While a bunch of “Breaking News” headlines lately – Snowzilla, Zika virus, Donald Trump, Malheur Standoff, Donald Trump, Ted Cruz, and Donald Trump, Iowa Caucus, Donald Trump – have dominated the news cycles of late, I’m still stuck on the Netflix documentary “Making A Murderer.” I’ve just completed by second round through it and I have to say that my views have changed.  More about this later.

Here’s the latest about Steven Avery and Brendan Dassey.   An article in the January 25, 2016 issue of the New Yorker magazine entitled “Dead Certainty: How Making a Murderer Goes Wrong” authored by Kathryn Schulz [ DEAD CERTAINTY ] is one of a series of pushback pieces concerning the convictions of Steven Avery and Brendan Dassey for the murder of Teresa Halbach.  I also heard a WBUR discussion the other day that also pushes back against the authors of “Making a Murderer.”  To my mind, the Schulz article is as one-sided and biased against producers Laura Ricciardi and Moira Demos as she says the documentary is.

Curiously, and without purpose as far as I can tell, Schulz devotes the first quarter of her piece resurrecting Argosy magazine and the Earle Stanley Gardner “True Crime” stories in his ”The Court of Last Resort” column, the 1988 Earl Morris “The Thin Blue Line” documentary, and the “Paradise Lost” series of documentaries by Joe Berliner and Bruce Sinofsky.   While she does not explicitly say so, the apparent goal here is to contrast these “real documentaries” that obeyed some rules of documentary creation that Schulz does not explicate, in contrast to the biased, slip shod methods used by Ricciardi and Demos.  It’s all a bit gratuitous and strikes me as totally irrelevant. 

Schulz also spends a great deal of print time discussing the reactions of Penny Beernsten, the woman who wrongly identified Steven Avery as the person who sexually battered her and for which crime Avery was wrongly convicted and spent 18 years in prison, the crime for which he was exonerated in 2003.   She quotes Beernsten as stating that Ricciardi and Demos did speak to her but she felt that they had already made up their minds about the innocence of Avery and she cut off discussions.  Schulz relates to us how terrible it is for Beernsten to be in the public’s eye, the target of news media attention as she does with the Halbach family who did not cooperate with Ricciardi and Demos.  I appreciate Schulz’s sympathy for both Beernsten and Halbach families and the pain, heartache and public exposure they suffered.   But nowhere does Schulz even cast a single word toward Avery and Dassey’s families and the devastation they too suffered.   Steven Avery’s wife divorced him – they had four children – while he was serving his time for the crime he didn’t commit.  Naturally, they are the families of the accused and convicted killers so their pain and suffering is not as important, I suppose, as the victims. 

What Ms. Schulz does is basically run through all of the chinks contained in the “Making A Murderer,” all of the unanswered question that the documentary raised but does not resolve.  She spends about three sentences pointing out the discrepancies and anomalies that the documentary highlighted (there were a boatload) on the judicial side of the equation, with the exception of the trial and conviction of Brendan Dassey which she does get right.  But no one would have known that the four interview sessions conducted not by the police but by the prosecutor’s investigators in the absence of an attorney were so fundamentally flawed as to make a mockery of our justice system had it not been for Ricciardi and Demos.  After all, this teenager was facing life in prison (Wisconsin doesn’t have a death penalty) and should not have been treated the way he was by the prosecutors and the police.  But that’s the easy one.  Brendan Dassey should never have been charged much less tried and convicted of murder. 

But that certainty also puts the trial and conviction of Steven Avery under suspicion  since it was only Brendan who confessed that he took part in the murder and is the only alleged witness to the crime other than Steven.  But he recanted his confession; four times including in a letter to the judge.    Nonetheless, he was convicted of a crime that he surely did not commit.   Schulz makes no mention of how the wrongful conviction of Dassey potentially impacts the case against Avery.   

Here’s what Schulz says about this:  “After the confession [Dassey’s] is signed, the prosecutor [Special Prosecutor Ken Kratz] calls a press conference and turns Dassey’s story into the definitive account of what happened – a travesty of justice for Dassey and Avery, given the questionable nature of the interrogation, and a terrible cruelty for the Halbach family.”   She goes on:  “Put the tape in the VCR or DVD player and play it, that’s our case right there” Halbach’s brother states at a press conference.   

