As cultural events go, the O.J. Simpson case is usually remembered as a time in American history when the public indulged in a media circus and turned the events surrounding a double homicide into daily entertainment. And while there were definitely important aspects to consider — the treatment of domestic violence by society, wildly different perspectives of the case based on racial background, wealth and its effect on justice, etc. — probably one of the most significant legacies of the Simpson trial is the media embracing tabloid coverage as a legitimate function of news. Events become a reality TV show or a non-fiction soap opera that’s soaked for drama through so-called journalists’ rank speculation and use of weasel words to imagine possible better stories when reality won’t comply. Because if the National Enquirer can speculate about Kim Kardashian’s personal life with little or no evidence to back it up, why can’t The New York Times do the same thing with its coverage of terrorist incidents and politics? What’s the difference? And this is also why the news seems to be in a constant search for more missing/dead, blonde white women to score ratings.
Over the past few years, the true crime genre has become popular and captured the public’s imagination through the same idea of real-life as living drama, but moves beyond the tabloid with cases which speak to either real or possible injustice. The murder of Hae Min Lee and the conviction of her former boyfriend, Adnan Syed, was the basis for the popularity of the Serial podcast’s first season. The hows and whys of Robert Durst’s ability to evade a jail cell, and the search for evidence of his guilt made HBO’s The Jinx a hit.
Netflix’s Making a Murderer has become one of the most talked about TV series in recent memory and become a phenomenon on social media in the past month, based on the very chilling notion it presents. Steven Avery was convicted of rape in 1985 at the age of 22. He spent the next 18 years in jail before being exonerated by DNA evidence. It then came to light the Manitowoc County, Wisconsin authorities had been told there was evidence against another suspect, Gregory Allen, and police had overlooked him and not pursued Allen until the day after Avery was released from prison. Some years after his release, Avery had brought a $36 million wrongful imprisonment lawsuit against Manitowoc County, and mere days before the case goes to trial he’s arrested for the murder of a photographer and business acquaintance, Teresa Halbach. While Making a Murderer casts a good bit of doubt on whether or not Avery actually committed the murder, the larger point the series makes is a clear and convincing case the officials in Wisconsin did everything in their power to frame Avery for the crime. And even though prosecutors have complained the documentary is biased, the audience watches some of these same government officials coerce a confession out of an intellectually disabled child in pursuit of the antithesis of justice.
Produced and directed by Laura Ricciardi and Moira Demos, who spent over 10 years crafting the documentary and finding it a home, at first presents a tragic situation that seems open and shut on the surface. Avery, who was a victim of government malfeasance, is seemingly revealed to be a monster. The prosecution, led by Calumet County, Wisconsin District Attorney Ken Kratz, lays out a case which includes Halbach last being seen with Avery, Halbach’s burned body found on his property, Halbach’s SUV hidden on the Avery family's property, Avery’s blood being found inside the SUV, a bullet with Halbach's DNA being found in Avery's garage, and Halbach's keys being found in Avery's trailer, and a confession by Avery’s 16-year-old nephew, Brendan Dassey, admitting to taking part in the crime. The prosecution’s theory has Avery raping Halbach and stabbing her inside of Avery’s trailer. She is then taken out to Avery’s garage to be shot, with her body mutilated and buried in this version of events.
But the 10 episodes of Making a Murderer then proceeds to cast suspicion on each piece of the prosecution’s evidence and makes a damning case of its own. The blood evidence seems to come from a compromised source, the memories and actions of certain officials don’t match the record and come with a clear conflict of interest, the seeming lack of evidence where there should be some (e.g., If Avery stabbed and raped Halbach inside his trailer, why is there no blood inside the home? If Avery shot her in his garage, why was there no blood splatter in the garage?), and the seeming presence of evidence where there should be none (i.e., if Avery was able to clean up a crime scene so well to remove every trace of DNA and blood, why would he leave Halbach’s SUV and keys in plain sight to be found?). Taken together, all of the incongruities leave a distinct impression at least some of the evidence was planted to ensure a conviction.
And to that end, the series becomes a collection of moments where you start wondering if this shit can possibly be legal, and become shocked when the supposed arbiters of law and order bend over backwards to justify and allow things which seem on their face to be crooked. The most egregious example being Dassey’s confession. Whether any judge or court ever admits to it or not, the confession is one of the most striking, disturbing and appalling examples of a coerced confession I’ve ever seen. Not only is it a situation where the boy’s own lawyer and investigator cooperated with police in ways to help with the conviction and allowed him to be questioned without counsel, it’s also a case where the suspect was so out of understanding what was happening that he admits to rape and murder and then asks when he’ll be able to go back to school to turn in his class project.
From David Browne at Rolling Stone:
As viewers, we have plenty of "whoa!" moments here, as when the defense team finds a clearly tampered-with vial of blood. What were those moments for you as filmmakers?
Demos: Certainly the Brendan revelation. I don't think we saw that coming at all. That was the first press conference we attended, and that clearly changed things. When we first saw the video with Brendan — his defense investigator virtually interrogating his own client to get a statement out of him — we said, "Wait ... who's this? What cop is this?" It took a long time for us to realize this was his own defense investigator. There were definitely revelation moments and seeing things connect.
