The cool new law show last year was Serial. As season two opened, focusing on the case of Army deserter, Bowe Bergdahl, the anticipation was that Serial would again capture the American psyche. Ironically, after the breakout success of season one, I got calls from some very big “interested parties” hoping I could feed them the next Serial, the case where they could spin the innocent, wrongly convicted defendant into their own smash hit. I declined.
Of course, Serial fizzled, another one-hit wonder. I cried no tears over it, even though Ken Womble and I took opposite views of its utility in making Americans more knowledgeable. Ken argued that by providing a vast quantity of information about the criminal justice system, people couldn’t help but benefit from listening to Serial.
My view was that information, without understanding and context, was overrated. People would believe they understood the system, but they would be wrong. Worse, they would believe so strongly that they couldn’t be told otherwise. They would be both ignorant and certain, a toxic combination.
Ken did have one compelling point, however. Serial was the first viral opportunity in a long time that made people think, long and hard, about the system and its flaws.
In our current age of sound bites and 30 second news segments, the fact that this program has convinced millions of people to spend hours and hours sifting through the information of one story is amazing.
It was amazing. At a time when complex problems and issues are reduced to fortune cookie answers and vague platitudes, Serial made people pay attention and think, even if their thoughts might lack the sophistication and understanding that might have given rise to meaningful comprehension of what it all meant.
While sitting at an outdoor table at Café St. Germain, sipping a delicious red table wine and eating country pate on a baguette, I got an email from Daniel Gershburg asking what I thought about “Making A Murder.” I replied with a brief description of my current circumstances, and ended with, “is this something I need to know now“? As I learned upon my return, it was. It was huge, and I had no clue what anyone was talking about.
Not having access to Netflix, I couldn’t watch Making A Murderer. But I couldn’t avoid reading about what others who had watched it had to say. There was the post at Tech Insider explaining how a lawyer for a defendant named Avery created a confession for his own client.
One of the most shocking moments in the documentary is when Len Kachinsky, the newly appointed public defender for 16-year-old Dassey, sends his private investigator Michael O’Kelly to give Dassey a polygraph test as well as to get a written confession.
During this meeting, O’Kelly gives Dassey a form to fill out about his involvement in the crime. When Dassey writes a “confession” proclaiming his innocence, O’Kelly then makes him rewrite his version of events and even goes so far as to make the learning-impaired teenager draw diagrams of the rape and murder, which are later used against him in his trial.
Why and how this happened is unclear, and the confession was, inexplicably, turned over to the prosecution. Avery’s lawyer, Len Kachinsky, explained:
Kachinsky has since spoken out after the documentary about the form.In a phone interview with TMZ, he admitted, “Well, that was just a piece of paper for our internal use. It wasn’t for use at trial.”
“We wanted to be sure we wouldn’t be wasting the police’s time,” he continued. “O’Kelly was a bit of a loose cannon I guess, but I guess the idea was to see if what Dassey was telling us was also what he was telling the police. Sometimes people will tell people different things.”
In the article, other lawyers are quoted to say this doesn’t happen, should never happen. Kirk Obear says, “it’s just shocking.” Ya think? Except it’s worse than shocking; it’s incomprehensibly, inexcusably wrong on every level. This isn’t close to adequately explained by the post.
Now there’s a Vox “explainer” by “culture” writer Alex Abad-Santos and a resident non-lawyer criminal justice writer, German Lopez, explaining the legal inadequacies of “Making A Murderer.” They ultimately conclude:
Instead of framing Making a Murderer as a show about Avery’s innocence, it might be better to look at it as a spotlight on the mistakes and inconsistencies in this man’s two separate experiences with the criminal justice system — and, possibly, the flaws in that system on a national scale. Making a Murderer shows the public just how easy it is to convict people of crimes they didn’t commit.
If this turned out to be the takeaway, it would be disingenuous of me to complain. Indeed, Josh Kendrick turned the tables back on the adoring fans for this very purpose:
What is most interesting about the Making a Murderer phenomenon is the country’s reaction to it. Shock at the overreaching police officers. Outrage at the unfair prosecutors. Frustration at an incompetent defense lawyer. As with most wrongful conviction cases, there is little attention paid to the people who actually convicted Avery: the jurors.
The most frustrating part of a criminal trial is how easily jurors swallow what they are fed by the government. No matter how outlandish the evidence is, or how inconsistent the facts are, jurors usually buy it. They align themselves with the “good guys” and make sure to punish the guilty. Jurors are quick to jump right over obvious logical flaws in a case as long as they land on a conviction. As the prosecutor in Making a Murderer says at one point, “reasonable doubt is for the innocent.”
After watching Making A Murderer, will viewers make wiser jurors? Or should we be satisfied that at least they saw that a guy can get convicted despite a deeply flawed system? Is that good enough?