The making of “The Making of a Murderer”
I haven’t seen the Netflix series “The Making of a Murderer,” and I probably won’t—too time-consuming. But I’m familiar with a lot of criminal cases where the convicted person has been exonerated, including cases in which eyewitness testimony turns out to have been wrong (see this for a discussion of the problems with eyewitness testimony).
“The Making of a Murderer” is a documentary which has caused scads of people to feel so strongly that convicted murderer Steven Avery was railroaded by local Wisconsin law enforcement and the justice system when he was tried for the 2005 murder of photographer Teresa Halbach and found guilty that they’ve started a huge petition for his pardon:
The documentary, and Avery’s defense team, suggested that law enforcement officials in Manitowoc County planted evidence against Avery after he filed a $36 million federal civil rights lawsuit against the county over his 1985 conviction. The current sheriff of Manitowoc County has rejected those claims.
Avery’s original 1985 rape conviction (not the 2005 murder conviction) was a case of mistaken eyewitness testimony, and he was exonerated by later DNA tests. This is similar to the way in which quite a few other convicts have been cleared now that DNA testing has been perfected, a review that was sparked by the Innocence Project. But prior to that mistaken conviction (and by the way, the actual perpetrator turns out to have physically resembled Avery), Avery had been a criminal and had engaged in animal torture and burning:
At age 18, Avery pleaded guilty to burglary of a bar and was sentenced to 10 months in prison. When he was 20, Avery and another man pleaded guilty to animal cruelty after pouring gasoline and oil on Avery’s cat and throwing it, alive, into a fire; Avery was again sentenced to prison. In 1985, Avery was charged with assaulting his cousin, the wife of a part-time Manitowoc County sheriff’s deputy, and possessing a firearm as a felon. The same year, he was also convicted of raping a Manitowoc woman, Penny Beerntsen, of which he was later proven innocent. He served six years for assaulting his cousin and illegally possessing firearms, and 18 years for the assault, sexual assault, and attempted rape he did not commit.
And that’s not all; there are also these additional allegations [from a 2006 article]:
The collective allegations of depravity are numbing, even when he was incarcerated. In recent court filings arguing for changes in bail, investigators alleged that early in his incarceration he threatened to kill and mutilate his own wife. They also contend he told another inmate at some point that he had drawn up plans for a “torture chamber” for kidnapping, raping and killing women.
Nevertheless, part of the 18 year sentence was indeed for a rape he didn’t commit. And we know that law enforcement can and sometimes does act in unethical ways in order to get someone.
However, from everything I’ve read about this case (and subsequent to the controversy, I have read a good deal), Avery in fact committed this murder. The evidence is, quite simply, overwhelming. The “Making of a Murderer” documentary, moreover, does not present all of it. And yet millions of people have become convinced by the documentary of Avery’s innocence, without knowing (or perhaps caring?) that they’ve been getting a skewed picture.
Propaganda works. And that’s what this is.
[NOTE: If you want to read some in-depth articles about the problems with the documentary, please see this, this, this, and this, among others.
The show includes comments from an excused juror in Avery’s case suggesting his conviction was based on flawed evidence.
But Diane Free, a juror who was present to the end, told The Associated Press by phone that she was “comfortable with the verdict we reached. The thing on Netflix was a movie, not a documentary.”…
…In an email to TheWrap on Monday, [prosecutor] Kratz [says] the documentary series got it wrong.
The email concludes with Kratz saying Netflix should “either provide an opportunity for rebuttal, or alert the viewers that this series was produced by and FOR the defense of Steven Avery, and contains only the opinion and theory of the defense team.”
Kratz’s email is presented in its entirety at the link, and it’s well worth reading.]
[ADDENDUM: Here’s another good analysis of the flaws in the conspiracy theories.]
I have heard that police consider eye witness testimony to be the most unreliable.
