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.