December 2015, millions of viewers tuned in to watch a modern day version of To Kill A Mockingbird: Netflix’s Making a Murderer, a riveting 10-episode documentary by Moira Demos and Laura Ricciardi focusing on Steven Avery’s experience with a seemingly corrupt law enforcement and justice system in Manitowoc County, Wisconsin. In 1985, Avery was convicted of a crime he didn’t commit: the attack and rape of Penny Beerntsen near her home. Eventually, the Wisconsin Innocence Project introduced DNA evidence that exonerated Avery. He was released in September 2003 — after serving 18 years in prison. Subsequently, Avery sued Manitowoc County for $36 million. On October 31, 2005 a Teresa Halbach, a photographer for Auto Trader, went missing. On November 11, Avery was charged with the murder of Halbach. (Ironically, on the day that Teresa was reported missing, Wisconsin state legislators passed the Avery Bill to prevent wrongful convictions.) Avery was tried and found guilty of murdering Halbach in March 2007; he was sentenced to life in prison without the possibility of parole in June 2007.
Viewers have turned to social media to express their strong feelings and opinions about the Avery case. As of January 8, more than 120,000 people signed a “We the People” (WhiteHouse.gov) petition stating: “Based on the evidence in the Netflix documentary series Making a Murderer, the justice system embarrassingly failed both men, completely ruining their entire lives. There is clear evidence that the Manitowoc County sheriff’s department used improper methods to convict both Steven Avery and Brendan Dassey.” A similar petition on Change.org addressed to Wisconsin Governor Scott Walker gathered 6,500 supporters. Each day there are dozens of new articles, presenting new facts and perspectives. All of this intense media coverage begs the question: why are people so fascinated by Making a Murderer? Unfortunately, it is not a simple answer. Bookshelf explores the many facets of the public’s fascination with the Avery case.
DISTRUST OF POLICE OFFICERS
There was a time in America’s history when the public trusted police officers. But stories that reveal abuse of power (like the Rodney King beating in Los Angeles in 1991, or the shooting of Michael Brown in Ferguson, Missouri in 2014) have dominated the news in recent years, tarnishing the reputation and eroding the trust of police officers. In Time’s cover story (August 2015), Karl Vick indicates that the public’s confidence in the police has reached an all-time low: 52% from 1993 to 2015. In the article “The Lessons of Ferguson,” the editors of The Economist note the high rate of killing by U.S. police: “First, as Barack Obama noted on August 18 , ‘there is a big difference between our military and our local law enforcement and we don’t want those lines blurred.’ In fact, those lines have already been blurred, as the armored cars on the streets of Ferguson attest. In 2012, according to the FBI, American police officers shot and killed 409 people. Their British counterparts shot and killed no one. The German police, who unlike the Brits are routinely armed, shot and killed eight people; the Japanese have killed one in the past six years.” Writing about Making a Murderer, Alex Abad-Santos and German Lopez conclude: “Instead of framing Making a Murderer as a show about Avery’s innocence, it might be better to look at it as a spotlight on the mistakes and inconsistencies in this man’s two separate experiences with the criminal justice system — and, possibly, the flaws in that system on a national scale.” The documentary is compelling because viewers watch law enforcement officers engage in unethical and illegal behavior — and get away with it — eliciting outrage and frustration.
DISTRUST OF JUDGES
The public has always distrusted lawyers, but now judges’ integrity has been tarnished as well. One of the most notable recent cases is the well-known “kids for cash” scandal that occurred in Wilkes-Barre, Pennsylvania chronicled in two documentaries: Capitalism: A Love Story (2009) and Kids for Cash (2014). In 2011, two judges were found guilty of sentencing children to a private, for-profit detention center in order to enrich themselves. In the process, they violated the constitutional rights of thousands of children who served long sentences for minor infractions, ruining many lives and families. Making a Murderer is fascinating, therefore, because viewers witness a judge who makes questionable decisions, reveals a strong bias against the defendant, and condones the misconduct of the police, prosecutors, and jury members. Despite compelling evidence that Avery and Dassey did not receive a fair trial, for reasons that are not entirely clear, higher courts refuse to grant the defendants new trials. Are those judges trying to avoid another multimillion lawsuit that would expose widespread corruption? David Schmid, an associate professor of English (University of Buffalo) who teaches true crime novels, observes, “[The] American judicial system has serious problems. These shows give [Americans] a way to work through their feelings about that.” Precisely — and those feelings are one of shock, outrage, and disbelief — how can this happen in America today — especially under the scrutiny of the press?
