To Be Accused Is To Be Condemned:

Making of a Murderer: a TV Series Review

by

Howard Adelman

This ten-part series (about ten hours; a distillation from almost 700 hours of videotape) first appeared on Netflix the week before Christmas. Netflix has posted all ten episodes of the series so you can binge watch it. We did so over two nights. This is a must see series. It is absolutely extraordinary! I never saw either Jinx or heard Serial, two crime dramas that preceded Making of a Murderer (MofM), but, not to make too fine a point about it, this series is much more of a courtroom drama about truth and justice rather than the actual commission of a crime. I suggest it is not a crime series as conventionally understood because there is never any exploration of the life of the victim and how a crime was committed, just the presentation of the evidence how two persons were convicted of a crime of rape and murder.

What is really on trial for the two documentalists, Laura Ricciardi and Moira Demos, who collected and videotaped footage over ten years, is the justice system itself. Though there is some genuflecting to the possibility that the accused are actually guilty, almost all the evidence assembled and edited in the documentary point to a justice system that is on trial. This is accomplished by means of videotaping, acquiring actual videotapes of courtroom scenes and of interrogation sessions, editing and producing an outstanding piece of work. DO NOT watch it over ten weeks. Your stomach cannot endure such pain. Prepare to binge over two or three nights. It is more than worth it.

But first let me confess a bias. I begin, not with the series, but with an incident in the life of my family. The day after one Halloween when one of my sons was fourteen, he was arrested, handcuffed, taken to a police station for interrogation all night and then charged the next day with assault and robbery. We got him out on bail. He was accused of assaulting a boy his own age and stealing his candy.

My son knew the accuser. They had been together in grade school and had a fight about two years earlier. They had not been in contact for the last two years. The boy identified my son as the one who assaulted him. Though the description fit how my son looked two years earlier when he had been much shorter, the description of his height and haircut in no way resembled my son of the night of the alleged assault. But we only had access to that material much later in the proceedings of discovery. Further, my son had been wearing a costume that evening that did not resemble in any way the costume described by the accuser. Finally, my son had five witnesses, boys he was with who could and would testify that my son was nine blocks from the location of the alleged offence. But the police laid the charges without attending to the contradictions between the description of the alleged assailant and my son, without interviewing the boys who could testify that my son was nowhere near the scene of the alleged attack, and without even asking to see the costume my son had worn on Halloween night.

Several weeks later, the accuser was confronted by another friend of my son and the accuser confessed to him that he did not really know whether it was my son who assaulted him but he would not go to the police to tell that lest he get in trouble. Ten months later, four hearings later, and $10,000 in lawyer’s fees later, just before going to trial, the prosecution decided to withdraw the charges. There was never an apology for the false arrest. There was never an explanation of why the police charged my son when the description bore no resemblance to my son on the evening of the alleged assault. When we discussed with the defence attorney we had hired whether we should take the police to court for false arrest, we were advised to just forget it. Otherwise, we would bring our family into the headlights of the police and what could or possibly might follow was unpredictable.

What was lost that night and the following year by the accusation was not my son’s reputation. No one we knew gave any credence to the charges even before we ever heard the description of the alleged assailant given by the accuser to the police that never came close to matching that of my son. The casualties of those events were the psychological effect the whole episode had on my son and our whole family. Much more serious, we lost trust in the professionalism of either the police and, to a small degree, the court system. And, in contrast to what happens in this documentary, the charges against my son were dropped.

What happens to you if you spend eighteen years in prison until evidence finally emerges that pointed to another individual and completely exonerates you? What is worse, what happens when you launch a lawsuit against the police (in Wisconsin, it was the office of the sheriff) and the county for false arrest and imprisonment for $36 million? What happens when, three days after the initial depositions are heard in the suit, the very person who was exonerated, the very person who brought forth the suit, is arrested again and this time charged not only with rape but also with murder?