Whether or not one believes Avery and Dassey to be guilty or innocent, and even though the series definitely presents a perspective from the defense side of things, it’s entirely possible to believe both are guilty AND they were setup. Don’t get me wrong. A woman is dead, someone or someones killed her, and they should pay. But the series is more about the process by which “justice” occurs within the backdrop of a society, with all its flaws.
My mother grew up poor on a cotton farm in Mississippi, and likes to say shit has a way of rolling downhill on someone. While the recent #BlackLivesMatter movement has brought attention to what it means to be treated as a person of color in the system and how that ties into white privilege, being considered “poor white trash” has connotations all of its own.
Let's note here that Steven Avery is white, Teresa Halbach was white, Avery's nephew Brendan Dassey is white, all the police officers and judges and lawyers are white. Many, many stories about the American justice system are stories about race. This one is a story about class, unambiguously. It's about other things, too, but this show doesn't exist without profound, pernicious in-group/out-group class conflict, one that posits that the Avery clan can never be fully innocent because they're already guilty of the greatest crime in America: being poor.
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Six common causes of wrongful conviction: The Innocence Project lists the following as the most common factors in miscarriages of justice: eyewitnesses misidentifying suspects, false confession, government misconduct, unreliable scientific results, false testimony from informants, and inadequate assistance of counsel.
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President Obama cannot pardon Steven Avery: On both change.org and the White House’s own website, hundreds of thousands of people have signed petitions asking for President Obama to issue a pardon to Steven Avery and Brendan Dassey. Last Thursday the White House issued a response which explained the president does not have the power to pardon a state criminal offense.
Under the Constitution, only federal criminal convictions, such as those adjudicated in the United States District Courts, may be pardoned by the President. In addition, the President's pardon power extends to convictions adjudicated in the Superior Court of the District of Columbia and military court-martial proceedings. However, the President cannot pardon a state criminal offense.
Since Steven Avery and Brendan Dassey are both state prisoners, the President cannot pardon them. A pardon in this case would need to be issued at the state level by the appropriate authorities.
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A juror claims intimidation: Filmmakers Ricciardi and Demos have reported they’ve been contacted recently by a juror in the Avery case who claims they were pushed towards voting for conviction out of fearing for their “personal safety.”
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Prosecutors and police officials charge the series with bias: Both Mantiwoc County Sherrif Robert Hermann and prosecutor Ken Kratz, who is ultimately revealed to have some skeletons and corruption of his own, has been giving interviews to various media outlets claiming Making a Murderer left out evidence pointing to Avery and Dassey’s guilt. The evidence he offers is largely circumstantial, but significant if true. But it’s also dependent on trusting Kratz and his interpretation of the evidence, which is in some ways an even taller proposition.
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West Memphis Three: A little over twenty years ago, three young teens — Damien Echols, Jessie Misskelley, and Jason Baldwin — were convicted of the murder of three children who were found nude and hogtied in West Memphis, Arkansas. The three teens shared the feature of being poor and not exactly fitting in with the surrounding community, with the news media feeding hysteria about the killings being part of occult human sacrifices. Misskelley confessed to the crime after hours of interrogation and leading questions which extracted “a false story from ... an unsophisticated young man with a low IQ.” His confession was used against Echols and Baldwin. A series of HBO documentaries detailing the inconsistencies in the case was able to focus attention on what happened and raised serious questions about the fairness of the process. New forensic DNA evidence in 2007 revealing the presence of material that did not match Echols, Misskelley and Baldwin, or the three victims. It took another 3 years and an order by the Arkansas Supreme Court before a deal was struck allowing the release of the West Memphis Three. Last Saturday, Damien Echols wrote a piece at the A.V. Club giving his opinion about Making a Murderer and what it says about the precarious state of justice.
Over the holidays I started receiving tweets, Facebook posts, emails, and media requests for interviews regarding my thoughts about the new Netflix series,Making A Murderer. I don’t watch much TV, and I don’t pay attention to the news, but after learning the details of Steven Avery’s case, I have found myself haunted by the parallels to my own life. With each unfolding scene I had the sickening sense that this story will never end, cast as it is with the same characters acting out the same tired old tricks: corrupt cops, inept or powerless public defenders, judges, and prosecutors pursuing political agendas rather than justice for all concerned … People have told me over and over that my story is unique, the circumstances of my case—the injustice to the real victims, their families, to the West Memphis Three—made for a perfect storm, never to be seen again. But lightning does strike twice, and many more times after that—my story and Steven’s are only two in the vast, impenetrable legal landscape.
Why is it that those who are in the positions to protect us consistently get away with atrocious acts of corruption and violence, without consequences, without accountability? They are protected by the very ones who should be policing them.
If you think this couldn’t possibly happen again to you, that you’re protected—you’re wrong. Everyone is at risk. Just ask tennis player James Blake, who was recently attacked by a police officer in a case of “mistaken identity.” It can happen to anyone, and until reforms are put in place to hold our justice system to a higher standard, we are all accountable for its victims.