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Netflix’s Crime Documentary Raises As Many Questions as It Does Eyebrows 2/29/16  02/29/16 7:50:10 AM Printer Friendly VersionPrinter Friendly Version

Netflix’s Crime Documentary Raises
As Many Questions as It Does Eyebrows

Julien R. Fielding
The Daily Record

Reactions to Netflix’s Making a Murderer are rarely lukewarm. Directed by Laura Ricciardi and Moira Demos over a 10-year period, the 10-part documentary begins with the release of Steven Avery from prison in 2003. Based on eyewitness misidentification testimony, the Wisconsin man had been falsely imprisoned for 18 years for a rape he didn’t commit; he was exonerated by DNA evidence.
The story doesn’t stop there, though. In 2005, while in the middle of a civil suit against Manitowoc County, Manitowoc County District Attorney Denis Vogel, and Sheriff Tom Kocourek for $36 million – $18 million for targeting him, personal hostility and obstruction of justice, and $18 million in punitive damages – Avery was arrested again, for the murder of Teresa Halbach, a 25-year-old photographer who had come to his property to take pictures of a car he had for sale. As the documentary unfolds, audiences meet the players, review the evidence and watch the investigation and subsequent trial of both Steven Avery and his then-16-year-old nephew Brendan Dassey.
Many audience members were so outraged by what they saw that they started online petitions to free Avery. One such petition to President Obama on www.Change.org had 512,761 supporters at the time this story went to press. (They need another 487,239 to reach their goal of one million supporters.) Others have turned to social media outlets, such as Twitter and Facebook to enact change. Both #FreeSteveAvery and #FreeDassey are popular hashtags. Others have set up online fundraisers for the incarcerated duo on GoFundMe.com.
The documentary is controversial, and has generated some backlash, primarily from Ken Kratz, the former Calumet County District Attorney who prosecuted the case and claims to have been “vilified, certainly insulted, and threatened, and things like that.” For the most part though, viewers and critics alike have found it to be gripping and captivating. One critic on Rotten Tomatoes said that a documentary such as this “may end up changing our justice system for the better.”
To get a local perspective, The Daily Record turned to three academics: Christopher Roth from Kasaby Nicholls; Leah C. Georges, assistant professor in the interdisciplinary Ed.D. program in leadership at Creighton University, and Lisa Sample, professor and master’s program chair, Reynolds professor of public affairs and community, at the University of Nebraska at Omaha’s School of Criminology and Criminal Justice.
Roth is a practitioner in criminal and immigration law who is admitted to practice in Nebraska, Iowa and the Federal Courts in both states. He has experience in defending clients at all levels of felonies and misdemeanors, in addition to criminal jury trial experience. When asked his reaction to Making a Murderer, he said that, in his experience, he felt it was accurate in how it shows the “bias against a defendant,” and in how it depicts the media, which can in itself be a kind of court, determining a person’s guilt before he or she ever goes on trial.
“I watched it with my wife, who was shocked,” Roth said. “I see this (kind of thing) every day; however, I’ve never seen anything as bad as what I saw in Making a Murderer.”
What were the most “shocking” things Roth witnessed? At the top of his list: The Brandon Dassey confession. “His lawyer needs to be disbarred,” he said. In the documentary, one watches as police investigators manipulate and coerce the low-IQ’ed teen into giving “details” of a crime, he supposedly participated in with his uncle. “His case was the worst. I was more depressed than angry by what happened to him.”
Second, Avery’s defense team believed that the blood found in the victim’s RAV4 could have come from a DNA kit that had been in police custody, which was discovered to have been disturbed. The FBI tried testing the blood for the existence of EDTA, a chemical used to preserve blood. “The FBI test that was invented for this case. It just shows that if you want to convict someone, you can get a magical test to prove your case.”
Third, during her testimony, Sherry Culhane of the Wisconsin Crime Lab admits that her own DNA was accidentally introduced to the testing process. “She admitted this only because she wanted to soften the blow,” Roth said.
Many other aspects of the case bothered Roth. “I was upset that Avery’s reputation was dragged through the mud through daily press conferences even before the trial started,” he said. “They eroded Avery’s presumption of innocence.”
Roth said that he could commiserate with Avery’s lawyers, Dean Strang and Jerome Buting. “You could tell they were passionate about this,” he said. “I am also passionate. And I have clients who have been found guilty. The ones that stress me out are the ones who aren’t guilty and they get convicted.”
