The release last month of “Making a Murderer,” a 10-part documentary from Netflix, capped a year in which popular culture’s portrayal of the criminal justice system seems to have shifted. Out with the old tropes about truth-seeking investigators and tidy resolutions; in with the disquieting, dysfunctional reality of many courtrooms and police stations.
The documentary chronicles the trials of Steven Avery and his nephew Brendan Dassey for the 2005 killing of Teresa Halbach. Its depiction of alleged police corruption and prosecutorial bias has inspired some viewers to quip that they hope they are never arrested in Manitowoc, Wisconsin, the county where the two men were convicted. But what happened to them happens to low-status criminal defendants across the country all the time.
Searing images of law enforcement abuses in Chicago, Cleveland and elsewhere have eroded the public’s trust in police power on the street. At the same time, serialized true-crime programs, such as “Making a Murderer” and the first season of the podcast “Serial,” are bringing the failures of due process into focus: careless police work, flawed forensics, forceful interrogations, unreliable witnesses and the woeful condition of state-funded criminal defense.
It takes hours rather than seconds to appreciate this procedural violence. That hasn’t stopped listeners and viewers. “Serial” was downloaded 75 million times. (Netflix doesn’t release any audience statistics, but “Making a Murderer” has generated widespread discussion in social and traditional media.) Yet after the shows are over, audiences still hunger for narrative resolution. Reddit users have written thousands of posts about “Making a Murderer,” weighing evidence and acting as armchair detectives trying to find the “true” perpetrator. Petitions seeking pardons for Avery and Dassey have gathered 380,000 signatures. A spinoff from the “Serial” podcast, sponsored by the defendant’s lawyers, updates listeners on appellate claims and advocates for a retrial.
No tidy conclusions
Why wouldn’t Americans want a satisfying finale? Our culture is steeped in procedural crime dramas. Hundreds of “Law and Order” episodes concluded with definitive guilty verdicts, punctuated by a signature sound effect. CBS’s hit show “CSI: Crime Scene Investigation” suggested that instant forensics always yielded definitive results.
The desire for closure is understandable, but a tidy conclusion is rarely attainable, and all of the Internet sleuthing and speculating can be distracting. Yes, post-conviction DNA testing and the work of Innocence Projects around the country have exonerated more than 1,700 defendants. Those cases heighten awareness of potential errors and demonstrate that wrongful convictions happen. But Americans shouldn’t expect certainty about innocence. Sometimes the focus on finding new evidence to exonerate distracts from the question of whether the old evidence proved guilt.
Avery, the focus of “Making a Murderer,” had a 1985 sexual assault conviction overturned after forensic proof of his innocence emerged. In the closing line of the documentary, he says, “The truth always comes out sooner or later.” That line feels unfortunately misplaced. We may never know the facts behind the gruesome murder of which Avery was accused. Nor did “Serial” “solve” the 1999 murder case it exhaustively explored.
The lack of resolution may be as valuable a lesson as the evidence of law enforcement misconduct. When I was a federal prosecutor, I had the luxury of working only on carefully screened cases with strong evidence. But fewer than 70,000 federal felonies are prosecuted each year, while roughly 2.5 million felonies proceed through the state courts. Many state cases involve near-simultaneous investigation and prosecution. One rarely finds out “what really happened.”
The prosecutor in Avery’s trial argued in his closing statement that “reasonable doubts are for innocent people.” They are not. And procedural protections like access to defense counsel and freedom from coerced interrogations extend to both the innocent and the guilty. The real contribution of these documentaries is not to ask “whodunit” but to reveal what was done to defendants.
As listeners and viewers consume these stories, they are reminded of the humanity of the individuals involved – and they learn to see the defendants as more than abstractions. That knowledge should lead people to understand that resolution and justice are not the same thing. And whether or not the truth of these crimes ever comes out, shows, podcasts and narrative articles can make the public aware of distortions that occur in the legal process.
The United States’ criminal justice system needs fewer guilt-assuming interrogation tactics, more disclosure of potentially exculpatory information to the defense, expanded oversight units within prosecutors’ offices to investigate potential miscarriages of justice and fuller appellate scrutiny of convictions.
The moment is ripe for reform, culturally and politically. There is even some bipartisan support for legislation to reduce some federal criminal sentences and address the problem of mass incarceration. But unless our empathy generates demand for greater procedural integrity, only the narrative will change while the system stays the same.
The New York Times
Lisa Kern Griffin is a professor at Duke Law school.