Making a Murderer, the 10-episode Netflix series by a pair of Columbia grad students, has generated an enormous amount of publicity across the nation. But now that it’s been absorbed and enjoyed as riveting television, it seems time to ask: is it an honest representation of the case?
The subject of the docuseries is Steven Avery, who spent 18 years in prison for a crime he did not commit. Follow-up DNA evidence proved that the inmate was not guilty of the rape for which he was serving time. Within two years of his exoneration, however, Avery was back behind bars—tried and convicted for the murder of 25-year-old photographer Teresa Halbach.
Making a Murderer suggests that Avery was set up by the Manitowoc County police in retaliation for making the department look bad in the overturned verdict. While the documentary fueled a public outcry for a review of the case, some critics say it didn’t tell the full story.
The criminal defense attorney and the presumption of innocence
Defense attorneys often get a bad rap for helping the “criminal.” In a post last month, Avvo Legal Analyst Lisa Bloom explained the critical role the criminal defense attorney plays in a serious case like Steven Avery’s. Attorney Matthew Wallin of Wallin & Klarich Law Corporation agrees with Bloom that the documentary has opened the public’s eyes to some of the deficiencies in our criminal justice system.
“It has started a discussion about the presumption of innocence and whether it exists only in theory,” says Wallin. “When you see a defendant in court, do you ask, ‘I wonder what he or she did?’ or do you see that individual as you should: cloaked with the presumption of innocence? Oftentimes, the prosecution is not held to their high burden of proof beyond a reasonable doubt, and true crime documentaries such as Making a Murderer are a great step in the right direction.”
A fair representation of the case?
Prosecutor-turned-defense attorney Jordan Ostroff also agrees that Bloom makes a great point about how important attorneys are, but he’s not entirely pleased. “The prosecutors and cops are never portrayed in a good light. [The filmmakers] don’t delve into a good backstory for them or provide any credence to their doing a good job,” says Ostroff.
Mark McBride, a Beverly Hills-based certified criminal defense specialist, says that Making a Murderer simply does not present a fair picture of the Avery case. “Leaving out critical evidence was, for me, a real deal breaker,” says McBride. “I suspect it was done to make [the series] more grisly, more salacious, and perhaps most importantly, easier for the viewing public to ‘understand.’”
Likewise, Ostroff “totally disagrees” with how the filmmakers treated the case. “The evidence that convinces me most is stuff they left out,” he says.
The evidence that was not evident in Making a Murderer
The most biting criticism of the documentary is that it did not show viewers the evidence that reportedly convicted Avery. Wallin is not surprised that a great deal of evidence was left out of the series, blaming it on the nature of the format. “With such a long trial,” he speculates, “it is not plausible that all of the evidence and testimony could have been included and consolidated into a documentary.”
To others, however, the filmmakers simply dropped the ball. “The biggest thing for me was Avery’s DNA under the hood of the [victim’s] car,” says Ostroff. “Even if the cops planted the blood there that they had from the last case, there is no way they can fake his sweat under the hood.”
Such evidence was a big omission for McBride, too. “The DNA on the car and Avery’s constantly calling [the victim] from blocked numbers and asking her to come over is very damning evidence.”
Innocence is not a defense
On this point, there is broad agreement: the show makes a clear—and accurate—distinction between being innocent in terms of actually having done the crime, and innocent as determined by a jury. “The show, at root, turns not on innocence but on whether Avery was guilty or not guilty,” says McBride. For the jury, the question is whether or not the government proved every element of their case beyond a reasonable doubt. “If they do, a guy’s guilty,” says McBride. “If they didn’t, then he’s not guilty. A jury does not determine actual innocence.”
McBride recalls Reasonable Doubts, a book by Allen Dershowitz about the OJ Simpson trial. “The book asked readers the question: If you were on a jury, and you believed that the defendant was not innocent but yet the government had not proved its case beyond a reasonable doubt, would you acquit?” Under the law, the verdict in such a case must be not guilty.
“You are not entitled to be free if you are innocent,” says Ostroff. “You are only entitled to a fair hearing.” By the same token, someone who’s done something wrong is only “guilty” if the jury determines that the prosecution has proven so beyond a reasonable doubt.
As for Avery? “Personally, I don’t think he was actually innocent but I think the jury should have found him not guilty,” says McBride. “No doubt about it. His trial was an unholy disgrace.”