Thoughts on the Steve Avery Case

I should begin this with two huge caveats.

First, I don’t have Netflix and therefore have not watched and likely will not watch Making a Murderer. I’ve read a fair amount about the documentary, but I’ll nonetheless try to keep my comments limited to the general criminal justice issues that the documentary raises.

Second, most of my thoughts will be based on my experience. I have years, not decades of experience, so keep that in mind.

To begin with, I’m not convinced that Avery was innocent of the original rape that he was later exonerated of. Avery was exonerated on the basis of DNA. Regarding a rape, while DNA can prove guilt, lack of it cannot prove innocence, especially in older cases when most of the DNA is lost. I think it is highly likely that the rape victim was raped by multiple men, as is not uncommon in these types of rapes, and that they recovered DNA from only one of the perpetrators. That DNA does not prove the innocence of anyone whose DNA was not found, only the guilt the man from whom they recovered the DNA.

DNA did not convict Avery in this original case and therefore DNA should not have exonerated him. I am aware that the victim’s testimony was confused and that this played a big part in his conviction. This also is unsurprising. Rape is absolutely horrific and women tend to block out parts of it as a sort of self-defense mechanism. I don’t know all of the evidence that was used to convict him, but I do know that twelve citizens believed beyond a reasonable doubt that he was guilty. That to me is more convincing than the evidence used to exonerate him.

But isn’t the justice system biased against the poor?

Well, that depends. If by this one means do more affluent people tend to get better plea deals, I would say yes. In offering a plea deal a prosecutor is assessing the likelihood of a criminal repeating a crime. People with higher amounts of social and financial capitol are generally better at reforming and are therefore less likely to repeat crimes, so they are often offered better deals. What is more, around 99% of all criminal cases are settled via a plea deal! Is this right, is this fair? No and no. I think this is a place wherein our justice system favors the well off. However, this isn’t the part of the criminal justice system that the documentary confronts.

Steve Avery was convicted by a jury of his peers. In a trial by jury I think there is far less evidence that the well-off are more likely to be found innocent, though they may in fact receive lesser sentences.

But wasn’t the trial rigged?

Here I wish I knew more details—I can only say a few general things. Are police officers morally capable of planting evidence and framing someone? Of course. Teachers that give their lives to educate children and priests that give their lives to the Gospel regularly molest and harm kids. Human beings are capable of doing really crappy things—if priests and teachers can go bad, so can police. However, I think it would have been difficult for them to pull off the type of frame job that the documentary implies they pulled off. There are simply too many checks and too many big mouths for it to have worked out and been kept hush for a decade plus. So is it possible? Yes. Likely? I’m skeptical.

What makes me most skeptical about the documentary is the amount of key evidence, key evidence that points towards Avery’s guilt, that is left out. For example, Halbach knew Avery and was afraid of him, her possessions were found on Avery’s property, there was detailed testimony that Avery’s nephew gave of what he and his uncle did, and there was additional DNA evidence pointing toward Avery, evidence that is next to impossible to plant, like the sweat from his hands that was on Halbach’s car—a car that he claimed he never touched (for more see: http://time.com/4167699/netflix-making-a-murderer-evidence-left-out/).

Why would a documentary trying to discover the truth leave out such essential evidence?

I can think of two reasons: ideology or sympathy.

First, ideology. There are a number of people within the legal community that think our whole system is bunk. Instead of reforming it, they want to destroy and rebuild it on other principles. Most of these people belong to the Critical Legal Studies (CLS) school. CLS scholars are Marxist. While Marxists are a small part of the general public, they make up a significant part of the academic population. I for example had a number of open Marxist professors—they weren’t bad people and were often good teachers, however, I do disagree with them on some essential fundamentals. They, for example, believe that crime is a product of environment and therefore no one is guilty. The poor are formed by their environments and driven to crime. Therefore even if they are “guilty” of committing a crime, they are innocent in some larger sense because it was our unequal society that drove them to crime. The Innocence Project at the University of Wisconsin Law School is largely committed to releasing people that are in fact innocent, but there is a CLS segment that is committed to releasing anyone they can. What is more, because society drives people to crime CLS advocates, like all Marxists, are committed to the revolutionary overthrow of our government. Now this is tough to do. In order to do it you need to convince a significant portion of people that we should overthrow the state. In order to do that you need to convince them that our criminal justice system is broken beyond repair. I have no idea if the makers of this documentary belong to this school, but that has been the effect of this documentary. Time and again I have read comments to the effect that this movie is “an indictment of the whole system.” That is exactly the type of movie that a CLS proponent would try to make. (I should note that I do think there are major problems in our justice system but that we should point them out specifically and reform them as opposed to revolutionizing the whole thing. Trial by jury, an independent judiciary, the right to counsel, the fact that you can’t be forced to testify against yourself, the doctrines of probable cause and reasonable suspicion, and the standard of beyond a reasonable doubt all seem worth preserving—creating a new system from scratch, like every revolutionary movement, would make things worse, ultimately far worse.) 

