“Making A Murderer”: Any Love Is Good Love?

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.

confession

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?

19 comments on ““Making A Murderer”: Any Love Is Good Love?

  1. John Barleycorn

    Have you watched this rather  abbreviated documentary yet or not?

    Unfortunately, or not, it is like one of those new LED flashlights which consists of eight or twelve beams of light which merge to create an as of yet not commercially available result.

    People could give a shit less about the simple mechanics of it, but they are definitely “impressed” with the “light” or so it seems.

    So impressed, in fact, it seems as though the new flashlight makes their old flashlight seemingly as obsolete as a candle in the darkness.

    Simple really. Just like justice.

    Don’t let the oppertunity fade away…

    P.S. There’s always the bench trial option right?

    https://youtu.be/wXbnHFJfzUU

  2. JBD

    “After watching Making A Murderer, will viewers make wiser jurors?”

    Who knows, but your friendly local prosecutors are adding a question to their voir dire outlines.

    1. SHG Post author

      They did the same to counter the “CSI Effect,” which turned out to be another tempest in a teapot. I can’t blame them for being concerned, but the reality is that jurors still want to believe the prosecution no matter what.

  3. Mark

    I watched it.

    The most compelling evidence for government malfeasance was when they went to check the blood left over from Steven Avery’s first trial and found the evidence seal had been broken and a hypodermic-sized needle hole was in the top of the vial. The FBI cooked a up a test to claim there was no stabilizer in the blood found in accused blood which was found in the victim’s car. The fact that the accused had done 18 years for a crime he didn’t commit also caused some prejudice in the jury.

    Both Making a Murderer and Serial were compelling drama, but I know enough about what I don’t know to say that neither of these programs was very insightful about the law. True crime shows have been around long enough to follow a certain pattern: crime, investigation, surprising accusation, did he/didn’t he, verdict. Evidence is considered back and forth. They always leave evidence and out to make the story more suspenseful. The directors, for example, do their best not to show the accused in jail. Serial and Making a Murderer followed the same pattern, but on a more sophisticated, more drawn out level. The actual specifics of the law (what I know I don’t know) don’t really show up much. It’s all at the Law and Order level.

    1. SHG Post author

      Your first paragraph is worthless, and it’s a shame you included it. Who cares what you found compelling?

      Your second paragraph, on the other hand, addresses the issue raised in the post, where your experience watching the show as a non-lawyer contributes to a better understanding of the issue. If only you had left the first paragraph out.

  4. Pingback: Making A Murderer, A Response To Josh Kendrick

  5. paul

    What I like best about this is many people watch it and think there is a high probability that Avery actually did it, yet recognize the problems with the conviction. Its easy when the wrongly convicted is squeaky clean (or a nonviolent first time drug offender ). If it makes people recognize that even potentially guilty monsters deserve due process then its a step forward for many lay people.

    If it makes jurors question the govrrnment more too… great. But you already covered the odds of that.

    1. SHG Post author

      Confirmation bias is a dangerous thing. Since we know what we’re watching, we assume everyone else takes away the same lesson. But then, is that really what others see, or do they only see one sui generis case (with info they would never get on trial), and take away nothing that would apply to any other case? Do they take away that they now “get” it, when they get nothing? Does this make it harder, if not impossible, to persuade them when they expect “making a murderer” and instead get trial evidence? And the questions go on.

      Is it better than nothing? Maybe. But maybe not. We can’t assume.

  6. steve magas

    Wiser jurors? Good Love? Better than Nothing? …eh… who cares – it’s good TV, nothing more – it’s a far more realistic portrayal of what lawyers do and how the system “works,” or not, than LA Law or Boston Legal anyway – a show that illustrates the boring tedious gritty nature of real trial work in a “big” case, as well as the risk…

  7. BJJones

    Are you sadz cause no one wants you to podcast, do a documentary or give a flying fuck about anything your boring fat ass and your cadre of ass kissers care about?

    Do you need a tummy rub?

  8. John Neff

    “They would be both ignorant and certain, a toxic combination.” I can understand why they would be ignorant because the misinformation glut. But why are they so certain?

    1. SHG Post author

      Having worked hard enough (by watching TV for ten hours) to gain what appears to the outsider to be a little information, and they think they now possess expertise. And Dunning-Kruger.

      1. John

        I’ve been talking up D-K and the Peter principle for years. Glad to see you’ve aware of the former. This part of the D-K story always makes me laugh: “The Dunning-Kruger study was inspired by the case of McArthur Wheeler, a man who robbed two banks after covering his face with lemon juice in the mistaken belief that, because lemon juice is usable as invisible ink, it would prevent his face from being recorded on surveillance cameras.”

        We’re truly a stupid species (I include myself firmly in this camp). There has to be some other principle at play that holds it all (barely) together – the “success in spite of yourself” or “stumbling backwards across the finish line” factor. Otherwise, we’d all still be stuck in the opening scenes of 2001 (chimp + bone + music = hilarity).

        Sidetracking conversation, sorry. On target – the “Making A Murderer” show (which my wife loves) is just making me feel even more like I’m completely over my head as a layperson trying to understand any aspect of the law as it is executed by any of the three branches in practice. I think to sit on a jury and be effective (or just to have a considered opinion), I would need about 2 years of pre-law training just to understand the fundamentals.

        Sorry, tired; rambling.

  9. Laches

    Regular reader but only very occasional commenter here – excellent stuff as always.

    I don’t know about the overall effect of these series on jurors, but I thought Making a Murderer did a good job showing the point of view of the defense attorneys, the conversations with them were the most effective part of the series.

    Maybe that won’t make any real difference, and there is the danger you mentioned that people will now think they are experts in criminal defense after watching a documentary, but it was at least a nice change from the usual ridiculous “prosecutors = heroes who bring villains to justice; defense attorneys = people who try to get villains off on technicalities” narrative that folks are fed.

  10. Patrick Maupin

    Of course, Serial fizzled, another one-hit wonder.

    Well, it wouldn’t/couldn’t have any sequels. There’s You never even called me by my name, the perfect Country and Western song, and then there’s Serial, the prescient perfect California 70’s comedy.

    The former’s got “mama, trains, trucks, prison, gettin’ drunk…” and the latter’s got Martin Mull, Tuesday Weld, Sally Kellerman, Christopher Lee, Tommy Smothers, et al, plus the gay motorcycle gang, the religious cult, the orgy, the bisexual dog groomer and gay hairdresser, and more “consciousness-raising” than Carter’s got little pills.

    How could there possibly be a sequel to such perfection? It’s practically a road map of how we got here.

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