For Too Many Accused, “Making a Murderer” is All Too Real


The Netflix documentary “Making a Murderer” is creating quite a stir, and for good reason.  Like a John Grisham whodunit, it casts light into dark corners of our criminal justice system that law abiding citizens rarely consider.  The show follows Steven Avery, a Wisconsin man who spent 18 years in prison for rape before being exonerated, only to be rearrested for murder a few years later, found guilty, and sentenced to life in prison.  The highly questionable police methods—a key (literally a key) piece of evidence miraculously appears; an improbable confession is coerced from a simple-minded adolescent— and the glaring conflicts of interest of many of the participants will infuriate any fair minded viewer.

The show suggests that the moral core of our criminal justice system—the work of investigators and prosecutors that determines guilt or innocence—is rotten.  Most people firmly believe that unbiased police-work, forensic science, and the trial by jury are perfect mechanisms for discovering the truth.  But many of these pillars on which the public trust is founded have, in fact, been debunked.  The problems with forensic science were first exposed systematically in a National Academy of Sciences report in 2009, but the legal system has been slow to incorporate its findings.[1]  Official misconduct of the type suggested in Making a Murderer is not isolated to small towns in Wisconsin.  One of America’s foremost jurists and scholars, Alex Kozinski, a judge on the United States Court of Appeals, has written a recent article which outlines many of these problems.[2],[3]  And Kozinksi is no flaming liberal; he was appointed by Ronald Reagan.

Take confessions.  Though it is astonishing to most people, it is not at all unusual for people under duress to confess to crimes they did not commit.  And for minors sweating under the bright lights, their inherent anxiety and propensity for pleasing authorities, coupled with the various ruses, all legal, which the police can employ, render them easy prey.  New Yorkers cannot forget that the Central Park Five (teenagers at the time) falsely confessed and spent several years in prison before being exonerated.  On Long Island, Martin Tankleff was presented with unassailable evidence that he murdered his parents, subsequently confessed, then recanted.  The unassailable evidence was completely fabricated by his interrogators and Mr. Tankleff endured 17 long years in prison before the real murderers were caught.

Eyewitness testimony is also subject to manipulations and the plasticity of human memory.  In Steve Avery’s first case, the victim mistakenly identified him, urged along by several inappropriate prompts from the police.  And misidentification is even more likely when victims and perpetrators are of different races, an expected occurrence in multicultural communities like New York City.  Numerous expert panels have outlined model procedures for police to use when investigating eyewitness testimony and all police agencies should incorporate these findings.[4]

Forensic science, presented as infallible on TV shows like NCIS and CSI, is much less than perfect and more than a few well known methods have been tossed on the junk pile; the National Academy of Science, with its blue ribbon panels of leading scientists, has led the way in much of the debunking.  Bite mark analysis, arson science, fiber and hair analysis, are among those that are now discredited as completely lacking in scientific validity despite being used in thousands upon thousands of cases.   In an extraordinary admission, the Justice Department and FBI “formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”[5]  The Manhattan District Attorney’s office is, for reasons unclear, fighting tooth and nail (forgive me) to continue using bitemark evidence.[6]  In contrast, the new Brooklyn District Attorney, Ken Thompson, recently moved to have an arson-murder conviction overturned, in part due to now discredited “arson science,” and Mr. Thompson’s office is garnering national attention for its commitment to review cases and rectify wrongful convictions.[7]

Beyond the question of scientific validity, are the forensic practitioners ethical and capable?  Scandals about lax or non-existent quality controls are legion across America[8] and states are struggling to come up with laws and regulations governing the accreditation and licensing of forensic laboratories.  In a notorious Massachusetts case, a technician in the state forensic lab admitted to falsifying tests affecting as many as 40,000 convictions.[9]  Even though DNA analysis is scientifically valid, sloppy lab work has resulted in numerous cases of mistaken identity and wrongful convictions.[10]  And, shockingly, some states pay private crime labs only in the case of a conviction.[11]

At the heart of the criminal justice system are the prosecutors.  It is a well-worn aphorism that a prosecutor can convince a grand jury to indict a ham sandwich, such is their influence as figures of authority to sway lay jury members.  But to a prosecutor, the most important bit of data is his conviction rate, and his or her need to convict at all costs detours our system away from objectivity towards something like a witch hunt.  Prosecutors routinely withhold exculpatory evidence from the defense; as Kozinski puts it, “there is an epidemic of Brady violations [duty to disclose any vital evidence] in the land.”[12]  In the tiny state of Delaware, three death row inmates’ convictions were recently overturned based on prosecutorial misconduct.[13]  According to the National Registry of Exonerations, official misconduct was a factor in 45% of false convictions.[14]

