The Anatomy of ‘Making a Murderer’: Netflix documentary tells a frightening story about the American criminal justice system

By DONNA J. BROWN For the Monitor Last modified: 1/31/2016 12:33:16 AM

(The following is the first part in an occasional series about legal issues raised by the documentary “Making a Murderer.”)







Over the holiday season, it seemed like the only thing my friends and family wanted to talk about was the Netflix series Making a Murderer. Because I have served as defense counsel in several high-profile murder trials, they wanted my thoughts on the legal issues raised by the documentary.



Making a Murderer uses trial footage and interviews to chronicle the Wisconsin criminal cases involving Steven Avery, and later his nephew, over a period of 20-plus years. The events chronicled in the 10-hour documentary series give new meaning to the quote by Mark Twain that “fiction is obligated to stick to possibilities, the truth isn’t.” Avery’s arrest and conviction on a charge of rape are documented, as is his exoneration 18 years later, when DNA testing vindicates his earlier claims that another man committed the rape. Avery later sued the local sheriffs for their role in his wrongful imprisonment, including suppressing evidence of his innocence.



But just when Avery is poised to get on with his life – including marriage and a substantial settlement from the government – he is arrested for the murder of a local woman, Teresa Halbach.



Avery asserts his innocence on these new charges, claiming that the same police officers who were responsible for his wrongful conviction on the rape charge 18 years earlier are also responsible for setting him up on the murder charge as revenge. Things do not look good for Avery, as the charred remains of Halbach’s body are found on his property, along with her abandoned car and keys. The latter two items have Avery’s DNA on them – and he was the last person Teresa had contact with before she went missing.



In a series of inexplicable coincidences, however, doubt starts to creep in as we learn that several of the officers who were involved in the previous wrongful rape conviction were also the officers who handled and discovered some of the most damning evidence against Avery in the subsequent murder charge.



A legal education



When people ask me to comment on the series, I tell them that you could teach an entire semester of criminal law based on this series: false and coerced confessions, suggestive identification of suspects, ineffective counsel, media coverage, the presumption of innocence, police bias, failure of the prosecution to disclose evidence, class, juveniles in the criminal justice system, the right of a defendant to testify and the right not to testify, victims’ rights, improper arguments and many more issues.



Before I say anything else, you should know that I am biased. We all are biased. When we view anything involving the criminal justice system, we do so through the distorted lens of our own experiences, traumas, disappointments, hopes and dreams.



It is like the viral photo of that dress – the one that is either white and gold or blue and black – but instead of different people seeing different colors, people who watch Making a Murderer will see a spectrum of injustices related to their own biases.



Here is what I observed with my particular set of biases.



Even though the series is about Steven Avery, I am haunted by what happened to his nephew, Brendan Dassey. Police interviewed the 16-year-old while gathering evidence to link Avery to the murder of Halbach, even though they had no eyewitnesses or physical evidence that suggested Brendan was involved in any way with the murder.



Brendan had previously denied knowing anything about the murder, but during the course of the interview he confessed to lurid details about participating in the rape and murder of Halbach, including that he slashed her neck while she was chained to his uncle’s bed, as Avery cheered him on.



When the interrogation is over, Brendan asks the police officers if he can go back to his sixth-period class because he has a project due.



I have spent a lot of time studying false confession research. (If you want a tutorial on the subject without hitting the books, I strongly recommend The Central Park Five documentary.) The research shows that certain police interrogation techniques can produce false confessions, especially when the suspects are young and have low IQs, just like Brendan.



One technique is “minimization,” which leads the suspect to believe that even though he may be admitting to something serious, he is not really fully culpable. That is why Brendan thought he could just go back to class after he told the police he committed rape and murder. In a call from jail to his mother about why he made up the story, Brendan said, “They got to my head.”



Expert opinions



In 2003, I used an expert on false confessions during a murder trial. To understand why that kind of expertise might be needed, consider this statement from the prosecution during Brendan’s trial: “People who are innocent don’t confess.” On its face the statement makes sense, but research has shown that it’s not true. When science supports an idea that is counter to common belief, the law recognizes that expert testimony may be necessary to explain the science to a jury.



For example, in sexual assault cases a victim may wait years to report a crime for a variety of reasons, including fear and grooming by the perpetrator. Common sense may tell us that if a person was sexually assaulted they would go to the police right away, but the research says otherwise. So just as an expert may be necessary to explain why a person might wait years to report a sexual assault, one may be necessary to explain why people confess to crimes that they did not commit. DNA proved that it happened not once but five times in the Central Park jogger case.



When I sat down to watch Episode 9, on Brendan’s trial, I waited to hear from an expert who would surely explain to the jury that this case had many of the risk factors for a false confession, and not just because the suspect is young and has a low IQ.



The expert would explain that one consideration in evaluating a confession is whether the confession is consistent with the physical evidence, which was not the case for Brendan because there was not one drop of blood on the bed where he supposedly slashed Teresa’s neck.



The expert would explain that another risk factor is when police feed information about the crime to the suspect, which happened in this case.



The expert would explain that bias on the part of the interviewing officers could also contribute to a false confession.



But there was no expert testimony, no credible explanation as to why a 16-year-old boy would confess to a rape and murder he did not commit.



The defense rested, and Brendan was convicted of rape and murder.



On this issue, New Hampshire’s justice system has fared better than Wisconsin’s, as most criminal defense attorneys in New Hampshire have received training on false confessions. I know to ask for an expert when necessary, and several judges in the state have approved funds for retaining experts on this very issue.



String of injustices



The coerced confession was not the last of the injustices that befell Brendan Dassey.



He was assigned an attorney who held a press conference before he even met Brendan where he opined that his client was “morally and legally responsible” for the crime. This same lawyer admitted that he tried to drive a wedge between Brendan and his mother so he could get Brendan to plead guilty. The same lawyer hired an investigator who was clearly biased in favor of the prosecution to extract a second confession from Brendan after he recanted the first one. And in a move that shocks most lawyers and anyone familiar with the criminal justice system, that same lawyer allowed the police to interview his client a second time and did not even show up for the interrogation.



That second interrogation would be comical if it were not so shocking.



In the videotape of the interview, we watch as Brendan tries to tell the police what they want to hear, again. The problem is that he has a hard time getting his story to match the facts, so police have to correct him.



After the interview, Brendan calls his mother to tell her that his investigator wants him to say that he committed the murder with Avery so he would not spend the rest of his life in prison.



I recently heard an interview with the creators of the series, who said those who are debating whether Avery and Dassey are innocent or guilty are missing the point of their work. It is not whether these two men are guilty or not guilty, but whether the criminal justice system worked as it was supposed to work.



As Avery’s own lawyer observed: “There’s a big part of me that hopes that Steven Avery is guilty of this crime because the thought of him being innocent of this crime and sitting in prison again for something he didn’t do, and now for the rest of his life, without a prayer of parole – I can’t take that. And Brendan Dassey – they had a demonstrably untrue confession from a seriously compromised kid. It scares the hell out of me.”







(Donna J. Brown is a partner at Wadleigh, Starr and Peters in Manchester, where she practices criminal law. Before going into private practice, she was an attorney at the New Hampshire Public Defender’s Office for 29 years. While at the public defender’s office, she was trial counsel in several local high-profile cases, as well as counsel for one of the co-defendants in the Mont Vernon murder trials.)