It is the initial exoneration and then the subsequent charges and court cases that are put in the eye of the camera. In this documentary, except when reporters are asking questions of the attorneys from both sides, the news reporters with their video-cameras are not treated very sympathetically much of the time. They are often portrayed as rude, insensitive and intrusive. In contrast, the filmmakers are of a totally different breed. In this documentary, the video is never staged. It never seems truncated to the size of a sound bite. The filmmakers never intrude. Their perspective comes across clearly and unequivocally through the editing.

Is the documentary biased? As structured, it reveals a police investigatory process in Manitowoc County in Wisconsin that is inadequate and incompetent. It reveals a legal system dedicated to getting a conviction and neither truth nor justice. It reveals a class system in which the good burghers of the town coalesce and effectively try, not just one person, or one person and his nephew, but a whole family from the other side of the tracks who speak and have a very inadequate comprehension of the English language. “They said what one the defendants said was inconsistent. What does that mean?” the son asks his mother.” “I dunno,” she replies.

The average viewer will become enraged watching the documentary. It is hard to imagine obtaining a conviction on the basis of such flimsy and very flawed evidence. It is hard to understand, not intellectually, but in reality, how the judge could have made many of the rulings that he did. It is hard to imagine the state-provided public defence attorney and an investigator who are so deeply in collusion, not necessarily overtly, with s determination to convict the accused rather than provide the best defence possible. However, it is not hard to imagine a system where the presumption of innocence is so easily discarded like the wrecked automobiles in the Avery Auto Body yard that plays such a prominent part in the documentary. Most of all, it is hard to understand why, after convicting someone for what he did not do and then exonerating him, trying him for another crime and then sending him back to prison without arousing significant suspicion about a miscarriage of justice in the second trial by the legislative authorities and those in charge of the system of justice.

In the court of public opinion, the whole system of justice in Wisconsin is put on trial. That system does not have a defence attorney. That system is not given the opportunity to examine and rebut the overwhelming evidence, mostly coming out of the mouths of those purportedly dedicated to defending the system as much if not more than prosecuting criminals. For it is their own words, the words of those in charge of the system itself, that indict that system. So in this trial by public opinion as viewed through the eyes of the filmmakers, we could be watching a total distortion, an exoneration through the process of film selection and editing. But according to the filmmakers, those who seemed to fail the system so badly, or, perhaps, and much more seriously, to serve a questionable system so well, were invited for interviews but declined.

There is a distinct possibility that the representatives of law enforcement and of the formal court system have been subjected to an unfair trial in the realm of wider public opinion. However, given the exposure to a fraction of what actually occurred in the investigation and the court case, the members of the sheriff’s office, the members of the district attorney’s office, especially the district attorney himself, in spite of their cool and collected presentations, or, perhaps because of them, come across as guilty as hell, guilty of incompetence, unfairness, tunnel vision and, one suspects, possibly much more.

The heroes are the different members of the subsequent defence teams, not because they win in the courtroom, but because of the way they conduct themselves. This is documentary, not a docudrama. I have never seen anything like it before as we watch everyone age over the ten years. Characters disappear from the narrative, but one understands taking flight from a system where there are so few real defences.

Over the holidays, we were invited to the house of a friend. There was a man at the table where I was having soup that was opining on how the Syrian refugees would arrive and kill Canadians, on how all Muslims cannot be trusted. Venom and hatred spewed forth from this man. When asked questions, he offered no evidence for what he said. He knew. Donald Trump was his hero. Because Trump pointed out what was true. Refugees were not his only target. Climate change exponents were accused of being a total fraud perpetrated because scientists were only interested in padding their own pockets. A medical doctor seemed to agree with this opinionated, ignorant and very rude man.

I left the event with a horrible taste in my mouth. Because the documentary we were watching was not just about the specifics of one case. The documentary seemed to be about how those presumably in charge of fairness and reasonable detachment, of justice and truth, have been part of a process now dedicated to the denial of truth and the subversion of justice. The infection of the supremacy of dogmatic conviction over impartiality, of intolerance over compassion, is much more widespread than suggested by the documentary. Otherwise, how does one explain Donald Trump becoming the leading contender of the Republican Party?

