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PROFspectives: Making A Murderer

News Story

Did you spend your winter break and blizzard binge-watching “Making a Murderer” on Netflix? So did the rest of Pace. Find out what a documentary film professor and a criminal law professor had to say about Steven Avery’s controversial trial captured in the series.

As we welcome back the Pace Community for the start of the spring 2016 semester, the inevitable questions “What did you do over the break?” and “How did you get by during Winter Storm Jonas?” seem to bear the same answer from many here at the University: “I watched Making a Murderer on Netflix.”

**Spoiler alert** The following text contains major spoiler alerts for those who have not yet seen Making a Murderer in its entirety.

The series, a Netflix original documentary, tells the story of Steven Avery, a Manitowoc County, Wisconsin man who was wrongfully convicted of an attempted murder and rape he didn't commit. After 18 years in prison, Avery was exonerated by DNA evidence. Shortly after his release, he was arrested and then tried for another crime—a murder—and sentenced to life in prison. His 17-year-old nephew, Brendan Dassey, was arrested and sentenced to life in prison for the murder as well.

The documentary series has made the rounds on television blogs, major media outlets, and water cooler talk around the nation for its portrayal of the trial, the criminal justice system, and the people and town of Manitowoc County. Many are wondering if Avery and Dassey actually committed the crime, or if they were framed by Manitowoc police. Opportunitas asked two Pace professors—Maria Luskay, EdD, professor and director for the MA in Media and Communication Arts program, and Lissa Griffin, professor of law—to weigh in on the series as it relates to their expertise in documentary filmmaking and US and comparative criminal procedure, respectively.

Lissa Griffin, Professor of Law
Professor Griffin is an expert in US and comparative criminal procedure. She has written extensively on criminal law, wrongful convictions, and comparative criminal procedure issues.

The series is controversial. The documentarians are accused of biased reporting intended to prove the defendants are innocent. But that’s unfair; ultimately, the series demonstrates something true and more important: that despite the guilty verdicts, we really do not know who killed Teresa Halbach, how, or why. The prosecution presented a strong circumstantial case, but the evidence was carefully dissected, and a viewer can readily believe that what little evidence there was had been planted by the police. Moreover, Dassey’s “confession” in which he “guessed” at what the police wanted to hear, and later repeatedly recanted, is utterly uncorroborated by anything the police could find, and appears to be the unreliable product of well-known unsavory police interrogation tactics.

We should broaden the debate beyond guilty or not guilty, because Making a Murderer raises several fundamental questions about the criminal justice system.

First, what is the goal of our system? To yield results that society is willing to accept? To be sure, we hope the adversary system and the use of juries lead to reliable results. But we know that, as the documentary shows, tragic mistakes are made, eyewitnesses are mistaken, and that the most we can ever hope for is uncertainty. Is that enough?

Does the criminal adversary system really produce a fair fight? Avery’s retained lawyers worked incredibly hard, were unstintingly loyal, and were highly effective. Dassey was indigent and was assigned an attorney who, from the beginning, believed and announced that his client was guilty despite Dassey’s protests of innocence, and in fact, handed the prosecution evidence to use against him. After this attorney was removed, new counsel was appointed and did the best he could. But once again, we revisit the age-old maxim that the quality of justice depends on how much money you have.

Did the prosecutors perform their constitutional duty to be “ministers of justice”? Whether one buys the claim that Avery was framed, it’s clear that the prosecutor accepted whatever came from the police without any independent reflection. Even after the court ordered the local police to stay out of the investigation, they stayed deeply involved and produced the only “evidence” of guilt. The prosecutors believed Dassey’s fantastic tale of bloodthirsty sexual assault, even though not a drop of blood or any other forensic evidence could be found to support it. Moreover, disregarding his ethical obligations, the prosecutor repeatedly made highly prejudicial statements to the media revealing extensive inflammatory details about the crime.

The absence of any racial issues—everyone involved is Caucasian—simplifies the legal and policy questions raised by the film. This is an excellent opportunity. But in their place, we see issues of class and culture at play in a small rural community in Middle America, a culture we really can’t penetrate. How do rumor, personal history, kinships, friendships, and resentments impact the quality of justice here?   

Nobody really knows why or how Halbach died. Avery may be innocent, a degenerate, or a predator; Dassey may be no more than an immature, mentally-deficient teenager. They may have killed her, or maybe they did not. The title alone raises the provocative question: did the police “make” a murderer by framing a case against Avery? Or did society “make” a murderer by wrongly imprisoning a young man for 18 years on the basis of a single mistaken identification? One can always fault the messengers, but the series raises important questions.

Maria Luskay, EdD, Professor and Program Director for the MA in Media and Communication Arts
Professor Luskay is a writer, producer, and director with more than 20 years of experience in industrial and documentary film production.

Like many of you, I too binge watched the Netflix original documentary Making a Murderer over the holiday break. Why? The hype, of course. I had to see, firsthand, what the frenzy on social media was all about.

So, what did I think? To begin, the perennial question of just what constitutes the definition of documentary must be pondered. I have been teaching a documentary course at Pace for more than 15 years, and my first objective is teaching students what the documentary format is and, certainly, what it is not. Documentary is not reality television. Documentary is telling a true story. But, like any good filmmaker or journalist, the question of bias and ethics on the part of the writer must be considered.

The documentary today is very different from the films of Frederick Wiseman, one of America’s greatest living documentary filmmakers. Like Wiseman though, Making a Murderer’s filmmakers Laura Ricciardi and Moira Demos embedded themselves with the defense team of Steven Avery to capture the entire process. The controversy and question here lie with the choices that were made in the telling of this story.

The challenge for the documentary filmmaker is to take raw footage that has been filmed with the intention to tell a story, and assemble that story in his or her own way. They do this through the magic of editing. So, what in fact happens to all that raw footage that was not used? Why did they make that editorial decision to include it or not? How do they take the art of storytelling to tell the story in their own way? How are they partial? Non-biased? Real?

Those are the troubling issues I see with Making a Murderer. How did Ricciardi and Demos choose what to tell/show and what not to tell/show? We are shown what the director wants us to see. And certainly what they do not. But let’s go back further than that…even before we fade up. The name of this documentary is “Making” a Murderer—doesn’t that tell us something right there?

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