The second, and probably more likely, reason why the makers of this film left out evidence is sympathy. They spent something like ten years with Avery and his family. When you are that involved with people it is very hard to distinguish fact from fiction. Moreover, at least in my experience, criminals are often very sympathetic and convincing! They give one side of the story, but it isn’t until one hears the other that one can come to something approximating the truth. I don’t know how many people I’ve talked to that absolutely convinced me (or could have convinced me) until I saw a photo, talked to another witness, etc. I can’t imagine talking to one person and family for ten years—I am sure they would be very convincing. Part of what makes criminals (and frankly a lot of non-criminals) so convincing is that they really believe themselves. Because of pride we all have a difficult time admitting that we have made a mistake. For example, when there is incontrovertible evidence against them criminals will say things like “then the gun went off” or “then the knife came down” as if they were passive participants in the murder. When they convince themselves, it is very hard to distinguish lie from truth as they don’t think they are lying! And this would be especially true if for ideological reasons one wanted to believe them. 

I hope this was worth reading! Feel free to follow up. Sorry I couldn’t be more specific.  

How Entertainment Choices Affect Us and Our Society

Why are entertainment choices important?

While there are a number of reasons, the following three interrelated reasons seem most important.

1.             Whenever we consume a type of entertainment we encourage producers to create more of that type. We live in a market economy where businesses only survive when they meet the demands of consumers. What we consume signals our demands—if we consume and thereby demand smutty entertainment, producers will meet that need by producing more smutty entertainment; if we consume wholesome or virtuous entertainment, producers will meet that demand by producing more wholesome and virtuous entertainment. The type of entertainment created is important because it creates our ideas of normalcy, which leads to the second point.

2.             Entertainment creates moral normative windows. The average American spends upwards of 30 hours per week in front of a screen—that is far more time than they spend interacting with people in real life. Because of this our ideas of what is good and normal are being formed by the things that entertain us. The sad fact is that even Christians are being more formed by what they watch than what God says. This fact explains why the behavior of Christians is indistinguishable from non-Christians and unrecognizable when compared to the Bible. Take just a couple of examples. Our movies, shows, and music over the last fifty years normalized first co-habitation and then homosexual relations. While the Bible hasn’t changed a word, Christian’s attitudes and behaviors have as they have been formed by the norms in our culture’s entertainment. Right now only fifteen of every hundred Evangelical Christians is a virgin on his or her wedding night and a growing majority support same sex marriage. The numbers on these two issues were quite different fifty years ago, but by portraying these sins as normal and good our entertainment has created new ideas of what is normal and good and these ideas have changed the thoughts and patterns of behavior of everyone, including Christians. This is important because the way that people live affects all of us. No political structure or candidate can create freedom and order; it is only individuals living moral lives that allows these two things to flourish together. The community is the product of individual behavior, what we watch affects our individual behavior, so ultimately what we watch affects the happiness and flourishing of our communities. Take for example sex before marriage. The number one predictor of both imprisonment and poverty is not a person’s race or class but rather whether or not they are raised by a single mother. Our society has normalized single motherhood and portrayed it as a good, which has led to a vast increase in out of wedlock births. These out of wedlock births are the number one driver of poverty and crime in our country. We think that what we see on television is normal and good and we do what is normal and good, but this is harming our communities. What is more these thought patterns and behaviors often hinder the Gospel message, which brings us to the last point.  

3.             Sinful entertainment creates plausibility structures that often make it more difficult to accept the Gospel and grow in faith. A plausibility structure determines what type of information you will consider fairly, i.e. find plausible, and what you will dismiss out of hand. For example, if I lived in North Korea and someone told me that the United States was a free and prosperous country, I would not fairly listen to what they had to say. Everything that I would have seen and heard growing up in North Korea would have made their idea completely unbelievable to me, absolutely implausible to me. In the same way, what I watch and listen to here in the United States forms my plausibility structures—it determines what I think is possible and believable. If I watch entertainment that portrays sexual immorality as normal and enjoyable I am going to think that sexual immorality (things like sex before marriage or homosexual activity) is normal and enjoyable. That belief is going to make Christianity seem implausible to me, for how could a good God prohibit what is normal and enjoyable? At this point one of two things will happen: 1) I will do what I want and ignore God’s prohibition and thereby ignore God or 2) I will think God is stupid or evil for prohibiting something that is normal and enjoyable. If I am not a Christian, these beliefs will likely keep me from coming to Christ; if I am a Christian these beliefs will either lead me from the faith or prevent me from growing in faith.

The reason why entertainment’s influence is so powerful is that it works on us at a subconscious level. No one listens to a song or watches a show and thinks “I don’t think premise A is true; or, I think there might be a logical fallacy in that conclusion.” These ideas go straight into our subconscious without any type of rational criticism. Because they exist there we often cannot recognize them and therefore think that “what I watch is no big deal because it doesn’t really affect me.” But it does. It affects our thoughts, which affect our acts, which affect our communities, which taken together affects our ability to receive the Gospel and grow in faith.