Making a Murderer: The Punishment Is the Process

Apr 15, 2016

After serving 18 years for sexual assault and attempted murder, new DNA procedures led to Steven Avery's exoneration. Surely, he must be guilty of something.

Dr Greenberg advises that this review contains spoilers: if possible, readers should watch Making a Murderer before reading the article.

[[{"type":"media","view_mode":"media_crop","fid":"47758","attributes":{"alt":"","class":"media-image media-image-right","id":"media_crop_2162920961000","media_crop_h":"0","media_crop_image_style":"-1","media_crop_instance":"5654","media_crop_rotate":"0","media_crop_scale_h":"92","media_crop_scale_w":"150","media_crop_w":"0","media_crop_x":"0","media_crop_y":"0","style":"font-size: 13.008px; line-height: 1.538em; float: right;","title":"","typeof":"foaf:Image"}}]]In 2003, Steven Avery was released from a Wisconsin penitentiary after serving 18 years for sexual assault and attempted murder. New DNA procedures led to his exoneration. His prison photos resemble a Hell’s Angels’ gangbanger or an Aryan Brotherhood yahoo. Squat, with feral features and an enormous untrimmed beard-one would image he must be guilty of something. Shaven and suited, he looks like the most solid of citizens. He became the poster child of The Innocence Project, which helped to free him.

A largely circumstantial case

Avery hailed from Manitowoc County, a place of tidy small towns and heartland values. For years he had presided over a dilapidated garage cum auto-part junkyard. Several acres were strewn with hundreds of rusting car carcasses.

Most townspeople viewed the Avery clan and their associates as a vaguely unsavory lot. Their speech was hillbilly twanged and ungrammatical. Some had been arrested for petty crimes.

Avery’s release outraged and humiliated the Manitowoc authorities, who remained absolutely certain of his guilt. In retrospect the case against him was largely circumstantial-except for the victim’s crucial testimony. She first identified Avery from an ambiguous police sketch, then from a photo the police showed her. She arguably suffered at the time from post-concussion symptomatology, was further cozened by overeager interrogators to pin her assault on Avery, and stuck to her story at trial. A disdainful judge guillotined the defense, Avery’s was disregarded, and he was sentenced to life imprisonment.

Target on his back

After his release, Manitowoc police painted a target on Avery’s back. Two years later, he was arrested for the murder of Teresa Halbach. She had taken photos before at Avery’s garage for an auto sales magazine; she was driving there again to do another shoot, when she disappeared.

The police nominated Avery as their only person of interest; they searched his house and business relentlessly over many days. Bits of Halbach’s bones eventually were discovered in Avery’s fire pit. Her car mysteriously materialized among the wrecks, bearing traces of Avery’s blood. Then its keys were found, hiding in plain sight, by Manitowoc police lieutenant James Lenk-who figured prominently in Avery’s case 18 years earlier. (The Manitowoc cops were ordered to recuse themselves, but permitted to act as “advisers” to the new investigators.)

An unlikely co-conspirator was also arrested: Brendan Dassey, Avery’s 17-year-old nephew. Dassey said that Avery had invited him into his house to rape Halbach, then assist Avery in murdering her. Dassey was mentally challenged, meek, and easily led. His confession to the grisly crime was easily obtained.

His lawyer, Len Kachinsky, was unaccountably absent during the first police interview, at which Dassey was not properly Mirandized in the setting of his diminished mental capacity. Kachinsky subsequently requested that one Michael O’Kelley conduct a polygraph examination. O’Kelley’s credentials were later found to be problematic. But O’Kelly never performed the exam. Instead he cunningly bullied and cajoled an even more detailed confession from Dassey. This time Kachinsky’s absence was deliberate, the better to facilitate O’Kelly’s browbeating. It turned out that Kachinsky had immediately deemed Dassey’s guilt, and hoped to win him a better sentence by admitting he was an accomplice, compelling him to admit to participating in Halbach’s death by ratting out Avery in court.

Avery had a multi-million suit pending against Wisconsin for his first unjust imprisonment. Stripped of cash, he was forced to settle for $500,000 to hire another defense team. At his second trial, 2 exceptional lawyers argued persuasively that Avery had been entrapped by Manitowoc police. It was alleged the latter had planted Halbach’s car on Avery’s lot and spotted it with traces of his blood taken the first trial’s evidence box. Lenk then “discovered” the crucial keys.

Transferring the case to nearby Calumet County influenced the trial’s outcome not a whit. Avery and Dassey were summarily found guilty, sentenced to life imprisonment, and remain incarcerated to this day. Dassey never testified-possibly because tapes of his confessions revealed the questionable techniques used to force them from a hapless naif, who lacked full capacity to understand the charges against him or to participate meaningfully in his own defense.

