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Making a Murderer: A Sea of Doubt

Near the end of the much-discussed agitprop Netflix true crime narrative Making a Murderer, defence attorney Dean Strang laments the pernicious persistence of certainty and the mistrust of doubt, second-guessing and reflection in the operation of the American criminal justice system. His client, Steven Avery, has been convicted of first-degree murder in the death of Teresa Halbach, a crime that Avery is adamant that he not only did not commit but believes he was framed for by the Manitowoc County Sheriff’s Department in Wisconsin. For 10 hours of the engrossing documentary series, numerous procedural and ethical irregularities, suspicious evidence-gathering and testing techniques, and troubling police interrogation and state prosecution practices have been presented, much as they were during Avery’s trial. The minimum threshold for reasonable doubt seems to have been reached, and yet the jury ultimately thrust aside that doubt and convicted Avery.

Making a Murderer considers why but also details the how of the Avery case, interweaving the two with an almost pitiless drumbeat of inescapability. Directed by Laura Ricciardi and Moira Demos after filming in Wisconsin (mostly with Avery’s family and lawyers) for ten years, the series wears its pro-Avery bias on its sleeve, which some observers have seen as detrimental and others have viewed as its strength as sharp-edged advocacy journalism opposing official biases. But the series has risen to the level of a cultural phenomenon because it has crafted Avery’s complex saga into an engrossing, outrage-inspiring narrative entertainment with clearly-drawn heroes and villains and a tragic ending that exposes deep institutional injustices.

Steven Avery, born and raised in Manitowoc County, Wisconsin, belongs to a family of rural salt-of-the-earth white Americans, who are concentrated clan-like around a vast auto salvage yard that acts as their primary source of income (and a resonant symbol of post-capitalist decay) but generally treated as pariahs in the community. Saddled with a low IQ, limited education, and questionable socialization, Avery had predictable brushes with the law in his youth, one of them a spectacularly unwise confrontation with the girlfriend of a sheriff’s deputy that put him in the department’s crosshairs. This history put him under suspicion for the rape of prominent citizen Penny Beerntsen in 1985, a crime for which he was convicted and served 18 years in prison before the real perpetrator’s confession and ironclad DNA evidence led to his exoneration.

This is all summed up in Making a Murderer’s first episode, and the series’ early stages also cover Avery’s response to his wrongful conviction. A state investigation found that the Manitowoc County Sheriff’s Department targeted Avery in a tunnel-visioned and irresponsible manner (he had alibis from something like 20 family members) while ignoring other potential suspects – most importantly serial rapist Gregory Allen, who was eventually implicated by DNA evidence while serving time for a subsequent sexual assault – both during the investigation and after the conviction. But the state declined to mete out any punishment to the sheriff’s office, so Avery sued that department in federal civil court for $36 million. Conveniently for the sheriff’s office, Avery was arrested, charged, tried and convicted for Teresa Halbach’s murder while the civil case was playing out, forcing him to settle the civil case for a lower amount in order to afford the legal fees for his murder defence.

The rest of Making a Murderer documents the state’s case in court against Steven Avery, his defence team’s arguments about the sheriff’s department’s attempt to frame him, his appeals and quest for a new trial, the trial and conviction of his teenaged nephew (and only alibi) Brendan Dassey for aiding in Halbach’s murder (proceeding from an extremely dubious and likely coerced confession), and the reactions of his family and community to the entire saga. On the basis of the evidence presented in the series alone, both at trial and in the build-up to and aftermath of Avery’s conviction, it seems reasonably evident that, at the very least, something is rotten in the county of Manitowoc (and in neighbouring Calumet, too, the county in which Avery was tried and whose law enforcement ostensibly conducted the investigation).

That Hamlet reference may not be errant, since Making a Murderer is presented at least as much as drama than as documentary, shaped as a tangled but ultimately starkly delineated morality play on the subject of American (in)justice. Real people, whatever their unglimpsed nature, assume a set of fixed roles. Strang and fellow defence attorney Jerry Buting are the dogged heroes of the piece: intelligent, rational, decent Midwestern sorts with respectable conservative clothes but highly liberal perspectives on the fraught operations of the criminal justice system. They’re presented as contemporary heirs to that American archetype Atticus Finch, humble men of law toiling thanklessly against injustice, protecting fundamental citizens’ rights in the face of institutions either bureaucratically indifferent to suffering or actively and malevolently encouraging it.

