The real horror of Making a Murderer

While I'm quick to loathe spoilers, I really wish somebody would have just told me that I was going to be disappointed by Making a Murderer. I, like probably many others who watched this show, expected a real life translation of True Detective.  Who committed the murder?  Avery?  The corrupt police?  Martin Shkreli?

Although you really should go watch it right now, I'll throw the spoiler alert here, because in order to understand who the real perpetrator is in Murderer, you need to know how the story ends.

Here goes.

Steven Avery, a Wisconsin man who could modestly be described as a troubled human, was falsely imprisoned for 18 years in under suspicious circumstances. DNA evidence got him released, and he was in the late stages of a 36 million dollar lawsuit against the sheriffs department and the Wisconsin Attorney Generals office, but within the weeks after key prosecution elements were deposed, Avery was charged with the murder of Teresa Halbach, a vehicle photographer who occasionally worked with him. Much of the evidence was suspect, but admissible, mostly due to decisions made by the judge, Patrick Willis, at the request of the prosecution, Kenneth Kratz, and he was convicted.

(Much of the prosecutions case was, at best, circumstantial, and at worst, complete bullshit.  This article, while published by a less than credible source, outlines most of the almost hilariously suspect evidence presented by the prosecution.)

Eventually, jurors found Avery guilty of intentional first degree murder and felony possession of a firearm.  They did not, however, find him guilty of mutilating a corpse, which is strange, because the fact that the corpse was mutilated was, in itself, one of the key pieces of evidence pointing to Mr. Avery's guilt.

Now unless you're certain that everything is on the up-and-up with the prosecution (which would put you in a minute percentage of people) you never find out who actually committed the crimes for which they convict Avery. Intentionally or not, MaM opens like it's a gritty real-life who-dun-it that appears to inch closer and closer to a logical, satisfying conclusion, but then shows you the sad, horrible truth- we'll never know what actually happened. 

Here's the real monster- this is all by the design of the system that prosecutes him.  Their jobs are to take this man and make him a murderer, if in no other way by convicting him.

Ask any trial attorney, and they'll tell you- The justice system is not designed to investigate crimes, just to convict people.

At a glance, the convict-first-and-ask-questions-later approach makes sense. People get accused of crimes.  These people need to be investigate, tried, and if guilty, prosecuted, and no taxpayer wants to pay a prosecutor who doesn't convict anybody. Therefore, the more convictions, the better, right?

It would certainly appear so.  Currently fewer than 8% of cases go to trial because of plea bargains- meaning automatic convictions.  It's like a cheat code for the prosecution.  

Prosecutors all across the country depend on this. Want proof?  See what would happen if everyone who took a plea bargain decided to go to trial. Another spoiler here: it would destroy the court system.

So if you're a prosecutor who depends on what is essentially a life-ruining auto-fire button, and you want to make sure nobody spills surge on your career Game Genie, the most effective method is to insure that a defense in a fair trial is so goddamn expensive that it's virtually impossible.  

Forget the fear of a more severe sentencing- just going to trial is crazy expensive, to the point where just being accused of a crime can ruin your life, and that's assuming you aren't already poor.

Trial lawyers are expensive.  An attorney costs $2000-3000, or over 400 hours of work at minimum wage (that's for a misdemeanor, by the way- move on to felony cases and you're talking about years and years of working just to pay for an accusation.)

But even being the gun burning godless hippy that I am, I know this is a necessary evil.  It takes time to build cases, gather evidence and talk to witnesses, but it needs to be done.  That's how you find the truth, which I think most people want if they think that, you know, something needs to happen to people accused of a crime.  

But with the amount of money involved, you would demand (or at least expect) that there would be a lot of resources dedicated towards finding out exactly what happened, so that one could be certain the correct person is charged appropriately.  But as Making a Murderer documents so, so brutally, it ain't happening.  