Making a Murderer

Making a Murderer is a 10-episode Netflix documentary, written and directed by Laura Ricciardi and Moira Demos. They were first drawn to the Avery case in 2005; they spent the subsequent decade interviewing most of the people on both sides of the case. The series immediately drew an impressive audience, which escalated when Making a Murderer went viral. In turn it spawned a plethora of websites devoted to ferreting out every micro-detail of the Avery case.

In the style of Frederick Wiseman, Ricciardi/Demos refuse an “omnipotent” narrator. Instead, shots and scenes accumulated over a decade have been artfully stitched together, using the occasional intertitle to move the story along.

My previous column on Amy Winehouse addressed the wrongheaded notion that a worthy documentary presents unmediated reality.1 Ricciardi and Demos repeatedly have contended that their work is balanced equally between arguments for Avery/Dassey’s guilt or innocence. But the film is in fact strongly tilted against the authorities. Cinematic choices of shot, scene, and sequence are admirable, but these should not be taken as received truth. The very title of Making a Murderer deconstructs around the premise of its creators’ neutrality. A bit of backstory about the “real crime” genre’s evolution will be followed by speculation on the reasons for the program’s boffo virtual box office.

 

Evolution of the “real crime” genre

Our appetite for tales of gore and their detection reaches back to days of yore. Sussing out killers pervades poetry and myth, fairy tales, and folklore. Murder most foul comprises the mainspring of much high tragedy-Greek, Roman, Kabuki, Elizabethan (eg, Hamlet). Fiction about private and police detection debuts in the 19th century with Wilkie Collins’ The Moonstone. Conan Doyle’s Sherlock Homes stories would engender an avalanche of detective fiction that translated easily to cinema and TV. Today, sleuths of every ethnicity, nationality, age, gender, and intergender flourish in fiction and fact.

[[{"type":"media","view_mode":"media_crop","fid":"47760","attributes":{"alt":"","class":"media-image media-image-right","id":"media_crop_5574758209813","media_crop_h":"0","media_crop_image_style":"-1","media_crop_instance":"5655","media_crop_rotate":"0","media_crop_scale_h":"126","media_crop_scale_w":"200","media_crop_w":"0","media_crop_x":"0","media_crop_y":"0","style":"font-size: 13.008px; line-height: 1.538em; float: right;","title":"© MYIMAGES - MICHA/SHUTTERSTOCK.COM","typeof":"foaf:Image"}}]]The “true crime” genre goes back as far as ancient China, to tales of a travelling magistrate who solved murders with Confucian subtlety. Elizabethan broadsheets gloried in grisly crimes and their horrendous retribution. 18th and early 19th century readers relished accounts of savage murders recorded in the Newgate Prison’s The Malefactors’ Bloody Register. Late Victorian tabloids delighted in gruesome killings that mocked the days’ Puritan norms. Famous murderers acquired a peculiar luster (eg, wife-killer Dr Crippen [caught and executed] and Jack the Ripper [identity still unknown]). Popular “True Detective” magazines of the 20s and 30s sported covers with luscious frails and dangerous dames of notably sordid real killings were heavily doctored.

Fictive detective movies have been lucrative industry staples since the silent era. But real crime films are few, compared with pictures “based on” actual homicides. The small screen would eventually become the perfect metier for real crime programming. Shows like Cops and America’s Most Wanted still attract large audiences, but hardly generate the avid suspense of the best courtroom TV coverage, particularly of rich and in/famous killers like O.J. Simpson. The format of true crime reality TV shows would seem to be ideal in this respect-evidenced by the high ratings of NBC’s Dateline, CBS’s 48 Hours, and the tide of programs on the Investigative Discovery channel, with tasty titles like Wives With Knives, Evil in the House, Highway of Death, and so forth. While these provide a dramatic moment or two, one eventually wearies of wretchedly predictable accounts of pillars of the community with a “dark side”-usually addiction to pornography, lap dancing, and adulterous whoopee in sleazy motels. Real crime series devoted to the technology of detection may fascinate gizmo-obsessed fans, but are short on chills.

The ennui of standardized reality crime programming is further stoked by using unknown actor “stand-ins” for murderers, victims, cops, etc. Lines spoken by these maladroit simulacra are sodden, often improvised on the spot. By comparison, in over 10 episodes of Making a Murderer, the diamond-hard reality of its dramatis personae makes for exceptionally strong watching.

In particular, the Averys and the people around them emerge not as the dirt ignorant, vagrant hillbillies misperceived by the town, but as fully fleshed people with respectable social values. Their language may be terse and ungrammatical, but their fundamental decency is impressive. This is especially true of Avery’s rough-hewn parents, whose suffering over their son’s predicament is achingly palpable. Avery, however, comes through as often opaque, not so easily read.