Georges, who holds a B.A. in psychology from Creighton University, a Master’s of Legal Studies degree from the University of Nebraska College of Law, and a Ph.D. in social psychology from the University of Nebraska-Lincoln’s distinguished psychology and law program, is published in academic journals and book chapters in the areas of emotion and jury decision-making, drug and mental health courts, policy reform, and leadership theory and best practices. She also is the president of the Board of Directors of Nebraska Innocence Project and presents about the various causes of wrongful conviction and how to improve the criminal justice system through education and reform.
When asked her reaction to Making a Murderer, she said that it is an important documentary in that it “brought to light the complexity of the causes of wrongful conviction, including eyewitness identification.
“Eyewitness misidentification is the leading contributor of wrongful convictions,” she said. “It was a factor in more than 70 percent of the 337 post-conviction DNA exoneration cases in the U.S., making it the leading contributor of these wrongful convictions; [For instance] Kirk Bloodworth, the first American sentenced to death row, was exonerated by DNA. Five eyewitnesses, who probably talked to each other, identified him with the victim. The human mind is not like a tape recorder, and to recall a memory or event exactly as it occurred is a challenging task.”
Georges has spent the last several years talking with and educating legal and law enforcement communities across Nebraska about eyewitness identification best practices to decrease the likelihood of faulty identification. She is encouraged by much of the good work she has seen toward these efforts, though she notes there is still much work to be done.
“People have to remember this is a documentary not a biography,” she said. “What this series has done, however, is helped to educate the community at large about wrongful convictions and the complexities involved in investigating and subsequently trying a case. As scholars and legal practitioners, we need to do our due diligence to understand and subsequently insist on best practices in eyewitness identification and beyond. This documentary makes us question whether we are doing the best we can in these types of cases.”
Finally, Sample said that, although she thought “the series was well made,” she also believed that it “left out significant information relevant to trial outcomes, thereby misleading audiences … It has come to light that Steven Avery had violent behavior in his past, which is the strongest correlation to violent behavior in the present or future. There was extensive DNA evidence in the case, all of which was not reviewed in the film.
“Also, to prove conspiracy on the part of police, one would have to believe they somehow had access to blood evidence from the victim, which could not be the case since her body was burned. As a criminologist I can tell you that no police department is organized in such a way to be that thorough in framing suspects.”
Sample continued: “I do appreciate the film for several reasons, however: 1) it demonstrates to the public all the details involved in investigating homicide, and how police do not always make the best choices; 2) it demonstrates the need for mental health services for juveniles as it is clear that [Dassey] never clearly understood his rights or the seriousness of the charges, and 3) it demonstrates the value of good legal counsel.  Defense attorneys vigorously represented Steven Avery.
“I found the documentary to be more engaging than actually sitting through a trial in that much of the boring physical evidence was not presented. The information from and about Steve Avery was not well triangulated with other sources.  It downplayed the loss of life that occurred and the role of victims’ families in the sentencing process.  It purposely misled the audience by omitting information from trial.
“The series does, however, highlight that police officers make mistakes, often evidence is mishandled, police territorialism often overwhelms good judgment, and officers are constitutionally allowed to lie and badger suspects and witnesses in investigations.  Overall, any film that introduces a broad audience to how the justice system works, or does not, is a good thing for the public to see.”
Both Georges and Sample mentioned that this series, much like other TV shows, such as Law & Order; Criminal Minds, and CSI, may be entertaining but they give the public unrealistic expectations of the criminal justice system.
“They have a tendency to distort how time-consuming and painstaking investigations can be, how truly boring court is, how the rules of evidence prevent surprises in court, and generally the slow slog to justice,” Sample said.
Making a Murderer is available exclusively on Netflix, a subscriber-only service.

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