THE SEARCH FOR JUSTICE AND SEARCH FOR TRUTH ARE NOT THE SAME THING
Thanks to televised high-profile trials like the William Kennedy Smith (1991), Rodney King officers trial (1992), O.J. trial (1995), and the Steven Avery Trial (2015), one eventually concludes that the search for justice and the search for truth are not the same thing. More often than not, truth is a slippery thing — almost impossible to grasp. In his paper, “The Adversarial System and the Search for Truth,” Australian lawyer and judge Ray Finkelstein notes: “In practice, it is commonly accepted by lawyers that the adversarial model is primarily designed to resolve disputes, rather than discover truth. Lawyers recognize this and adjust their behaviour accordingly. A client might approach a lawyer with his or her version of events. The lawyer’s job is to mold this raw version of events into a narrative which is most credible and capable of withstanding the exigencies of legal process. The opposing lawyer will engage in exactly the same process. The purpose of shaping and refining these narratives is to win the case for the client, not to find the truth.” By watching the documentary, the viewer has the opportunity to vicariously step into the courtroom and play a juror, reviewing all the evidence and arguments to come to his or her own conclusion. In this particular case, many viewers conclude that a great injustice has been done.
JUSTICE IS NOT BLIND: IMBALANCE BETWEEN RICH AND POOR
One immediate takeaway from the Avery trial — and just about every high profile trial — is that in the words of Stephen Avery: “Poor people lose.” As the Simpson trial proved, hiring a legal “dream team” definitely tips the scales of justice. Or consider the case of Ethan Couch, a teenager who was driving drunk and plowed into a group of people, injuring nine and killing four individuals. Nevertheless, Couch’s attorneys, using the “affluenza” defense, persuaded a judge to sentence Couch to ten years probation! If Couch suffers from “affluenza” then Avery and Dassey suffer from “impoverishenza.” Viewers are shocked to see how the law enforcement officers and prosecutors take advantage of Dassey’s poverty, lack of education, and intellectual disability (he has an IQ of 69-73) during interrogations and the trial. Lacking financial resources, Dassey could not hire experts to discount coerced confessions. Thus, the documentary strongly suggests that Dassey’s first court-appointed attorney actually colluded with the prosecutors to convict Dassey. Dean Strang, Avery’s attorney concludes: “Steven’s case, almost any case, reveals some systemic weaknesses or things we should try to improve, not just in one case but across the workings of the justice system. For me at least, those flaws were revealed in sharper relief and more vividly in Brendan’s case.”
THE PRESUMPTION OF INNOCENCE IS NOT SACRED
Every American is familiar some variation of Blackstone’s formulation: “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.” (From William Blackstone’s Commentaries on the Laws of England, published in 1760s). From an early age, we are taught that the presumption of innocence is sacred and thanks to Blackstone we can assign a price to it (ten people). The Avery case shatters that concept — particularly when the documentary reveals that the Manitowoc County Sheriff’s Office learned that they had an innocent man in prison for a rape case early on and they kept him in prison for another ten years. Abad-Santos and Lopez make this chilling conclusion: “Making a Murderer shows the public just how easy it is to convict people of crimes they didn’t commit.” After watching the documentary, one thinks: “If this happened to Avery, this could happen to anyone; it could happen to me.”
JURIES ARE BIASED AND STUPID
Two jokes come to mind about jury trials: “When you go into court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty” (Norm Cosby). “There is no such thing as an impartial jury because there are no impartial people. There are people that argue on the web for hours about who their favorite character on Friends is” (Jon Stewart). If you watch enough trials you realize that juries are microcosms of society. Impartiality and neutrality are not in the human DNA — we cannot help but view reality through the lens of our unique life experience; everyone has some bias. Every individual also has a different level of intelligence and education which impacts the ability to review and distill information and make reasonable, logical conclusions. Combine bias, levels of intelligence and education, and group (or mob) dynamics and you have the perfect recipe for stupidity and flawed decision-making. Anyone who has watched the film 12 Angry Men (1957, 1997) or spent enough time in committees can relate (recall Sir Alec Issigonis’ famous remark: a camel is a horse designed by committee). In a recent interview, juror Richard Mahler explains that one juror was the father of a county sheriff and another had a wife that worked for the county clerk’s office — a real conflict of interest. Mahler also reveals that an early vote indicated that 7 jurors believed Avery was not guilty, 5 believed he was guilty, and 2 were undecided. Another juror member defied the judge’s order and watched the coerced Dassey confession. An unnamed jury member approached the documentary makers and said that they believed that law enforcement tried to frame Avery because of the lawsuit; they believed that Avery was innocent but voted guilty out of fear for their safety — “If they could frame Steven Avery, they could do it to me.” The public feels a certain sense of incredulity. How could the jury not find reasonable doubt? How does a radically split vote go from 7/5/2 to a unanimous vote? Why did the jury make a pact not to reveal anything about the deliberations? Did the jury focus on Avery’s past actions and character rather than just the evidence presented in the case? Given the unsettling admissions by jury members revealing serious problems (i.e., Avery did not receive a fair trial), why do judges refuse to grant Avery a new trial?
