You Probably Missed the Point of <Em>Making a Murderer</em> and <Em>Serial</em>

United States Activism
by Matt Hershberger Jan 25, 2016

IF YOU HAVE A PULSE and an internet connection, you’ve heard of the hit podcast Serial, and the hit Netflix documentary series Making a Murderer. You’ve also probably heard about the activist networks that have grown around both of these shows. Serial spawned multiple spin-off podcasts, including one orchestrated by Adnan Syed’s (the man convicted of the killing that was the subject of season one) defense team, and one, called “The Serial Serial,” which is basically just a water cooler “let’s talk about what happened this week on Serial” podcast.

For Making a Murderer, the response has been similar: SubReddits featuring a lot of amateur sleuthing, and petitions galore: petitions to free the possibly-wrongly-convicted Steven Avery, petitions to free his self-incriminating, possibly-mentally-handicapped nephew Brendan Dassey, petitions to get the Governor of Wisconsin to pardon them, petitions to get President Obama to pardon them (which President Obama can’t legally do in state matters), and petitions to get the Wisconsin Supreme Court to accept his appeal.

The public response to true-crime documentaries such as these has been truly overwhelming. But all of the anger and all of the activism has frequently been profoundly misguided.

Neither man is necessarily innocent.

I know there are plenty of people on the internet who fully believe that Steve Avery was framed, or that Adnan Syed was innocent and was a victim of a negligent defense lawyer and a lying witness, but neither man’s innocence was proven in their respective show. Unlike Robert Durst in HBO’s The Jinx, which ended with Durst’s bathroom confession, “I killed ‘em all!” there was no such closure in either show.

After the fact, plenty of evidence has been released that seems to point towards Avery’s guilt. Avery’s ex-fiancee has since said she believes Avery is guilty, and that he frequently threatened to kill her as well. Even Dean Strang, the insanely likable nerdy defense lawyer from Making a Murderer has expressed some doubt about Avery’s innocence at the end: “Could he be guilty?” Strang said in an interview with The Daily Beast, “Sure, he could. Do I think he was proven guilty? No. Do I think there’s a real strong chance he could be innocent? Yes. But that’s just me. I wasn’t asked to decide.”

For Syed, a source as respected as Glenn Greenwald’s The Intercept cast doubts on the possibility of Syed’s innocence, and even Sarah Koenig and Dana Chivvis, the narrator and producer of the show, respectively, said they weren’t sure: “You just have to think ‘God, that is—you had so many terrible coincidences that day,” Chivvis said in the final episode. “There were so many, ‘You had such bad luck that day, Adnan.’”

Most people I hang out with have expressed a similar ambivalence about the two shows: “Am I sure he did it? No, but it doesn’t seem like he should have been convicted,” seems to be more or less the popular sentiment. What people are certain about is not the innocence of either of these men, but rather that something in our justice system went wrong in their convictions.

Which is why it’s so confusing that the responses to these shows have been widespread calls for the release of these two men. There’s a much more serious problem at hand here that deserves our attention.

Trust in the justice system

The American justice system, it should be said, works pretty well when everyone involved is acting in good faith. When the prosecutors aren’t being sleazy, when the investigators aren’t bullying witnesses into confessions, when the police are being trustworthy, when the public defenders aren’t in a rush, when the judges are being fair, when the media isn’t poisoning the public against a defendant, and when the jury is following the gold standard of presumption of innocence, it’s pretty hard to get a wrongful conviction and a miscarriage of justice.

But what Serial and Making a Murderer both excel at showing is that it’s very possible for one or more of these components of the system to fail. In Syed’s case, it was as simple as having an overworked, in-debt, physically unhealthy defense attorney. In Making a Murderer, there were even more failings on the part of the justice system: the police, first and foremost, were (at best) behaving sketchily in their collection of evidence. Secondly, the investigators manipulated a mentally-handicapped teenage boy into a confession that may well have been stolen from the movie Kiss the Girls. Then the prosecutor gave, in gory detail, this confession to the media prior to the start of the trial, making it extremely difficult for this very well-publicized case to get an unbiased jury.

Brendan Dassey, Steven Avery’s co-defendant, was even shorter on luck because his family wasn’t able to afford an attorney, and thus had to resort to a public defender. His first public defender actually pushed Dassey to incriminate himself and seek a plea bargain. This, incidentally, is not unusual: according to the US Department of Justice, 73% of public defenders exceed the recommended number of cases to take on each year. In Washington State, it was revealed that public defenders often work less than an hour on a given case, and in Florida in 2009, the average annual public defender caseload was 500 felonies and 2,225 misdemeanors. And public defense programs are incredibly underfunded: for every $14 spent on policing, a single dollar is spent on public defense. The result is that 90 to 95% of all criminal cases end in plea bargaining. A good chunk of those plea bargains, of course, are the result of the defendant being guilty, but an overworked public defender is not likely to put all of their time and energy into a case if they have hundreds of other cases they are working on. It might, understandably, become tempting to push their clients to pursue a plea bargain.

None of these failings of the justice system mean that either of these men are innocent. It does, however, mean that the justice system can be wrong. And this is a very disturbing thing to hear: one of the most important elements in living in a civilized society is the presence of a basic, trustworthy justice system. It underlies everything we do: the trust that our police are here to protect us and are not working against us. The belief that, if something does happen, the courts will work to make sure justice is done so that it does not fall into the hands of the mob. The belief that, if we are accused but are innocent, that we will receive the benefit of the doubt and won’t be wrongfully incarcerated. And that access to this system is not contingent on our race or income.

But as these two documentaries point out, the system isn’t always deserving of our trust. (Neither of these cases, by the way, ever focused on the systemic racism in the justice system, which is probably the biggest cause of the erosion of trust between the forces of law and order and the general public.)

When we can’t trust our most basic institutions, we can’t trust our society as a whole.

What should we be doing instead?

Fortunately, Making a Murderer and Serial are canaries in the coal mine, not the actual explosion of the coal mine. There’s still a lot that’s right with the American justice system, and there are still a lot of good people working in it. But unless we pay attention to the growing systemic flaws and the possibility for misconduct in our justice system, the mine is, someday, going to blow.

The response then, should be less on freeing Avery and Syed, and more on fixing a system that could create even more of them in the future. Not every wrongly accused person gets a documentary: 337 people have been exonerated across the country thanks to DNA evidence (like Avery in his first case) since 1989, and there are undoubtedly innocents in jail at this very moment.

If your interest lies in freeing the wrongfully convicted, you can give to the Innocence Project, which works on the behalf of the wrongfully convicted around the country.

If your interest lies in protecting the civil liberties of all Americans, the best organization to give to is the American Civil Liberties Union. They represent all races, all political leanings, and all classes. You can give to them here.

If your interest lies in reducing mass incarceration and building a more just justice system, check out the Brennan Justice Center, an NYU-based advocacy group and think tank that is fighting the good fight.

Finally, if you’re interested in creating a better society, start with your neighborhood. Get to know your local police, and hold them to a high standard — police are more effective when they have relationships with the citizens they’re working for. Then, tell your elected officials you want to end mass incarceration, overly-harsh sentencing, and racism in the criminal justice system.

Correction: An earlier version of this article stated that Syed’s attorney was a public defender. She had previously worked in public defense, but at the time of Syed’s trial was in private practice and had been retained by Syed’s family.

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