I think you have to go with Occam’s razor on this case. I am not sure she was killed according to the theory the prosecution put forward (none of her DNA was in the trailer) but I do think he did it. I am just so uncertain of the nephew’s involvement. The nephew seemed almost autistic to me. The shame of the Manitowoc justice system seems to me to be the interviews of the nephew. I have no sympathy for Avery, but I think the mentally challenged, really low IQ nephew got a raw deal. They should reexamine his case.
Avraham Rosenblum:
Yes, the link goes into the difficulties with eyewitness testimony.
Avery’s rape conviction rested in large measure on an eyewitness identification that turned out to be incorrect. His murder conviction is different; it rests on forensic evidence, in the main.
Janetoo:
From what I’ve read, the nephew’s involvement may be more sketchy. But Avery’s involvement is quite clear, and rests on forensics.
In order to doubt it, one has to posit a conspiracy so massive it would involve enormous numbers of personnel working on the crime, and those workers would have to have had second sight and have anticipated all sorts of things and planted evidence involving them, as well as to have somehow arranged for the victim to have gone to Avery’s business after phone contact with him, and then to have somehow been killed at that point by someone else.
I don’t doubt it. What I was saying is – the evidence points to him entirely – the circumstantial evidence. I do think Avery is guilty. They (the police) just went about it so sloppily, the two cops who were being sued found the bullet and the key when they weren’t even supposed to be involved in the search. Manitowoc acted corrupt and creepy. What I meant was Occam’s razor – the simplest explanation is usually the correct explanation. I do, however, think there is a strong possibility they planted the key and bullet to make the case solid. I don’t think he killed her in the trailer. I think the nephew merely helped burn the body, etc. I think they have the right guy, but I also think there is corruption aplenty.
I agree that material evidence ought to count for a lot. Forensic evidence however can be a lot of different things. But material evidence does mean a lot.
Janetoo:
You have to delve into the details to see why it’s highly unlikely that those things were planted. For example, from the Harsanyi article (which I hope you’re read in depth):
If I’m not mistaken—I’m doing this from memory; don’t have time to check right now—the other question is: if they planted the keys, where did they get them from?
See this (and there’s lots more):
Please read the whole thing. It’s quite overwhelming.
One more thing—I can’t find the source right now, but I read elsewhere that the keys were found only after a dresser in the room was either moved or broke in some way, and the keys which had not been in sight before either fell on the floor or dropped to the floor at that point.
Mistakes are made and when an innocent loses his or her liberty due to an incorrect verdict that is truly a tragedy.
However, as it seems with Avery, law enforcement rarely grabs boy scouts or nuns off the street and throws them in a line up. Often times people falsely imprisoned for a crime were well known n’er do wells in their community prior to their false incarceration.
Glenn Reynolds recently printed a proposal from a lawyer that law schools balance any extra-curricular legal groups formed by students. For example, it’s not unusual for law students to take up cases of convicted murderers and work to exonerate some. A student group like that should be balanced with a group that works with prosecutors to incarcerate guilty perpetrators who are currently free.
Like you, neo, I won’t watch this (as compelling as it sounds) because the documentarians choose the data they show the audience and the data they do not show the audience.
A person doesn’t have to actually go all the way to prison to be harmed by the system. Rattling a cage, and going to peoples place of work to investigate often leads to employers wanting to play it safe and separate themselves from a person. If this is due to false accusation or similar, the person may never get back on track as good as it was, though on some level everyone recovers to some degree.
I saw all sorts of people on The Federalist forums comment on this who I’d never seen before. The negative review of the series just drew them out of the woodwork.
Matt_SE:
Yes. Many people have hopped on the bandwagon of freeing this guy. They remind me very much of Kennedy assassination conspiracy theorists and 9/11 truthers. They fasten on one or two facts that they don’t like and ignore the whole, and do so with remarkable vehemence.
It’s not about whether they like it or not. It’s about who is pulling their strings and what triggers are being used and why.
Looking at the tool won’t tell you what the purpose of the user is all about.