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#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.”
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