Tuesday, February 2, 2016

Some thoughts on Making a Murderer and its critics

Recently I watched the viral Netflix documentary “Making a Murderer.” I loved it. You should watch it if you have not done so already. This post contains spoilers, so don’t read on if you haven’t watched it yet. The post also will not bother to summarize the events of the show, so even if you lack the faintest inclination to one day watch the show, go away: what follows won’t make much sense to you. I’m presuming anyone who’s still reading has seen the show.

Regardless of your thoughts on its content, the series was a tremendous piece of film-making. I especially loved how, despite being a documentary, the show does not have a narrator. I always felt the narrator was redundant in most made-for-TV documentaries, and sometimes insulted my intelligence. The show seems much more intellectually serious by allowing the viewers to piece things together themselves.

With that said, it has received a lot of criticism since its release. Factually, it leaves out a lot. Prosecutor Ken Kratz spoke to the media about many pieces of incriminating evidence which were left out of the documentary, including some non-blood DNA from Avery (possibly sweat or skin cells) found on the latch of the RAV-4 hood, and the fact that he bought shackles and handcuffs just three weeks before the murder (Avery claims he used these as sex toys with his ex-fiance, Jodi Stachowski). Jodi, for her part, has changed her tune since the documentary was filmed, telling Nancy Grace she now believes Avery is guilty, and revealing that he often beat her and threatened to kill her. Penny Beernstem, the original rape victim who misidentified Avery, reveals that shortly after his release he called her and asked her to buy him a house as recompense – while not relevant to his murder charges, it doesn’t paint as flattering a picture of the man as the filmmakers let on. They also omit that he was facing entirely separate sexual assault charges in 2004, and that while he was imprisoned, he had made statements to other inmates regarding his plans to build a “torture chamber” upon his release. The New York Times added some additional information.

My thoughts on all this...I was never certain Steven Avery was innocent, and I can be even less so now that I have read this new information. Personally, I am much more convinced of Brendan Dassey’s innocence (and more outraged by his treatment at the hands of prosecutors) than I am of Avery’s, but even that I cannot be sure of. All I know is that I have enough doubt about the guilt of Avery to believe he deserves a new trial, with jurors who were not prejudiced by the media fanfare surrounding his case. And I have enough doubt about Dassey’s confession(s) to believe that he should be exonerated outright, and allowed to go home.

As always, the internet has provided some interesting analysis. Reddit found perhaps the most plausible theory I have seen yet of Avery’s innocence, implicating Scott Tadych and Bobby Dassey, and claiming that Avery was actually framed by two people at the same time: the killer(s), and the police. One author on Slate felt the show was emotionally manipulative for only showing a one-sided story biased towards Avery’s innocence. The most interesting of all came from the New Yorker, which compared the unregulated bias of the vigilante justice genre in film and writing to the same certainty of truth which could have plausibly led the Manitowoc County prosecutors to frame Avery in the first place.

My thoughts?

Obviously, I agree it was one-sided. Duh. They weren’t doing close-ups of the Halback family at their dinner table, or extensive interviews with Ken Kratz as he drove his car and ruminated on the state of the criminal justice system. From the makers’ perspective, 10 years seems like a long time to invest into a documentary if you aren’t driven by a passionate opinion as to the justice behind your cause. When Penny Beernsten says she declined to participate because she was convinced the filmmakers were already convinced of his innocence, I believe her.

And, yes, of course they omitted evidence. But, I don’t think which evidence they omitted was necessarily related to the fact that it was biased. As Avery’s old lawyer Dean Strang pointed out afterwards, it would have been impossible not to omit some of it. You can quibble about which evidence was important enough to make the cut in a 10-hour piece, but when they had 240 hours of courtroom footage alone, you can’t expect them to include it all. It’s important to note, also, that what was left out was not solely arguments supporting the prosecution. The media is asking Kratz what he thinks of the evidence that was not included, but surely Dean and Jerry also had rebuttals to those theories which also were not mentioned in the documentary.

Ultimately, I think those criticizing the producers for unwarranted certitude and emotional manipulation may underestimate the shows audience. It’s not every sort of person who devotes over ten hours of their life to watching a documentary about courtroom proceedings. Making a Murderer does not have the incessant sex and violence of Game of Thrones, Breaking Bad, Narcos, or other viral dramas. Those shows are all excellent and captivating, but their appeal is somewhat lower brow – certainly more accessible to those viewers who are, shall we say, as impressionable as Brendan Dassey. Restrained by the boundaries of chronological nonfiction, there are times when Making a Murderer becomes downright dry by comparison. Those most likely to be transfixed by the show, and most outraged by its alleged scandal, are likely those thoughtful enough to ruminate on the criminal justice system at large. People like you, me, and the authors of think pieces in The New Yorker will not be satisfied taking the documentary’s claims at face value – like any good lawyer, we dig deeper. To me, it seems like the indignation the show engenders is not designed to end the public debate once and for all, but only prod formerly indifferent viewers into additional research and activism on a cold case.


If the documentary is slanted, it is only to counterbalance the impossibly steep uphill slope of Mr. Avery’s remaining legal battle. This is a man who has exhausted all of his appeals, for the second time. He has no remaining right to appointed representation. The legal question is settled. In the authoritative eyes of the law, there is only one story, and that is the story of the prosecution. Making a Murderer presents a one-sided rendition of events because the other side has already won. It invites the viewer to challenge the prevailing narrative, and reopen questions formerly closed. Mr. Avery and Mr. Dassey were convicted in a climate of horrified public outrage; by creating countervailing outcry in the opposite direction, Making a Murderer merely evens the scales of mob justice. Immediate exoneration of the accused and vilification of the prosecutors is not something the documentary could possibly hope to achieve. To its makers, success looks like a new trial, a decade detached from the passions of the first, combined with renewed public skepticism of the authorities in general. I would welcome both of those things.

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