Making Murderers

The public outrage that has resulted from shows like Making a Murderer will be remembered as the tipping point when we finally decided to take seriously the need to fix the system. Change will only happen when we demand it. How many more innocent lives will be ruined before we do?
01/25/2016 07:08 pm ET Updated Jan 25, 2017

The Netflix series Making a Murderer has captivated viewers, sparking outrage around the dubious and possible wrongful convictions of Steven Avery and his nephew Brendan Dassey for the 2005 murder of Teresa Halbach.

As a founding board member and longtime supporter of the Innocence Project and other criminal justice reform organizations, I've gotten to know many people who served lengthy sentences for crimes they didn't commit. (Consequently, the opinions expressed are mine and not the Innocence Project's.) While every exoneree's experience is unique, I am repeatedly surprised at how well these men and women have dealt with the horror of having served hard time for a crime they didn't commit. While there are certainly emotional scars, these brave men and women have impressed me with their ability to heal and lead productive lives.

That's what makes the Avery case such an outlier. There is no question that he is absolutely innocent of the 1985 rape of Penny Beerntsen. Avery was represented by the Wisconsin Innocence Project (independent from the Innocence Project), which obtained DNA testing that not only proved Avery's innocence after he served 18 years but also identified convicted sex offender Gregory Allen as the true perpetrator. Yet shortly after his exoneration, Avery made headlines again as the suspect in the murder of Halbach, a crime for which he and Dassey were eventually convicted. In their documentary, filmmakers Laura Ricciardi and Moira Demos make a compelling argument that Avery is very likely innocent of that crime too.

As we saw with Serial and HBO's The Jinx, Making a Murderer has exposed the fallibility of the criminal justice system. While it is impossible to know whether Avery and Dassey are innocent solely by the documentary, it raises many issues that we see time and again in the cases of those wrongly convicted.

Consider the police interrogation tactics used against Dassey, who was just 16 and according to school records had an IQ less than 70: the 16-year-old was questioned repeatedly without an attorney or guardian present, and it is clear from the videotaped interrogation that the officers' goal was to get a confession rather than help them solve a murder.

While inconceivable to many people, false confessions have been a key factor in more than a quarter of the 337 DNA exonerations nationwide. Luckily Wisconsin, where Dassey was arrested, requires that interrogations be recorded in full. Without that law, there would likely be no footage of Dassey's alleged confession, making it impossible to prove how he was treated by police. While recording interrogations isn't an absolute guarantee against wrongful convictions, it creates a record for later review by the jury and courts. Yet 31 states, including New York, don't mandate the recording of interrogations. Did we learn nothing from the wrongful convictions in the case of the Central Park Five?

Making a Murderer also paints a bleak picture of the criminal defense bar. While Avery was able to afford lawyers who did a very admirable job, his nephew had to rely on the attorney provided by the state. Exoneration cases are filled with stories of attorneys who were asleep, drunk, incompetent or simply too overburdened. An Innocence Project report on the first 255 DNA exonerations revealed that claims of ineffective assistance were raised in about 1 in 5 of the DNA exonerations. Yet there are no meaningful systems to track ineffective assistance, much less do anything about the bad lawyers, and many state public defender organizations are woefully underfunded.

Yet what has truly captured the public's attention is undoubtedly the alleged police and prosecutorial misconduct at the heart of the documentary. The allegations that are put forth are indeed very serious -- that police framed Avery and that the prosecutor was so caught up in securing a conviction that he failed in his duty to seek the truth. Here again there is no accountability. Many police departments are subject to civilian review boards, but they almost never find the police at fault. While police can be sued civilly for violating defendant's constitutional rights, the U.S. Supreme Court has given prosecutors almost complete immunity from civil liability, even for intentional misconduct that results in wrongful convictions.

I am hopeful that the public outrage that has resulted from these shows will be remembered as the tipping point when we finally decided to take seriously the need to fix the system. Change will only happen when we demand it. How many more innocent lives will be ruined before we do?

Jason Flom is the CEO of Lava Records, and a founding board member of the Innocence Project and on the boards of Families Against Mandatory Minimums, the Legal Action Center and The Drug Policy Alliance.