Is Making a Murderer Guilty of Bias?

Kathryn Schulz (The New Yorker) explores how Netflix’s true crime documentary goes wrong
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A still from the title sequence of Netfix’s Making a Murderer (2015)
By chance, I have known many of the details of the Avery case since long before the release of “Making a Murderer,” because in 2007 I spoke at length with Penny Beerntsen. At the time, I was working on a book about being wrong—about how we as a culture think about error, and how we as individuals experience it—and Beerntsen, in identifying Avery as her assailant, had been wrong in an unusually tragic and consequential way.

Beerntsen had also been unusual among crime victims involved in wrongful convictions in that she had instantly accepted the DNA evidence—and, with it, her mistake. “It ain’t all her fault, you know,” Avery had said at the time of his release. “Honest mistake, you know.” But Beerntsen had felt horrifically guilty. “This might sound unbelievable,” she told me when we first talked, “but I really feel this way: the day I learned I had identified the wrong person was much worse than the day I was assaulted. My first thought was, I don’t deserve to live.” She wrote Avery a letter, apologizing to him and his family, and, concerned by the missteps and misconduct that led to his incarceration, became involved with the Innocence Project, which seeks to free the wrongfully convicted and to reform legal practices to help prevent miscarriages of justice.

Given her history, Beerntsen does not need any convincing that a criminal prosecution can go catastrophically awry. But when Ricciardi and Demos approached her about participating in “Making a Murderer” she declined, chiefly because, while her own experience with the criminal-justice system had led her to be wary of certitude, the filmmakers struck her as having already made up their minds. “It was very clear from the outset that they believed Steve was innocent,” she told me. “I didn’t feel they were journalists seeking the truth. I felt like they had a foregone conclusion and were looking for a forum in which to express it.”

Ricciardi and Demos have dismissed that idea, claiming that they simply set out to investigate Avery’s case and didn’t have a position on his guilt or innocence. Yet “Making a Murderer” never provokes the type of intellectual and psychological oscillation so characteristic of Koenig and Snyder’s “Serial.” Instead, the documentary consistently leads its viewers to the conclusion that Avery was framed by the Manitowoc County Sheriff’s Department, and it contains striking elisions that bolster that theory. The filmmakers minimize or leave out many aspects of Avery’s less than savory past, including multiple alleged incidents of physical and sexual violence. They also omit important evidence against him, including the fact that Brendan Dassey confessed to helping Avery move Halbach’s S.U.V. into his junk yard, where Avery lifted the hood and removed the battery cable. Investigators subsequently found DNA from Avery’s perspiration on the hood latch—evidence that would be nearly impossible to plant.

“It was very clear from the outset that they believed Steve was innocent,” she told me. “I didn’t feel they were journalists seeking the truth. I felt like they had a foregone conclusion and were looking for a forum in which to express it.”

Perhaps because they are dodging inconvenient facts, Ricciardi and Demos are never able to present a coherent account of Halbach’s death, let alone multiple competing ones. Although “Making a Murderer” is structured chronologically, it fails to provide a clear time line of events, and it never answers such basic questions as when, where, and how Halbach died. Potentially critical issues are raised and summarily dropped; we hear about suspicious calls to and messages on Halbach’s cell phone, but these are never explored or even raised again. In the end, despite ten hours of running time, the story at the heart of “Making a Murderer” remains a muddle. Granted, real life is often a muddle, too, especially where crime is involved—but good reporters delineate the facts rather than contribute to the confusion.

Despite all this, “Making a Murderer” has left many viewers entirely convinced that Avery was framed. After the documentary aired, everyone from high-school students to celebrities jumped on the “Free Avery and Dassey” bandwagon. In the weeks since, people involved in the conviction have been subjected to vicious and in some cases threatening messages from Netflix-watching strangers. (So have people who were not involved, including the Manitowoc Police Department, a separate entity from the county sheriff’s department.)


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A still from the title sequence of Netflix’s Making a Murderer (2015)

For those people, and for others close to the original case, “Making a Murderer” seems less like investigative journalism than like highbrow vigilante justice. “My initial reaction was that I shouldn’t be upset with the documentarians, because they can’t help that the public reacted the way that it did,” Penny Beerntsen said. “But the more I thought about it, the more I thought, Well, yeah, they do bear responsibility, because of the way they put together the footage. To me, the fact that the response was almost universally ‘Oh, my God, these two men are innocent’ speaks to the bias of the piece. A jury doesn’t deliberate twenty-some hours over three or four days if the evidence wasn’t more complex.”

“Making a Murderer” raises serious and credible allegations of police and prosecutorial misconduct in the trials of Steven Avery and Brendan Dassey. It also implies that that misconduct was malicious. That could be true; 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.

Ricciardi and Demos instead stack the deck to support their case for Avery, and, as a result, wind up mirroring the entity that they are trying to discredit.

That same reasoning, with the opposite aims, seems to govern “Making a Murderer.” But while people nearly always think that they are on the side of the angels, what finally matters is that they act that way. The point of being scrupulous about your means is to help insure accurate ends, whether you are trying to convict a man or exonerate him. Ricciardi and Demos instead stack the deck to support their case for Avery, and, as a result, wind up mirroring the entity that they are trying to discredit. [Read the Full Article]

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