Schulz’s assertion that Kratz made Dassey’s – later recanted – confession into the definitive narrative account of what happened is a rather benign account.  Ken Kratz (more about this particularly smarmy piece of work later) calls a live press conference and before gleefully recounting the gruesome details of the activities of Avery and Dassey as recounted in the confession, he warns the press and the television watchers not to let children under the age of 15 watch his press conference.  Kratz, in fact, had already proclaimed Avery guilty of murdering and dismembering Teresa Halbach on television months earlier.  Schultz  has no comment on the wholly inappropriate and gruesomely detailed televised public statement by the Prosecutor based, as it is, on what Schulz says is clearly a miscarriage of justice for both Avery and Dassey.  Perhaps her sympathy for the families doesn’t allow her to weigh the definitiveness of Teresa’s brother’s conviction that both are guilty prior to trial and based on a coerced, recanted confession obtained without an attorney present. 

In another odd criticism of “Making A Murderer,” Schulz also seems to think that Ricciardi and Demos are remiss for not solving the murder of Teresa Halbach.  “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.”  One could say, however, that this is the job of the police and justice system to determine who killed Teresa and according to the justice system, it was Brendan and Steven who murdered Halbach, which is precisely the conclusion that “Making A Murder” calls into question.  This goes back to Schulz’s opening paragraphs were Earle Stanley Gardiner and Perry Mason always solved the crimes they highlighted.  In fairness to the documentary creators, they state that they were not out to prove that Avery and Dassey didn’t murder Halbach but to show how the justice system might not have worked as smoothly and honestly as it should.   While this might be an ex-post facto stance following public criticism like Schultz’s, I’m not sure it matters all that much.  Of course they selected the events over the course of their ten year work that supported their thesis and whether this thesis revolves around proving innocence or around judicial missteps, they have done a good job in exposing serious problems in both cases.  (Note that Dassey’s public defender attorney was dismissed by the judge during his trial.  Note also that Steven Avery actually has fairly solid, verifiable alibi’s for his whereabouts during the time police say Halbach was murdered.)

In another piece of gratuitousness, Schulz writes: “ Making A Murder” raises serious and credible allegations of police and prosecutorial misconduct in the trials of Steven Avery and Brendan Dassey.”  Good point.  But then she goes on for a couple of subsequent paragraphs describing how the vast majority of police and judicial conduct is proper and above board even when the system stacks the deck in favor of convictions in order to take a murderer off the street.  (Not that this was exactly the case in Avery’s first conviction.  The actual perpetrator of that sexual assault committed more sexual crimes while Avery was sitting in prison.)  She then accuses Ricciardi and Demos of stacking the deck on the side of maliciousness and malfeasance on the part of the police and justice system in “Making A Murderer.”   She is not wrong coming to this conclusion although I would say that given the number of cards and instances that clearly reflect questionable practices by the police, prosecutors and judicial officials illustrated in the documentary, it seems that they didn’t have to do much shuffling to stack the deck in the way Schulz states.

But here’s where Schulz falls down.  In all her sympathy for the families of the victims, for all the “stacking of decks” she accuses Ricciardi and Demos of committing, for the misguided efforts (her words) of petitions to free Avery and Dassey, for all of the faults she cites in “Making A Murderer,” what she fails to either recognize or acknowledge and the reason for all the public outcry in these two cases, is the growing realization that our justice system might just be – or, perhaps, is – fundamentally flawed.  That’s what “Making A Murderer” implies and amply illustrates, and coupled with other events lately that also illustrate severe problems – incarceration rates for Black men, un-equal sentencing for similar crimes between Whites and Blacks, the gunning down of unarmed Black men, women and children –– is pretty much what this documentary is all about.  It’s purpose, if you will.  Not the exoneration of Steven Avery or Brendan Dassey but a fairly solid indictment of the justice system in these two cases and two alleged criminals who might not have been served justice at all.  After all, they were both charged with murder and while Schulz might correctly proclaim that most cases in our justice system are proper and judiciously pursued, this wasn’t the case in Steven Avery’s first conviction of a crime he did not commit.  And while it might be incomprehensible that a similar injustice is being perpetrated (I mean how unbelievable is it that the same police and justice system could be improperly deployed against the same victim a second time!   It’s something out of some bad sci-fi narrative or an episode from “The Twilight Zone.”) one more time, I’m willing to suspend my judgment over this unthinkable turn of events. 

NOTE:  As I noted before, there is quite a bit of pushback against "Making A Murderer" and the methods and/or techniques that Ricciardi and Demos employed in making the documentary.   After my first viewing, I came away thinking that it doesn't show the actions of the authorities involved in both Steven Avery's and Brendan Dassey's cases in a good light.  There were, I thought then, reasonably good grounds for at least questioning the police, court and judge in both cases.  This time, I have to say that my suspicions are only more heightened that neither man was treated fairly by our judicial system.  

More tomorrow.  


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