Thursday, January 7, 2016

Making a Murderer: Showing Us the Truth about our Unjust Justice System

There are monsters in Making a Murderer, the 10-hour documentary released on Netflix just a few weeks ago, but likely not Steven Avery and definitely not his nephew Brendan Dassey, both sentenced to life imprisonment for the murder of Teresa Halbach ten years ago, in 2005.  No, the indisputable monsters in this true story are police, prosecutors, and Dassey's first defense attorney.

Also indisputable is that Avery was not guilty of a rape and assault committed in 1985,  for which he served 18 years in prison - nearly half of them after the real criminal confessed - said confession shelved by the detective who could act upon it - and for which crime Avery was released only after the discovery of DNA that was the rapist's not Avery's.

Much of the 10 hours of Making a Murderer are the trials of Avery and his nephew for the 2005 murder, and the various appearances in court before and after the trials.   These courtroom scenes in themselves make Making a Murderer like no other documentary you've ever seen, and one especially and ideally suited to streaming on Netflix.  As you watch hour after hour of this wrenching horror story unfold, you feel for all the world as if you're actually in those courtrooms, in the jury box, watching the proceedings unfold.  (I served as foreperson on a jury on a much lesser criminal trial a few years ago, and watching Making a Murderer brought all of that back.)  The interviews, especially with Avery's attorneys and family, are also indelible.

Brendan Dassey was convicted on no evidence other than a confession obtained by police, who fed him the elements of the confession, and by a ratification of that confession by his first defense attorney's investigator, who for some reason (he and the attorney) wanted their client to confess to Halbach's murder.  The amazing and sickening thing about both of those confessions, and the role of the detectives and the defense attorney's investigator, is that the interrogations of Dassey, then 16 years old and with limited intellectual capacity, were fully recorded on video.  But more sickening and horrifying than that was the fact that the jury and judge in the original trial, and subsequent judges who reviewed the case and trial, saw those videos - as did we, the audience of this remarkable documentary.   The decisions of those jurors and judges, on the basis of what we have seen with own eyes, is about the worst indictment of our legal system I've ever seen.

Avery's situation is a little more complicated.  He never confessed.  He was convicted for the murder on the basis of evidence - such as his blood found in the victim's car.  An FBI agent testified that a test proved the blood was fresh - not taken from a vial of Avery's blood stored from the 1985 case. A forensic expert called by the defense testified that the FBI agent had not accurately reported the limits of the test - in particular, that the lack of an EDTA finding in the test did not prove that EDTA was not present in the blood (yes, that's the way many of these tests work - a positive finding means the chemical was present, but a negative finding does not mean it was not).  The forensic expert explained this very clearly.  Enough for reasonable doubt and a not-guilty verdict, right?  You might think so, but not in this trial (though it was later revealed that 7 of the 12 jurors in the Avery case initially wanted a not-guilty verdict, and were inexplicably talked out of it).

Winston Churchill is famous for saying democracy is the least worst form of government, and Making a Murderer provides a vivid piece of evidence that the same could be said for our judicial system.   Video evidence, seeing something with your own eyes, was apparently not enough in Dassey's case.  But, then again, it hasn't been enough in the cases of cop after cop in the past few years, shown right there on video shooting or otherwise killing an innocent African American - not enough for grand juries to indict, or if they do indict, for most juries to return a guilty verdict (see my Eye in the Sky in the Hand for more).

The common awful denominator of Making a Murderer and all of those black lives matter cases is the undue respect so many Americans have for our police and prosecutorial systems.  One can only hope that, as more people see this extraordinary documentary, they will begin to see the truth behind the curtain.   Thank you filmmakers Moira Demos and Laura Ricciardi, and Netflix, for bringing this to our attention.

PS added 13 August 2016: I was delighted to see that a Federal judge overturned the conviction of one of the two defendants, now 27-year old Brendan Dassey, on grounds that his confession (the unfair circumstances of which were vividly presented in the documentary) was "involuntary under the Fifth and Fourteen Amendments" to the U. S. Constitution.  (See also McLuhan in an Age of Social Media for more on the salutary connection of binge-watching and justice.)
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