Schadenfreude is German for “harm-joy”; it is the pleasure derived from witnessing the misfortune of others. Schadenfreude is the engine of tabloids and websites that hype celebrities’ problems. Numerous studies confirm that this feeling is almost hard-wired in our brains — perhaps a manifestation of the “survival of the fittest” principle. The other view, based on social comparison theory, is that individuals feel better about themselves when they learn about the misfortune’s of other. The actions, attire, and conversations of the Avery clan (straight out of a Coen Brothers film) is perfect fodder for Schadenfreude.
THE END JUSTIFIES THE MEANS
Although the Making a Murderer implies that the police and prosecutors framed Avery out of spite (because he sued them for $36 million), the problem is much more pervasive. As Kathryn Shulz, a writer for The New Yorker, points out: “[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.” And in many cases, the public buys into that — it’s OK to bend the truth a little if it leads to a “justified” incarceration. Everything changes, of course, when it happens to you.
FASCINATION WITH MURDER
As popular novels (eg, In Cold Blood, To Kill a Mockingbird) and films (eg, Psycho, Seven) attest, people are fascinated by murder. In his essay, “Why Are We So Fascinated with Murder?” psychologist Paul Mattiuzzi explains that a murder is a tantalizing puzzle among other things: “I think the fascination with murder is natural because there are so many different ways to judge each crime. We wonder about the victim, about the perpetrator, and about the circumstances. We are intrigued by the motive and the method and how they got away or how they got caught. We wonder who would be capable of the crime and whether they are “normal” like us… [We] are fascinated because of the powerful emotions aroused when we consider the fate and fortune of the victim and the pain that remains for their survivors… [It] is the cold realities that draw and demand our attention. We actively seek the clues that tell us that we are safe, that it couldn’t happen to us.” American crime novelist, Karin Slaughter, suggests that people are obsessed with unsolved murder crimes. “People don’t just love mysteries,” she writes, “they are obsessed with them — especially the kind that are never definitively solved [eg, Jack the Ripper]. Crafting a piece of gripping, narrative true crime that engages the world is not that different from crafting a piece of crime fiction. Here is the basic formula: An attractive young victim. A sexual component. Some form of social deviance. A zealous cop and/or prosecutor. A false confession. An alternative suspect. An injustice. A good guy. A bad guy. A name that instantly identifies the crime and the mystery. Lizzie Borden. Casey Anthony. O.J. Simpson. Amanda Knox. The West Memphis Three. Adnan Syed. Steven Avery.”
Despite people’s fascination with Netflix’s Making a Murderer, the real value of the documentary is not whether Avery is guilty or not guilty, but whether the criminal justice system is truly broken or easily corrupted. The key question is: did Avery and Dassey receive fair trials? In an interview, Demos explained “We weren’t there to solve the crime. We were there to document the experience of being accused in this country. We’d always hoped the series would promote a dialogue.” Indeed, the documentary has provoked important discussions about ideals, rights, organizations, and institutions that are supposed to be sacred in America. Slaughter adds this perspective: “In a democracy, that’s the puzzle we should be obsessed with solving: how do we make the system work for everybody instead of focusing such a massive amount of energy trying to make it work for just these two people? Don’t get me wrong. New trials for Avery and Dassey would be a tremendous accomplishment, but properly funding all sides of our criminal justice system could go a long way toward preventing future wrongful convictions.” And if the law enforcement and judicial systems are broken, Americans need to immediately address how to fix them before more innocent citizens are imprisoned. Otherwise the incarceration of innocent citizens is worth absolutely nothing — something that Blackstone or Atticus Finch would never tolerate.
For further reading: To Kill A Mockingbird by Harper Lee (1960)
Commentaries on the Laws of England by William Blackstone (2013)
“What It’s Like to Be a Cop in America” by Karl Vick, Time Magazine, August 14, 2015
<i>Making a Murderer</i> Creators: Juror Feared Being Framed by Police
“The Hidden Danger of TV’s True-Crime Obsession” by Daniel D’Addario, Newsweek magazine, January 18, 2016.
Karin Slaughter: The Real Mystery at the Heart of <i>Making a Murderer</i>