Mimesis Law
23 July 2019

“Making A Murderer” Requires Making A Juror

Jan. 8, 2016 (Mimesis Law) — The Netflix documentary, Making a Murderer, has captured the nation’s attention and turned it  to wrongful convictions. Most people simply can’t grasp the possibility of the police arresting the wrong person, the prosecutor prosecuting the wrong person, and a jury convicting the wrong person. Never mind numerous news reports of innocent people being convicted who falsely confessed, were misidentified by eyewitnesses, or were put away by junk “scientific” evidence.

Pop culture comes to the rescue and makes the point all these documented wrongful convictions couldn’t. Making a Murderer is one of the hottest shows around. The documentary follows a Wisconsin criminal case and is highly entertaining.

I won’t ruin the story with spoilers, but here are the basic facts. Steven Avery was arrested for rape and convicted in 1985. After spending 18 years in prison, DNA evidence exonerated him and he was released. At worst, the cops framed him. At best, they ignored any evidence that didn’t point to him. Either way, this was a bad case and a bad conviction. The misconduct made him a poster boy for the wrongful conviction movement.

The story didn’t end happily. A few years after his release, and during his lawsuit against the police who screwed up his first case, Avery was accused of murdering a young lady named Teresa Halbach. He was convicted at trial and is now serving a life sentence. Making a Murderer was filmed as the second case developed. Avery went from a victim to a rogue. After the attention his case gained from the show, Avery was back to being cast as a victim.

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.”

Is this blind adherence to the “law and order” side of the justice system changing? Maybe. And if it’s not, it should be. Making a Murderer gives us a nice little ten-hour primer on exactly what we have created when it comes to crime and punishment. Because make no mistake, we created it. And by “we,” I mean the jurors who have repeatedly refused to hold the prosecution to its burden of proof. Every time prosecutors get a pass on a case and a person gets convicted, the system ends up with a Steven Avery. There is no question he was innocent of his first conviction. There is a lot of debate about the second one. But it is pretty clear the case that led to his current life sentence is full of doubts. And those doubts are what drives people crazy about the show.

A big part of the case against Avery is his nephew’s confession to the crime. Brendan Dassey, a 16-year-old who seems a little slow, claimed he was involved in the crime and points to Avery as the mastermind. The confession is borderline nonsense. It’s full of inconsistencies and clearly suggested by the officers taking it. You can actually see how it develops, despite the unlikelihood it has any validity. How could an innocent person ever confess to a horrible crime? Watch the show. The answer unfolds right in front of you.

DNA. This is the gold standard of evidence. For every exoneration, it convicts countless people. It can’t be wrong. If DNA says you were there, well, you must have been there. But it can be planted. And if you don’t understand how, Making a Murderer will show you.

Police who make evidence fit their beliefs are a big part of most wrongful convictions. It’s so obvious in this show that it’s uncomfortable to watch at times. Testimony reflected police playing games with the evidence. They had made up their mind Avery was guilty before they were even sure what the crime was.

All of this evidence had holes poked in it. The weaknesses were put on display by Avery’s defense team. Law enforcement was clearly trying to make sure Avery was convicted, as opposed to making sure the perpetrator was found. At the end of the day, why didn’t the jury protect Avery?

The answer is difficult. For all of the causes of wrongful convictions, we forget that a jury ultimately stamped the ticket to jail. Sometimes they didn’t have all of the information. Sometimes bad evidence was put in front of them. But sometimes they just err to the side of caution, which means putting away the guy on trial.

Most people simply don’t have the guts required to make our criminal justice system something more than a giant grinder for poor people with terrible fortune. In your living room it’s no problem directing outrage at the little screen in the corner. On Facebook and Twitter, it’s pretty easy to post your disappointment at the system.

It’s a little harder to sit in a courtroom and tell the great and powerful government it is wrong. Looking at a crying victim and sending them away without a pound of flesh is difficult. Normal people don’t want to risk sending a criminal back on the streets, even while doubting he is actually a criminal.

