"Making a Murderer" showed justice is about more than just a conviction

Photo by Jennifer Whitney

On Dec. 18, 2015, Netflix began streaming Making a Murderer, a 10-part documentary series chronicling the 2007 prosecutions of Steven Avery and Brendan Dassey for the murder of photographer Teresa Halbach in Manitowoc County, Wisconsin. The series' depictions of suspicious police conduct and questionable prosecutorial tactics have had an enormous impact on viewers, and Making a Murderer has become a cultural phenomenon.

Viewers aggressively recommended the series on Facebook, and the subreddit /r/MakingaMurderer trended. Meanwhile, a petition for pardon on change.org — addressed to both President Obama and Wisconsin Gov. Scott Walker — was averaging around 100,000 signatures a week. After following the cases and people involved for nearly 10 years, the filmmakers had captured lighting in a bottle.

But at the end of December and into early January 2016, the conversation began to shift. Articles in popular magazines and websites were talking about Making a Murderer less in the context of criminal (in)justice and more with an eye toward the objectivity of the series and filmmakers themselves.

Commentators, published in everything from Breitbart.com to The New Yorker, were no longer describing what the series portrays but rather what it does not portray, alleging that the filmmakers intentionally excluded facts that make Steven Avery appear guilty. Whether true or not, the underlying assumptions of the articles are consistent: if we can know, or convince ourselves, that Steven Avery is guilty, then the actions portrayed in the series should cause us little concern. Likewise, if Avery actually murdered Teresa Halbach, then the system ultimately worked, irrespective of the process by which the conviction was carried out.

These are certainly the views of the former Calumet County district attorney, Ken Kratz, who told the jury in the Avery trial, “If you buy [Avery’s defense attorney's] argument that they were trying to make sure that the guilty person was found guilty ... [it] shouldn’t matter whether or not that key was planted.” Is Kratz correct? If a police officer arrests a guilty person, whom a prosecutor subsequently convicts, didn’t the system fundamentally work?

The answer is no. The integrity of the criminal justice process — which includes investigation, arrest, conviction, and sentencing — is actually far more important than having guilty people behind bars. Sir William Blackstone, our legal forefather, famously stated, “It is better that ten guilty persons escape than that one innocent suffer.” The rationale behind this view is twofold: (1) an innocent person in jail is proportionately worse than a guilty person free, and (2) the integrity of the process is critical to prevent incarceration of the innocent, even if we must permit a guilty person to go free to preserve that integrity.

Some may be surprised to hear this, but the legal obligation of a prosecutor is not to seek a conviction but rather to see that justice is done. What happens when law enforcement and prosecutors shirk their responsibilities? The innocent suspect’s hopes at freedom are then fully reliant on the integrity of the system to give them a just outcome. And a damaged or devalued system provides a fragile safety net that likely leads to more wrongful convictions.

Contrary to conventional wisdom, everyone is at risk of being wrongfully accused of a crime. Sometimes law enforcement, prosecutors and judges become so committed to convicting someone — anyone — that they unwittingly become parties to grave injustice. Prosecutorial tunnel vision has claimed many casualties in Texas, including the infamous cases of Timothy Cole and Michael Morton, both of whom were falsely convicted of crimes at the hands of an overzealous district attorney.

But there is hope: according to the National Registry of Exonerations, Texas led the country in exonerations in 2015 with 54, including Alfred Brown, who had been sentenced to death. The Texas Forensic Science Commission is also setting the standard for its science-forward reevaluation of widely used, but highly unreliable, forensic techniques.

These advancements, however, are tempered by an “ends justifies the means” ideological undercurrent so prevalent in criticisms of Making a Murderer. It should not be of ultimate concern, to the arm's-length viewer, whether Steven Avery is guilty or innocent. Instead, the concern should focus on the breakdown of the criminal justice process, which the series meticulously portrays. But the critics aren’t interested in that subject, and if we the viewers do not become more interested in that subject, our very liberty is at risk.

When Kratz argued to the Avery jury, “Reasonable doubts are for the innocent,” he missed the point — reasonable doubts can only separate the innocent from the guilty when we honor them in all cases, whether the media says we should or not. Is Steven Avery guilty? I don’t know. But I do know that his conviction came at the end of a long, broken process. A broken clock is right twice a day, but it is wrong much more frequently. 

Brandon Beck

Appellate attorney