Critiquing a murderer

If there was ever an example of how the adage ‘The evidence speaks for itself’ is mistaken, it’s the show Making a Murderer. The Netflix documentary series goes to great lengths to not only show up holes in the prosecution’s cases against Steve Avery and Brendan Dassey for the death of Teresa Halbach; it also seriously suggests that the Manitowoc County Sheriff’s Department planted evidence to secure a conviction. The also toys with the idea that the guilty verdicts Steve and his nephew, Brendan Dassey, received were motivated – at least in part – by local prejudices against the greater Avery clan.

All without the documentarians having to say a single word.

True crime documentaries have always been popular, but I guess after the success of The Jinx and Serial, there has been a resurgence in interest in how serious crimes are investigated and prosecuted. Serial in particular took what looked like a standard ‘Boyfriend murders ex-girlfriend’ story and prised apart the seemingly straightforward prosecution, revealing a case filled with unreliable witnesses for the State, and dodgy use of then-new digital forensic evidence. As I wrote here and here, Serial’s Sarah Koenig used evidence in a really interesting (but sometimes frustrating) way, contrasting the weight the prosecution and the defence placed on the evidence at trial with the results of her own investigation into the guilt or innocence of Adnan Syed.

Sarah’s voice is crucial for the effectiveness of Serial’s story-telling. In the case of Serial we have a fair idea of what Sarah is thinking, and it’s relatively easy to recognise what assumptions and prejudices she brings to the table. Serial was equal parts the story of Adnan Syed’s probable innocence and Sarah Koenig’s attempt to unravel a case well after it had been tried. Making A Murderer, however, has no narrator. Rather, the story of the prosecutions of Steve Avery and Brendan Dassey are told entirely via the careful selection of archival footage (and what are, I assume, a few modern day interviews). As such, Making a Murderer goes about the process of outlining the apparent injustices in the prosecutions of Steve Avery and Brendan Dassey in a quite different (and probably more problematic) way.

In my PhD, and then the book I based upon it (available here), I discuss how selectively citing evidence is one effective way to make a case look stronger than it might be. Making a Murderer presents the case for the defence, and – on the face of it – it looks strong. There are clear procedural issues in the State’s case, for example, and it seems reasonable to assume that some of the investigating officers were not playing fair. Yet whilst we are presented with obvious flaws in the prosecution’s case, it is still the case that the various appellate courts have upheld the guilty verdicts which were handed down. Crucially, we never see the legal reasoning of these higher courts. So, while their calls to uphold the guilty verdicts seem ridiculous, we are never told on what points of law the courts made their decision.

All of this is to say that what we’ve seen in Making a Murderer, I think he’s innocent of the crime the State claims he committed. ((Note the caveat here; I don’t know if Steve Avery is innocent of the crime of killing Teresa Halbach; I simply don’t think the State’s construal of what happened that day is plausible.)) But is very much ‘from what I’ve seen’. Unlike Serial, where Sarah Koenig at least toyed with the idea that maybe Adnan Syed was guilty, Making a Murderer never seeks to present the case for the prosecution as anything other than the product of a conspiracy by the Manitowoc County Sheriff’s Department and the District Attorney to convict Steve Avery (and Brendan Dassey) by any means necessary. The evidence presented indicates the likely innocence of Avery boys, but the case for the prosecution is never filled out.

Yet – as I said – we know that the prosecution of Steve Avery and Brendan Dassey was successful. We know that various higher courts have upheld those verdicts. It is, then, obvious that there is something compelling about the prosecution’s case that we have not been told. This is not to say Making a Murderer is fraudulent, or that there was no great injustice. Rather, it’s the recognition that we only get to see a part of the story, and recognising that fact makes the case more interesting. Why was the jury persuaded of the State’s seemingly flawed case? Why have the various appellate courts upheld those verdicts, given the issues illustrated by the defence? Is it really just a system covering up for itself, or is there something about the prosecution’s case that we have not been told?

Strangely enough, I’m not so much interested in ‘Making a Murderer’ for its central conspiracy theory ((Fine. I will say one thing; I find it astounding that the prosecution essentially gets away with describing two seemingly incompatible theories of how Teresa Halbach was killed. The theory as to her fate in the Steve Avery prosecution differs remarkably from that in the prosecution of Brendan Dassey. The fact it is the same prosecutor in both cases compounds this issue; the State effectively has secured two convictions for the same murder, one of which – if true – suggests the other could not have happened the way the prosecution has argued elsewhere.)) as I am for how ably it makes you root for Steve and Brendan’s defence counsels. This is despite the fact that we know both of the accused end up being convicted of crimes it seems they did and could not have committed. Knowing that outcome, and yet seeing the two cases play out over some eight or so hours, pushes buttons. Making a Murderer is, then, audience manipulation at its finest.