The system is meant to generate convictions, not convict appropriately. This distinction is the most horrifying aspect of the series. You can't look at a single element in the prosecution in this case without wondering which circle of bureaucratic hell these people came from.

The judge of the murder trial, Patrick Willis, is in charge of the courtroom, meaning that he is obligated to provide a fair environment to try Avery.  He doesn't do this, exactly. He allows the prosecution to present, as evidence, the results of an FBI test on Mr. Avery's blood that's demonstrably unreliable-which just so happens to help the prosecution.  He doesn't allow the defense time to test the exact same blood. He doesn't allow pre-trial instruction for the jury, in which they would be told that the most notorious man in the county should be treated fairly, since his previous rape charge is irrelevant to the case (something you would expect a fair prosecution should favor, since their case shouldn't really involve any event that didn't happen, especially one that didn't happen 23 years prior.)

One of the many times I found myself screaming "What the fuck?" at my screen was watching Judge Willis during Avery's sentencing.  Willis doesn't directly address Avery until this point, where he goes on a dramatic, hand wrenching monologue, claiming that Avery's crimes have been more and more severe (presumably this includes the crime he didn't commit, but whatever.)  If you hadn't seen any of the show until this point, you'd think that the judge had never laid eyes on the man. 

Which I suppose would be fine if Willis wasn't almost entirely responsible for the environment in which the jury heard all of the evidence, and what evidence could be heard. The man was able to help the prosecution as he saw fit, help determine the outcome of the trial, but now switches to now be the executioner, so to speak, all in the name of protecting the public from a man who was abused by the system he controls.

You get to watch a judge hand-hold the prosecution, and then watch his false disgust as he pretends to finally acknowledge that he knows Avery is guilty.

Judge Willis is not an outlier.  There's a long history of judges working in secret against the prosecuted.

Prosecutors get several unfair advantages against the defense in every criminal case everywhere, and it's no different with Avery. Kenneth Kratz, the district attorney, works behind the scenes with the investigators and lab technicians, even sending them notes telling them the exact evidence he wants them to find to help his case. 

Think about that for a second. If it were to have come out that Avery's attorneys were asking detectives for specific information and evidence that would help acquit their client, it would have gathered so much drama and traffic that Nancy Grace would have had an on-the-spot involuntary orgasm. 

Key thing to remember:  The prosecution should have the exact same relationship with the evidence that as the defense should have- and that means that the prosecutor doesn't get to say things like “put Teresa in [Avery's] bedroom” to the woman running the DNA tests.

Even the lawyers representing Avery are just pieces in a broken system.  They are there to convince the jury that the system is working against their client in ways that are unfair- but they're really there because they're getting money in exchange. 

And they are getting paid.  In a phone call between Avery and his brother, you hear that the Avery family is selling their salvage yard to pay for the two attorneys.

Steve Avery's family is losing their business, and in exchange, these men try to use their experience to defend him from a system that was supposed to treat him fairly.

It sounds like it's fucked up until you realize the convictions are actually the point of the whole process. If it's expensive and impossible, it's because it's supposed to be, enough so that people with less than Steve Avery don't even have the opportunity to contest (and probably fail) in the way that he does. Is your life's work enough to pay two men for four months of their time?  No? Guess it's time to take the plea bargain.

All in all, it's cashing in on convictions, monetarily or through some variety of vendetta satisfaction, or, in the least crazy scenario, people getting to use their specific authority and agency to tamper with evidence to make their jobs a little easier. It's a lot easier to convince somebody of Steven Avery's guilt when they hear details such as his blood being in the car (which totally didn't come from an easily accessible and clearly tampered-with blood sample in a storage area by the police department,) his nephew's bullshit confession, or how the victims keys were magically found on his bedroom floor 8 days after the investigation started, by a policeman that wasn't supposed to fucking be there.

