This article, originally published March 2, 2016, was updated August 12, 2016. Scroll to the end for the update.
So, it seems that much of the country right now (winter 2016) is talking about–when they’re not talking about politics–a documentary series that was recently posted on Netflix, Making a Murderer, created and directed by Laura Ricciardi and Moira Demos. I heard a lot of “buzz” about this series on Twitter and from my husband, who listens to a lot of podcasts discussing current events, so one night a few weeks ago after my weekly dose of Lost I decided to try watching it. I’ve now finished the ten-hour series, and at the request of one of my readers I decided to do a review of it, though I’m cognizant of courting controversy as I do so. Making a Murderer has generally been getting excellent reviews, and at least on social media there’s been a swell of support for its protagonist, Wisconsin inmate Steven Avery, to be exonerated of his 2007 conviction of murder. I’m not going to join that bandwagon. I believe there are serious problems with Making a Murderer, both in its concept and execution, which I find difficult to get past. I think the series does a considerable disservice to the genre of documentary reporting that many people have lauded it as a shining example of. In short, I find it troubling, and not entirely for the same reasons that many others do. (Spoilers, obviously).
Steven Avery, a man from a poor family in Wisconsin that ran a junkyard, was arrested in 1985 for the brutal attack and rape of a local woman. After investigation by the Manitowoc County Sheriff’s Department, Avery was convicted and spent 18 years in prison, despite little evidence that he did it–and considerable evidence pointing to someone else as the rapist. Indeed even the victim recanted, admitting she was honestly mistaken as to her attacker’s identity, but the Manitowoc County police sat on evidence of his innocence. When DNA tests proved Avery didn’t do it, he was exonerated and released in 2005. While he was suing Manitowoc County for his wrongful imprisonment, he was accused of murdering a young photographer, Teresa Halbach, whose bones were found in a burn pit on the Avery family’s property and whose car was found in the junkyard smeared with Avery’s blood. Manitowoc County law enforcement was again at the center of this case, but something was quite fishy. Procedures weren’t followed, a test tube of Avery’s blood was clearly tampered with, and the key to the victim’s car looked as if it was planted in Avery’s house. Most disturbing, police extracted a spurious confession from Brendan Dassey, Avery’s mentally challenged 16-year-old nephew, which began to fall apart almost instantly. Both Avery and Dassey were found guilty and sent up for life. Their families steadfastly maintain their innocence.
Journalists and documentarians taking up the cause of people wrongfully punished by the justice system is a long and vital tradition in democratic societies. Perhaps the greatest exemplar of this is French novelist Émile Zola, who wrote extensively on the case of Alfred Dreyfus, a French Army officer wrongly accused of espionage in the 1890s. More recently, the documentary Paradise Lost and the podcast Serial have drawn public attention to troubling miscarriage-of-justice cases. Making a Murderer clearly wants to be in this league. Yet the series fails at the necessary prerequisite to making a successful documentary case about a miscarriage of justice: establishing trust with its audience. As I watched the series I found that I didn’t trust the filmmakers were telling me everything I needed to know. Especially in its final episode, Making a Murderer felt manipulative. I felt, instinctively, that Ricciardi and Demos were trying to lead me on a leash to a particular conclusion, and that the pathway to that conclusion was not entirely honest.
It turns out there’s ample reason to believe that instinctive feeling was right. When discussing the 1985 rape of which Avery was exonerated, the series presented the evidence in a logical and straightforward fashion: who did what to whom, and the evidence that clearly indicated someone else, not Avery, raped the victim. However, when it came to the Teresa Halbach murder, the series was curiously circumspect. We were never told any coherent narrative of a sequence of events surrounding her death; we were never told of Avery’s alibi (if he had one); it was left unclear what the victim was doing on the Avery property in the first place (at least the film leaves out the fact that she had been there before); and, most telling, the film was written and edited in a way to carefully avoid these questions. Since Making a Murderer was released, various articles in the press have presented key pieces of evidence that were entirely left out of the film, chief among them the other DNA evidence, not related to the tampered-with blood vial, that linked Avery to the victim’s car, and further ballistics evidence–both impossible to fake. Why, with its lavish detail on the evidence of police misconduct–which is compelling and disturbing–would the filmmakers choose not even to mention these things?
Steven Avery was exonerated of a 1985 rape committed by another person–this is his mug shot when arrested for that crime–but he’s had a much harder time proving he is not guilty of murder.
I suspect the answer is that the filmmakers wanted to keep the issues raised by the film on the terrible malfunction of the justice system, and not on questions of Avery’s guilt or innocence. That’s a laudable goal, but frankly the series utterly botches it on the conceptual level. Making a Murderer seems to accept Avery’s innocence unquestioningly. It might have framed the issue like this: “We do not know if Steven Avery is guilty or innocent of Teresa Halbach’s murder. But whether he is or not, is what Manitowoc County law enforcement did in this case a fair way to go about administering justice?” That would have been a powerful question, setting up a much-needed debate about how the American criminal justice system functions in the real world and how far it misses the mark of providing impartiality and the presumption of innocence to those who encounter it. But Making a Murderer not only did not frame the issue like that, it seems afraid to frame the issue like that. It wants us to believe in Steven Avery’s innocence, because the outrage we feel at the system’s failure of him is that much starker if we believe an innocent man is suffering as opposed to a guilty one. Consequently, it withholds facts that might lead viewers to conclude that he could be guilty.
Émile Zola would have had none of this. He was not afraid of any facts, any conclusions; when he defended Alfred Dreyfus, most notably in his 1898 editorial J’Accuse, he essentially dared the French state to prosecute him for libel so the true facts of the case would get a hearing in open court, a venue Zola could not control. He was that confident the facts would show Dreyfus was innocent. Eventually they did. If Dreyfus really was a spy, that wouldn’t have made what the French state did to him right or justifiable by any means, just as, if Avery is guilty of Teresa Halbach’s murder, that does not mean that if (as seems likely) Manitowoc County planted evidence and railroaded Brendan Dassey that it was justifiable, legally or morally. The ends do not justify the means. But after watching Making a Murderer, that’s not the conversation we’re having about Steven Avery. I’m not sure what we are talking about, except it’s not about that. This is why I suggest that Making a Murderer is hopelessly confused, on a conceptual level, and ultimately a failure as a serious documentary despite the obvious technical and creative skill that went into it.
Émile Zola was a famous French writer who took up the cause of Alfred Dreyfus, an army officer accused of espionage. Dreyfus’s persecution was motivated largely by anti-Semitism.
There are serious questions in the Avery case. To the extent Making a Murderer succeeds, at least it makes this point clear. The procedures and ethical controls of police departments and court officials, certainly in Manitowoc County, Wisconsin and just about everywhere else in the U.S., are alarmingly susceptible to bias, influence or deliberate villainy. The case of Brendan Dassey seems especially problematic; as a former lawyer I found the treatment of his confession, which was videotaped, appalling. These are all important and legitimate issues. But I wish these issues were conveyed in a less flawed and more trustworthy vessel than Making a Murderer. I wish the film cared more than it seems to about who really killed Teresa Halbach, whose family seems especially poorly-treated and marginalized. If Émile Zola is the gold standard of this sort of reporting, the mineral Making a Murderer most resembles is pyrite–fool’s gold.
Update 12 August 2016
Just today it was announced that a federal judge threw out Brendan Dassey’s conviction on the grounds that his confession was coerced. Regardless of my opinion of the series or my doubts about Avery’s innocence, legally I think this is the right result for Dassey. The State of Wisconsin may retry him, but hopefully they will do so fairly.