The appeal of crime fiction

Psychoanalytic literature on crime fiction and film is slim and often ludicrously wide of the mark (eg, speculation that the detective symbolizes the child who seeks to “solve” the misperceived violence of the primal scene). Leo Bellak, like myself a serious reader of the genre, is much more insightful. Bellak states that a successful detective story (and by implication, the real crime story) gratifies our pleasure in having tension skillfully manipulated.2 Suspense escalates as the detective pursues a tangled trail of clues, repeatedly encountering dead ends and dead people. Accumulated tension is released with the mystery’s elucidation and the criminal’s capture. Amidst an uncertain life brimming with unpredictable trauma, the comfortably ensconced reader or viewer identifies with the sleuth as he faces down death. One has witnessed the carnage not unpredictably, but by deliberate choice-and, after all, it’s someone else who is being imperiled.

We are innately problem-solving creatures-crime fans arguably more so by nature or nurture. Bellak argues that readers experience an immensely pleasurable “closure satisfaction” when the case is finally solved, and order restored to a chaotic universe.

Making a Murderer skillfully satisfies these criteria-except one: Ricciardi/Demos clearly believe that the fat lady hasn’t sung, and the show isn’t over.

 

“Unclosure satisfaction”

The lack of or undoing of closure satisfaction is not common in crime genres. But in the right hands it generates its own counterintuitive power-let’s call the result “unclosure satisfaction.” It’s evoked when the author cunningly brings us to the brink of closure, then leaves us suspended in an existential void, with a conflation of puzzlement, impotent despair, heightened sympathy for both sleuth and victim-even obscure anger at somehow having been cheated by the writer. Ricciardi/Demos’ talents articulated with the definitive rejection of Avery’s last appeal create intense unclosure satisfaction.

Avery was released after new DNA technology exonerated him, only to be re-arrested, plunged into the same brutal abyss, where once more he must toil through a labyrinth of Kafka-esque bureaucracy and engrained prejudice-this time sans topflight legal representation, sans Innocence Project. His reconfinement comprises the stuff of Aristotelian tragedy, except that the viewer’s pity, awe, and catharsis attendant upon Avery’s fall have been precipitated by implacable, perfidious authority, not by his own misdeeds. (Unless Avery isn’t innocent-in which case, no catharsis.) The denouement underscores that happy endings are more often the province of fiction, rather than the unfair reality show of real life. (“Go home, Jake, it’s Chinatown. . . . “)

But then along comes Making a Murderer.

I asked several criminal defense attorneys if they thought Avery-with or without Dassey’s help-had murdered Halbach. Opinions were divided. But all believed, hands down, that the errors committed within the police/prosecutorial chain were overwhelmingly sufficient to prove Avery’s guilt-and by implication Dassey’s-was not established beyond reasonable doubt.

One critic remarked that Making a Murderer has birthed an army of amateur sleuths. The troops haven’t gathered merely because of the series’ considerable narrative force. Whether Avery is guilty or not, one underscores that he spent 18 years in prison for a crime he didn’t commit, becoming ever more tangled and impoverished in the coils of a criminal justice system broken and corrupted at every level.

The brute reality of Avery’s first intolerable incarceration is indisputable. If he is innocent now, his Golgotha is happening yet again.

Avery’s has become a stand-in for countless other truly innocents. For Making a Murderer powerfully intimates that Avery’s fate could befall any of us. Anyone jailed for even 1 day will tell you that those 24 hours reveal the savage grinding down wrought by the system’s infernal machine.

In 1984, George Orwell wrote that “if you want to imagine the future, imagine a boot stamping on a human face. . . forever.” String hundreds, thousands of imprisoned days together, and Orwell’s future has been made present.

Another attorney once told me (it apparently is a common saying among lawyers and clients), “The process is the punishment.”

Disclosures:

Dr Greenberg practices psychiatry in Manhattan, New York. He publishes frequently on film, media, and popular culture. For many years, his cinema column appeared in Psychiatric Times. He has appeared frequently on national and international network and cable television programs including Good Morning America, Today, CBS Evening News, and CBS Sunday News, and on PBS, CNN, and BBC-TV.

References:

1. Greenberg HR. Amy: The frenzy of reknown. Psychiatric Times. 2016;33(2):29-38. http://www.psychiatrictimes.com/film-and-book-reviews/amy-frenzy-renown. Accessed March 8, 2016.

2. Bellak L. On the psychology of detective stories and related problems. Psychoanalytic Quarterly. 1945;32:403-407.

x