In Making a Murderer, the filmmakers strongly suggest that the police and prosecutor had a vendetta against Avery, and conspired to plant evidence that implicated him.  Though Avery is from a small rural community, such department wide corruption is not unknown in large urban areas.  Currently, the Orange County (CA) District Attorney’s office is rocked with scandal, as seemingly everyone in law enforcement was falsifying evidence and suborning perjury.  As one observer stated, “what really sets Orange County apart is the massive cover-up by both law enforcement and prosecutors . . . [they] have effectively turned the criminal justice system on its head: dismissing charges and reducing sentences in extraordinarily serious cases, utterly failing to investigate unsolved crimes and many murders (by informants — in order to prevent that evidence from ever getting to defense lawyers)”[15]  And in Brooklyn, as noted above, the new District Attorney has begun dealing with the fallout of years of dubious tactics used by his predecessor Charles Hynes.

This litany of prosecutorial abuses and junk science is only a glimpse at the problem.  To give some depth, consider that one study in a prestigious journal estimates that 4.1% of all persons on death row could be exonerated.[16]  With roughly 3,000 people on death row now, about 120 may deserve exoneration.  If the estimate is extended to the 1.5 million persons in federal and state prisons[17], 61,500 persons should be declared innocent and set free.

Though Avery is not rich like OJ Simpson, he was able to afford a good defense team; he paid for it with a settlement from his false conviction civil suit against the people who were now investigating him!  But for poor people who cannot afford a private attorney, woefully understaffed and underfunded public defenders (aka public pretenders) are their only option.  That is why innocent people take plea bargains; without an effective defense they have no chance of winning.  According to the National Registry of Exonerations, 10% of exonorees pled guilty, despite their innocence, to avoid a trial.[18]   Public funding for indigent defense must be increased, commensurate with the rise in mass incarceration, to provide adequate defense for everyone.

There is already a broad consensus that we send too many people to prison, for too long, and for behavior (e.g., drug use, sex work, nuisance offences) that should not be criminalized.  Beyond that, we must ensure that police and prosecutors use valid methods to gather evidence and present that against the accused.  The public election of prosecutors must be revisited to avoid the sort of uncontested transfer of power that occurred in the Bronx last year.  Finally, the New York State Court system recently issued rules enabling video recording of courtroom proceedings and these should be interpreted as liberally as possible to ensure that a Making a Murderer type injustice can’t happen again.

[1] Strengthening Forensic Science in the United States, a Path Forward, National Research Council (2009)
[2] Criminal Law 2.0, 44 Georgia Law Journal  (2015)
[3] See also, Forensic Pseudoscience, The Unheralded Crisis of Criminal Justice, Boston Review (11/16/15)
[4] Identifying the Culprit; Assessing Eyewitness Identification, National Academy of Science (2014)
[5] FBI Admits Flaws in Hair Analysis Over Decades, Washington Post, (4/18/15)
[6] In Angry Defensive Memo, Manhattan DA’s Office Withdraws Bitemark Evidence, Washington Post (1/13/16)
[7] Brooklyn Prosecutors Revisit 3 Convictions in 1980 Fire, NY Times (12/16/15)
[8] PBS Frontline report of 12/8/15
[9] See Forensic Pseudoscience, op cit
[10] see Forensic Pseudoscience, op cit
[11] The Criminal Justice System Creates Incentives for False Convictions, (Criminal Justice Ethics, Vol 32, #2, 2013)
[12] Kozinski, op cit, p.viii
[13] Brady Violation Leads to Latest in String of Death Sentence Reversals, (12/14/15)
[14] Evidence of Police Dishonesty Leads to Overturned Convictions Nationwide, West, Nancy, The Crime Report (7/21/2015)
[15]Laurie Fernandez of Yale Law School, as quoted in “The Jaw-Dropping Police/Prosecutor Scandal in Orange County, Calif.”, Washington Post (7/13/2015)
[16] Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, Gross et al, Proceedings of the National Academy of Sciences, Vol. 11, #20 (2014)
[17] Prisoners in 2014, US Department of Justice (Sept. 2015)
[18] Why Innocent People Plead Guilty, Rakoff, Ted, NY Review of Books (11/20/2014)

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