Just as Netflix’s Making a Murderer has solidified the trend of massively popular, serialized true crime, it’s also proven that the backlash to said stories is inevitable. With Serial, there were The Intercept’s interviews with witness Jay Wilds and prosecutor Kevin Urick; with The Jinx, there were concerns over filmmaker Andrew Jarecki’s presentation of the Durst case’s timeline. And now, almost three weeks after their ten-part documentary’s release, Making a Murderer co-creators Moira Demos and Laura Ricciardi find themselves at the center of a now-familiar debate.
Following the initial outpouring of outrage in reviews and on social media, including multiple popular, if misguided, petitions asking President Obama to pardon exonerated rapist turned convicted murderer Steven Avery and his nephew Brendan Dassey, the dissenters to Demos and Ricciardi’s basic narrative — that Avery, a man at both a social and economic disadvantage in the small, tightly knit community of Manitowoc County, was framed by the Sheriff’s Department, then faced an unfair trial — have begun to emerge.
Predictably, prosecutor Ken Kratz, who declined to speak to Demos and Ricciardi for the series, has come forward to present his side of the story. In a New York Times article published yesterday, Kratz claims “the jury in Mr. Avery’s trial considered evidence either left out or glossed over by the filmmakers,” including “DNA from Mr. Avery’s sweat found on a latch under the hood of Ms. Halbach’s Toyota RAV4” and “a bullet with Ms. Halbach’s DNA on it found in Mr. Avery’s garage [that] was matched to a rifle that hung over Mr. Avery’s bed.” Kratz does concede, however, that allowing the Sheriff’s Department Avery was suing at the time to participate in the investigation of photographer Teresa Halbach’s murder was a mistake, as was making a public spectacle of Dassey’s confession only to not use Dassey as a witness for the prosecution, effectively poisoning the jury pool without giving Avery’s defense a chance to demonstrate the confession’s questionable validity in the courtroom.
Meanwhile, Dustin Rowles of Pajiba has compiled a list of evidence against Avery and Dassey that was excluded from Making a Murderer. This includes details of Avery’s prior history with Halbach, Avery’s purchase of cuffs and leg irons of the kind Dassey describes in his confession in the weeks prior to Halbach’s disappearance, and the discovery of Halbach’s camera and PalmPilot in Avery’s burn barrel. (That last detail is courtesy of Angenette Levy, the local reporter whose obvious skepticism made her a popular avatar for scandalized viewers over the course of the series.)
The Making a Murderer subreddit, of course, is the perfect place to watch the resulting “Steven Avery did it after all!”/ “No he didn’t!” opinion wars to play out in real time. And then there’s the anecdotal, but somehow more troubling, example of my own social networks, where I’ve seen friends and acquaintances use damning facts like Avery’s animal cruelty as a teenager to conclude he killed Teresa Halbach after all.
Here’s the problem: It doesn’t matter if Steven Avery is actually guilty — that has nothing to do with Demos and Ricciardi’s larger points about the criminal justice system, or even the more immediate question of whether Steven Avery should currently be serving life in prison.
As Avery’s defense lawyers, the unofficial heroes of Making a Murderer, point out during the trial, the prosecution should always be “swimming upstream,” thanks to the presumption of innocence all defendants theoretically enjoy. It was on the Sheriff’s Department and the District Attorney’s office to prove Avery’s guilt, and if they failed to do so — or, far worse, did so through illegal and unethical means — then they haven’t earned a conviction.
Throughout Making a Murderer, both Avery’s defense and the series itself present a convincing argument for significant misconduct during the investigation of Halbach’s murder. Members of the Sheriff’s Department, who weren’t supposed to be handling the case in the first place, were apparently allowed unsupervised access to the Avery property. Halbach’s vehicle may have been in Sergeant Andrew Colburn’s custody days before it was supposedly discovered. A previously obtained sample of Avery’s blood showed signs of tampering. A key to Halbach’s car found in plain view, though not during several previous searches, contained DNA from Avery but none from Halbach, the car’s longtime owner. And Dassey’s confession may well have been coerced out of a mentally incapacitated minor.
If any falsified evidence was used to push the jury over the threshold of reasonable doubt, then the resulting conviction was wrongfully obtained. That’s true whether or not other evidence holds up. It’s even true whether or not Avery actually committed the crime for which he stood trial.
As a casual viewer, it should be obvious that I’m no more qualified to declare Avery’s innocence, or even Manitowoc County’s wrongdoing, than others are to declare his guilt. But the question of whether Avery murdered Teresa Halbach seems to fundamentally miss the point of a tremendous and tragic work of documentary filmmaking. The terrifying possibility Making a Murderer presents is not that an innocent man is in jail, though that may well be the case. It’s that a man is in jail because a system with power over him decided he should be. And once that decision was made, there was nothing Avery or his family could do.
Without question, what happened to Teresa Halbach was horrifying. Without question, Halbach and her family deserve justice. But the entire premise behind the presumption of innocence is that, on balance, a society that punishes someone without sufficient proof is worse than a society that lets a murderer, let alone an innocent man, go free. So while the idea of a killer on the loose is scary, the idea of a system that can rob people of their freedom whenever and wherever it wants — that cases like these don’t just happen in Manitowoc County, and don’t just happen to Steven Avery — is scarier still. That’s what we ought to be obsessing over.