Mark Twain said, “it ain’t what you don’t know that gets you in trouble… [i]t’s what you know for sure that just ain’t so.” For a long time, people have known for sure that the police get their man and the prosecutors finish him off. Jurors are just there to confirm what we all know; if someone gets arrested, they must have done something. But that ain’t so and it’s causing problems.

Maybe a popular show will do what defense lawyers haven’t been able to. Maybe a clever documentary will convince people of a prosecution’s fallibility where hundreds of news reports couldn’t.

Hopefully all of these people chattering about Steven Avery’s unfair trial won’t forget all of this when they get called to serve at the next trial. If they start to realize those doubts in the back of their heads have both real causes and real consequences and shouldn’t be ignored, the justice system might end up with a little more justice.

9 Comments on this post.

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  • Burgers Allday
    8 January 2016 at 9:47 am - Reply

    wow. May need to re-subscribe to Netflix.

    anyone watched the Adam Sandler movie on there?

    • Eva
      8 January 2016 at 3:53 pm - Reply

      So how come nobody is picking on this guy for going off subject?……

      • Eva
        8 January 2016 at 3:54 pm - Reply

        Pardon me…

        Person not guy…..

        • shg
          8 January 2016 at 4:07 pm - Reply

          He’s not a person. He’s a roadside sign. Can’t expect too much of a roadside sign.

  • Eva
    8 January 2016 at 3:48 pm - Reply

    If you want an informed public (potential jurors) what this site has has to offer needs to be broadcast in some kind of documentary style series on that streaming media Netflix or other type televised broadcast systems.
    Hell of a lot more interesting and entertaining than most of what I’ve seen.

  • Cornflake S. Pecially
    9 January 2016 at 12:04 am - Reply

     Len Kachinsky
     Len Kachinsky
     Len Kachinsky

    I don’t think I could repeat that name too many  times, and there are certainly  more than three Len Kachinsky “types”  that inhabit the CDL universe.

    Fault Line readers should definately watch this series and then lobby the writers at Fault Lines to pick critical actions and junctures in this series apart one attorney at a time as well as the judge who presided over the trials and also the appeals.

    I don’t think you could go wrong leading off with CDL Len Kachinsky, followed by Ken Kratz the prosecutor, then  Manitowoc County Circuit Court Judge Patrick Willis, and then just for sport some more of why Len Kachinsky is still a CDL, and then you can move on to the other attorneys and their actions and strategies throughout.

    P.S. Countless legal blawgs continue to express endless disapointment about how “dumb” the general public is when it comes to criminal law (as it goes down in the courtroom) and how difficult it is to reach them in this format, not to mention how critical it is not to make people any stupider.

    Here’s your opportunity to reach out and educate a new audience that is burning the Google Juice about these cases.

    Why not fill them in on a few of things, in detail, that countless blawg-ers have been rightfully griping about for decades.

    Don’t let the guilt or innocence of these two men cloud the discussion. Shine the light on the officers of the court!

    “They” are out there…. and they are hungry…. What an opertunity to serve it up and set them straight!

  • Matthew, Esquire
    10 January 2016 at 12:21 am - Reply

    What makes me sad, as an attorney, is the ease at which prosecutors are given a pass by the State Bar Association. The bars are always nailing attorneys to the cross for accounting errors on their trust accounts. But, they shy away from taking any action against prosecutors who hide evidence, lie to judges and jurors, etc… They seem to be reprimanded at best and lose their jobs at worst. They just moved on to private practice….the prosecutor in the Avery Rape case should not be practicing law. He makes all lawyers look bad and damages our legal system.

  • “Making A Murderer”: Any Love Is Good Love? | Simple Justice
    10 January 2016 at 6:10 am - Reply

    […] 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 […]

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    11 March 2016 at 9:13 am - Reply

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