I fear we are in an era somehow much worse than the McCarthy period. I fear we are in an era where educated people, where supposedly trained professionals, not only abuse the oaths they were sworn to uphold, but do so with a righteousness and a hypocritical mien that belies who they are. In the documentary, just watch the statements of the very clean cut brother of the victim who was horribly killed and her body mutilated. He absolutely trusts the system. He absolutely trusts the prosecution. He absolutely trusts the officers in the sheriff’s department.

If this film has significantly distorted what happened – and we are bound to hear much more on this – then the filmmakers should be charged with a hate crime, for it is hard not to end up totally disgusted and upset with the upright burghers of Manitowoc County Wisconsin, with the establishment in charge of the police work, with the courts, with the purported system of justice in this part of the United States, with the way so-called “white trash” are treated in a way that you believed was totally unjustly reserved for parts of the Black community in some areas of the United States.

The undisputed facts are that:

• Steve Avery was charged with the crime of rape and served eighteen years in prison for a crime which he clearly and unequivocally did not commit, but from the evidence of some people in the justice system, they were unconvinced that they had the wrong man even though he was totally exonerated
• Teresa Halbach who was supposedly brutally raped but without doubt murdered and her body burned, but was it really burned twenty feet from Steve Avery’s bedroom or did that occur elsewhere and the bone fragments transported to the fire pit?
• Teresa Halbach’s car was found on the Avery lot, not crushed in the autocrusher machine, but intact behind some branches that did more to draw suspicion to the car than hide it
• Brendan Dassey, Steve Avery’s nephew, had an IQ of 69, a mental age of a fourth year grade school pupil when he was in high school, and was not initially assigned an attorney dedicated to providing the best defence he could
• Barb Tadych, Stephen Avery’s sister, who for a short period turns against her brother, but proves in the end to be a steadfast good and dedicated mother and sister
• Allan and Delores Avery, Steve Avery’s long-suffering parents and the grandparents of Brendan Dassey, who are always steadfast, but whose lives are ruined by the whole process

This amazing documentary is a paean to criminal defence attorneys the world over, except for Len Kachinsky who comes across as an absolute sleaze ball with a supercilious and totally inappropriate laugh. Dean Strang and Jerry Buting, the two lawyers for Steve Avery, are presented as modest and highly professional heroes. So are the post-conviction lawyers. But the hero of the whole documentary is Steve Avery himself, the Job of the story, not an upright man who has suffered when “he di’n do nothin,” but just a young man with poor judgement and a more mature man able to keep his spirits up through a whole ordeal that would break most of us.

Other than Len Kachinsky, the biggest villain is Ken Kratz, the special prosecutor and district attorney for Calumet County, Wisconsin, who displaces Denis Vogel the original Manitowoc County District Attorney who prosecuted Steve Avery in the original miscarriage of justice. The prosecutors are followed closely by Judge Patrick Willis who was the trial judge in both the Steve Avery and Brendan Dassey trials. Perhaps, in the lineup of villains, the judge stood behind James Lenk and Andrew Colborn, respectively a Lieutenant and Sergeant with the Manitowoc County Sheriff’s Department, Tom Fassbinder, an investigator with the Wisconsin Division of Criminal Investigation, and Mark Wiegart, a Sergeant with the Calumet County’s Sheriff’s Department. The latter two were perhaps only doing well what they were trained to do, but the documentary raises very serious questions about that training, for that form of education perhaps serves to obtain a conviction, but leaves little room for considerations of fairness, justice and a respect for truth and the importance of attempting to falsify one’s own beliefs if one is truly following the protocols of establishing evidence in either ordinary life or in science.

It is hard to see how the Manitowoc legal system will be able to recover from the indictment in this documentary. We will have to watch for the counter-attack to determine the fairness and truth-value of the documentary itself.