Opposing them is the Calumet County DA Ken Kratz: hefty, mustached, soft-voiced and smug, an exquisitely hateable personification of the banality of evil. He disseminates shocking, sensationalist details of Halbach’s murder in press conferences prior to the trial, seriously compromising the possibility of a fair trial for Avery or for Dassey, and after gaining both convictions is ruined by an equally compromising sexting scandal. Arrayed below these figures are any number of particular characters, from stiff-lipped small-town police to Avery’s sprawling clan, notably his crusty parents, his mercurial ex-fiancee, and Brendan Dassey’s formidable mother. Brendan Dassey is a learning-disabled manchild, caught up in and chewed up by institutions well beyond his ability to comprehend, let alone defend himself against. Avery himself is an odd cipher-like absence at the centre of Making a Murderer. With no on-camera interviews between the filmmakers and their subject, a version of him emerges from prison phone calls and archival video, bewildered and discouraged at being charged with a crime he claims not to have committed by the same police who already put him away unjustly for such a crime. He’s determined to prove his innocence but also dogged by trouble in a manner that he cannot be fully absolved of.

There has been official pushback against Making a Murderer‘s incendiary conclusions about considerable bias and unethical (if not outright illegal) conduct on the part of the sheriff’s office, the district attorney’s office, and even Brendan Dassey’s public defender, Len Kachinsky, who comes across as one of the weaselly, semi-hapless sub-minions of the ringleader of horrifying normality Kratz (think William H. Macy as Jerry Lundegaard in Fargo and you’re 75% of the way there). Kratz, although no longer a DA after his scandal-plagued tenure and resignation in shame, claims copious trial evidence less favourable to Avery is left out of the series, particularly testimony establishing the defendant’s obsessive behaviour towards Teresa Halbach.

This might be true, and, like much of Kratz’s evidence, feels like it might be; Steven Avery’s character (and crime history prior to his wrongful conviction in particular) is a bit too rosy as presented by Ricciardi and Demos. But even at 10 hours, some details must inevitably hit the cutting room floor, and further outrages on the part of the court system were also left out. These include the whopper of a revelation that one of the jurors for Avery’s murder trial, the investigation of which the Manitowoc County Sheriff’s Department was supposed to have stayed away from due to a clear conflict of interest in relation to Avery’s lawsuit against them for his 18 years served in prison for the wrongful rape conviction, was the father of a Manitowoc County Sheriff’s Deputy and himself had logged over 200 hours as a volunteer officer for the department. This fact, absent from Making a Murderer, places the revelation of a juror excused from deliberations that two jury members dead-set on a guilty verdict swayed the rest, who had been leaning towards not guilty at first, in a different light. The devious evil masterminds of the Manitowoc County Sheriff’s Department even had an agent doing their bidding in the jury room to ensure that Avery was sent down.

The prosecution case against Avery had holes in it – reasonable doubt-sized holes, you or I may believe – but the jury ultimately came to the conclusion that they were not enough to bring their collective faith in law enforcement and the courts into question, which is what would have been necessary for an acquittal. The overarching defence theory of a police conspiracy to point the finger directly at Avery that so daunted Strang and Buting is fuzzy at points and always impossible to properly pin down (even if the sheriff’s office had a much clearer motive for setting Avery up than Avery did for murder). It certainly did not help that Avery’s defence team could not present alternate suspects for the murder, which they gestured vaguely towards elsewhere in Avery’s family circle as well as in Halbach’s. The conclusions that may seem obvious to the viewing audience of a documentary with a very particular focus and perspective may not have been so clear in the Calumet County courthouse in 2007, and may have been further obscured by a heated local atmosphere both before and after the proceedings.

Making a Murderer, like Strang in his summary indictment against the arrogant certainty of institutions, looks at the Steven Avery saga and sees a sea of doubt. So expertly made is it that it allows us to see that same sea, and to damn the myopic arbiters of Avery’s fate, police and prosecutors and judges and media and victim’s family and rural Wisconsion rank-and-file, who either cannot glimpse it or simply refuse to. Are the filmmakers and the work they ultimately delivered biased in Avery’s favour? Without a doubt, yes, they are infected with a certainty in the truth of his innocence and pass this infection on to Making a Murderer. But such extreme bias is an act of radical balancing in this case, a redistribution of weight in the face of an arrest, prosecution and conviction with no less formidable a bias against Avery. The series is a muscular response to a perceived injustice, and it is muscular enough to make us perceive it as well.

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