What's important to remember about this particular documentary about this particular investigation is NOT that it's unusual. Cops plant evidence all the time. If Murderer is supposed to convince us of anything, it's that the legal system worked against Avery exactly as it usually does- the intent was never to investigate an incident for the sake of truth, or justice; although the people doing the investigation will always admit that if nothing else, justice can be a byproduct.

How can they do this?  Four reasons:

1. Nobody cares about the defendants.  This is a big one. These people aren't saints. Steve Avery was, by a few different accounts, a complete piece of shit. But if you believe in the idea of justice, then if it was anybody from Steve Avery to his idiot nephew to Steve Buscemi or Shamu, the trial and the punishment would be the same.

If the crime is the same, the punishment is supposed to be the same, and if the punishment is the same, then the trial must be consistently fair.  Disagreeing with this means that you'd have to be OK with a loved one having the same trial that Steven did. If you would argue for a fair trial or yourself, then you would have to argue the same rights for Avery. 

2. Nobody knows as much about the law as those involved, so we have to assume that people in charge are making correct choices. The law is a thing that has become more and more complex, and people who make a living understand that law are usually able to understand the basic economics behind being a lawyer- you have a supply of knowledge and experience, and the best way to capitalize on your resources is to ensure that the ratio of supply and demand work more towards your favor. Through years of subtle decisions made by like minded people, intentional or not, the true winners of our court system are lawyers- people who can understand the intricacies of the codes they write themselves, all the while charging people for the translations.

3. Supply and demand. This could be fixed by reducing the supply, i.e. changing laws to prevent unnecessary arrests, but one of the biggest reasons that can't happen is that there would be a lot of political push-back by people who depend on the industry created by these arrests- the DEA, the ATF and others receive their funding because the laws are written to maximize their need, if they have anything to say about it. Not to mention the private prison enterprise, which has capitalized on light-speed convictions by profiting from fuller prisons. (We're now at a point where entire industries have formed on a steady nation-wide conviction rate- something that sounds insane when you say it out loud.)

4. Judges are publicly elected, and when you're trying to advertise your accomplishments against your opponents, there needs to be some sort of metric to brag about.  John Oliver already covered this. (Patrick Willis, the judge who oversaw the murder conviction for Avery, ran unopposed for the majority of his terms. He retired in 2012.) As stated briefly, the judge has a much greater incentive to ensure a high conviction rate lest he be thought of as inefficient- it's much easier to brag about a 100 percent conviction rate than it is to explain that you carefully attempted to understand the position you were put in, ensured fairness to everybody, and used intelligent consideration to make the correct choices in the short time of a Green Bay Packers TV time-out slot.

The combined choices of all people involved have slowly created a system that is at the very least unsustainable and at the very worst a bastardized night terror of the framers idea of a fair trial.

What this means is that the deck is stacked so hard against the accused that there is almost no chance of financially, socially, or even medically recovering from an accusation, let alone conviction. 

Is that really the country we want to live in? With no agenda in this case, do you really think that the prosecution took the right steps?

The counter-argument to this is simple:  The man is, most likely, guilty. Regardless of the blood sample clearly being tampered with, or the obvious motives and vendettas against Mr. Avery held by people at every level of the Manitowac justice department, or any number of reasons that this trial was a fucking sham-he did commit the crime, prison is where he belongs.

Unfortunately, we can't be sure. We'll never be sure. And that's where the whole thing has just gone so horribly, horribly wrong. Steps were made long before Steven Avery stood trial to ensure that he and people like him weren't brought to justice, because without the truth, there is no justice. It's a lot neater to prosecute without investigating and call yourself the authority. Never mind what's true- finding the truth takes effort, effort costs money, and we all now know that given the choice, we'd all rather put our money somewhere else.

Sam Wellborn is now going to re-enact the murder from Making a Murderer, where the victim will be played by a Pop-Tart with butter on it.  Follow him on Twitter, or e-mail him at swellbo@gmail.com for some more old-school NES/Game Genie references.