Originally appeared in The Daily by Brendan Gerrity
They could not agree on whether or not he was guilty, but they could say one thing unanimously: There was something wrong.
Thursday afternoon, the Law, Societies, and Justice (LSJ) Program hosted a panel on the documentary “Making a Murderer,” which debuted on Netflix in December.
Released in 10 hour-long episodes, the documentary was produced over the course of 10 years. It follows the story of Steven Avery, a Wisconsin man who was falsely convicted of rape and spent 18 years in prison before his exoneration.
In 2005, while documentarians were working on a story about his wrongful conviction and legal battles for compensation, he was again charged and convicted, this time for a local murder-rape. Brendan Dassey, Avery’s nephew, was later convicted of the same crime.
Following its release, the documentary quickly entered the public consciousness and its subject case gained a strong social media following overwhelmingly in support of Avery’s claims to innocence.
A change.org petition, seeking a pardon for Avery from either President Obama or Wisconsin Gov. Scott Walker, garnered over half a million signatures and elicited a response from both politicians. Obama declined, citing his lack of jurisdiction in the state legal system, while Walker reiterated his blanket refusal to issue any pardons as governor.
Perhaps because of the strong social media participation it engendered, the show has become fodder for broader arguments on the veracity of the legal system and the role of criminal justice in society.
“The show brings up questions about the criminal justice system and also about the making of the series,” LSJ program director Steve herbert said.
Since its release, issues with the narrative of the documentary series have been raised, including the exclusion of evidence critical to the investigation, the misrepresentation of other evidence, and the bias of the producers.
The integrity of both the documentarians and the legal system they attack have been questioned, adding depth and ambiguity to what was initially interpreted as a very clear miscarriage of justice.
“It’s not terribly relevant if we think Brendan and Steven did what they are accused of,” said Christy Keating, King County deputy prosecuting attorney. “This is really about the importance of humility and the self-awareness as we go forward in investigation, especially for the police officers and prosecutors.”
Keating blamed what she considers an invalid conviction on the confirmation bias of the investigating officers and the prosecuting attorney. She was particularly critical of the prosecuting attorney’s comments to the media.
“The reason they did that was not necessarily a malicious attempt to frame him, I see it as an attempt for them to confirm that he was guilty — they suspected it, so they made it happen,” she said. “Him engaging with the media appears to be him confirming with them what he believed to be true.”
Keating described the prosecutor’s actions as motivated by “hubris, not humility,” a dangerous style for a powerful public official.
“Unwillingness to acknowledge biases’ existence can cause a downward spiral in the justice system, [and] we really see that in ‘Making a Murderer,’” Keating said. “It’s pretty clear that some shortcuts were taken.”
Though Keating considers Avery guilty of the crime, in her opinion, the weakness of the case and the missteps by the prosecutor means the case does not fulfill her standards for a conviction in court.
Ultimately, Keating advises against rushing to judgement in the case of the show.
“The case was seven hours in the documentary, but a lot more went on over the course of that six-week trial,” she said.
Jennifer McIntyre, an attorney and assistant director of the Snohomish County Public Defender Association, often finds herself at odds with prosecutors like Keating, and the panel was no different.
“There are many prosecutors who are good, but many of them just have an attitude of ‘he did it, let the jury decide,’” McIntyre said. “But the reality is however much money you have, you don’t have the money and power of the state. [The prosecutor] has the respect of the jury, which the accused doesn’t, [and] almost limitless resources, the results of which you can see in the show.”
Regardless of Avery’s factual involvement, McIntyre holds the prosecutor guilty of pushing the case despite its weak evidence. She also voiced a sentiment universally agreed on by the panel: Prosecutions airing their case on the local news biased the jury against Avery.
“It’s really hard for people to put away their narratives,” she said.
Alex Stonehill, UW professor and editor-in-chief of The Seattle Globalist, sat on the panel to address the journalistic perspective of the documentary and share his own experience making a documentary on what he sees as a miscarriage of justice.
“In the process of making a documentary, you get invested,” Stonehill said. “One of the things you have to do to make a series as involved as this: You have to gain trust and gain the family’s trust. It’s really hard to do that and not have a strong connection to the subject.”
Beyond a simple time commitment, documentarians become emotionally attached.
“You have to be, or at least appear to be, sympathetic to the subject to gain access like you saw,” Stonehill said.
Furthermore, the documentary’s nature as a narrative affects how viewers interpret the facts.
“It’s just naturally very compelling and our instinct is to be on Avery’s side because he’s the main character,” Stonehill said. “The thing that keeps us tuning in episode after episode is the hope that he’ll be vindicated.”
Journalistic ethics also come in play, Stonehill pointed out.
“It’s an interesting intersection between journalism — which has a very clear code that we have to present all the evidence — and documentary filmmaking, which is less clear in its obligations and has to be interesting to compete with all the films you see on Netflix,” he said.
Adam Long, a civil deputy prosecuting attorney at the Island County Prosecuting Attorney’s Office, saw the depiction of a gross miscarriage of justice as a strength of the documentary format — an ability to craft a narrative for the audience that would otherwise be incomplete.
“Before trial, you may have this table of really good evidence, but not all of that is not going to make it to the courtroom,” Long said.
In contrast, Stonehill sees it as a weakness as well.
“This is one of those times we see why we shouldn’t take this sort of this case out of the courtroom, but at the same time we want these portrayals to question the system for its weaknesses,” he said.
Ultimately, that is what the panel agreed on: “Making a Murderer” makes a strong case for discussion.
Reach reporter Brendan Gerrity at email@example.com. Twitter: @brerrity