The latest streaming rage is the Netflix produced documentary, Making a Murderer. The story follows, primarily, the narrative of Wisconsin resident Steven Avery, wrongly arrested for rape, released after 18 years in prison, then rearrested on murder charges after filing a civil suit against Manitowoc County, Wisconsin.
At only 10 episodes the series makes for perfect binge-watching. This seems to be the preferred method of people who’ve seen it thus far.
The following two paragraphs are a summary of the foundational facts. No spoilers.
Steven Avery was convicted of rape (after a string of other arrests) in 1985, this despite seemingly incontrovertible evidence placing him many miles away, in numerous locations, in front of different witnesses, and a time stamped receipt for a purchase. He was exonerated in 2003 based on DNA evidence.
Following his exoneration Avery sued the county for $36 million, but before the payout was finalized he was arrested for the murder of Auto Trader photographer, Teresa Halbach. This sets the stage for the bulk of the tale, which includes so many twists and turns the film industry could scarcely match the complexity.
Truth, as they say, is stranger than fiction. (If you’ve already seen the documentary, I encourage this brief but strong critique offered by Joe Carter. It is a reminder that not even documentaries are bias-free.)
My takeaways are not related directly to the specific narrative of the documentary, but are related to the criminal justice system. Here are a list of things than came to mind as I watched Making a Murderer.
First, no matter what you may have been led to believe in civics class the purpose of the criminal justice system is not to find justice. It is to get confessions or plea bargains. From the moment a person is arrested, especially a poor person without resources for a knowledgeable, experienced lawyer, an accused is penalized for maintaining their innocence. You are guaranteed a trial, but the system is designed to elicit confessions or plea bargains instead.
Second, the police and prosecutors are allowed to lie at different times, and do. Forget for a moment Avery’s claim to frame, and think about the interview process itself. It is perfectly legal for the police to lie in an interrogation to get a person–you or a family member–to confess to a crime. Even in a police interview you could accidentally implicate yourself in a crime you had nothing to do with. You can get in trouble for lying; they cannot. “Anything you say can and will be used against you in a court of law.” Miranda’s warning is crucial.
Related to this is the District Attorney, and his/her office. In a case where I had firsthand knowledge of the events (I know the accused, and attended the trial), the ADA prosecuting the case leaked evidence to the local newspaper editor. The evidence–which would have required dismantling part of the house to find–would have been utterly damning to the defendant. There was no such dismantling. I knew for a fact the “evidence” had not been discovered. Because it was bogus it was never presented or referenced at trial (though it was MUCH stronger than some “evidence” that was presented). This reality did not stop the newspaper from printing the ADA’s lie. The attempt was, of course, to influence potential jurors.
Third, never talk to law enforcement without an attorney. Ever. Review this video of a law professor and former police detective as often as you need. Plenty of negatives can result from “having nothing to hide.” Here is another attorney’s take.
Fourth, the 5th Amendment is your friend, not your enemy. It protects innocent people. See the video above.
Fifth, court appointed attorneys (public defenders), are rarely able to provide the best defense in court. In many, many places they are overworked with caseloads physically impossible to manage. A single Indiana public defender had 176 felony cases to consider while maintaining a private practice. That amounts to more than three cases per week in addition to other work. The results are plea bargains or guilty pleas.
Sixth, once arrested, if you are not a person of means, you may find yourself in a system from which you cannot extricate yourself. If you cannot make bail you stay in jail until your trial. If you stay in jail for too long you lose your job, your living place, your possessions, etc. If your court-appointed attorney works out a plea deal for you, it could mean more jail time. Remember, justice is not the goal of the system.
Seventh, it is the court, not you, who determines whether you can afford an attorney. Court appointed attorneys are not for people in suburbia. Prepare to borrow money against your house, or sell a bunch of heirlooms.
Eighth, the police do not need to suspect you of a crime for you to be arrested. In some places, if a neighbor, ex-spouse, ex-bff, or angry co-worker decide to swear out a warrant against you, they need only convince one person of the complaint: a magistrate judge (or other official). If your neighbor can convince a judge that you shot his cow in cold blood, it will not matter that you were at the Double Dutch Jumprope Context two counties over. The next thing you know, you could be fingerprinted, photographed, and, if you can, make bail. If this happens to you, review 1-7.
Nothing in this post should be construed as critical of an individual law enforcement officer, judge, prosecutor, or defense attorney (other than the one above who lied to the newspaper). As seen in Making a Murderer some cases are unbelievably complex, and require sifting multiple testimonies, conflicting witnesses, and many pieces of evidence. It takes a lot of skill to investigate and build some of the cases tried in our system every day.
It also takes a lot of dedication from defense attorneys, who, as we are reminded in the documentary, are usually all that stand between an accused and all the resources the state (read: our tax dollars) can marshal against their clients. Accusations are not guilt. Arrests not guilt.
There are good and decent people at every level of the justice system, just as there are bad apples at every level. The system, though, has problems and, with people’s lives and freedom at stake, these problems cannot remotely be considered minor.
If, after watching Making a Murderer, you are still in the mood for legal system documentaries, I recommend The House I Live In, about the “War” on Drugs, and Gideon’s Army, about public defenders. Both are currently available on Netflix.
