Whitewashing wrongful conviction: reflecting on Making a Murderer

By Breanna Caldwell
Associate Editor, Vol. 21
Executive Editor, Vol. 22

On the off chance that you have been able to avoid the national phenomenon surrounding the Netflix documentary series, Making a Murderer, since it first aired in December 2015, I will provide a brief overview of the series before analyzing its effects on the public perception of the criminal justice system and wrongful convictions.

Brief Overview

*Spoiler Alert*

Steven Avery (“Avery”) is a white man from Wisconsin.  At 22 years old, Avery was convicted of rape and sentenced to 32 years in prison.[1]  After spending 18 years in prison,[2] Avery was exonerated with the help of the Wisconsin Innocence Project, which obtained a court order for DNA testing of hairs recovered from the rape victim at the time of the crime.[3]  The DNA evidence excluded Avery.[4]  Even more noteworthy, it linked a hair to a different person, Gregory Allen—a convicted sex offender and a possible suspect during the initial rape investigation.[5]

Avery in 1985

Throughout the documentary series, it is asserted that Avery was targeted as a suspect for the rape because his family was not well-liked in his small Wisconsin community and he had had previous run-ins with law enforcement.[6]  Nonetheless, Avery was released in 2003 after the DNA evidence pointed to Allen. He moved back to that same small community and faced more scrutiny than ever before from law enforcement officers because he had challenged their police work, reputations, and integrity.  He filed a $36 million civil suit against Manitowoc County for wrongful conviction and imprisonment.[7]  Two years later, the lawsuit was still pending when Avery was convicted in the murder of a 25-year-old woman and sentenced to life in prison.[8]  Due to his need to quickly obtain funds for his defense in the murder trial, Avery settled his lawsuit for a measly $400,000.[9]

Although there was a lot of evidence presented against Avery at trial, the documentary series repeatedly suggests—and the general consensus on the Internet and in the court of public opinion seems to be—that Avery was also framed for the murder.[10]   Avery has always maintained his innocence and claims that he was framed for the murder because key law enforcement officers in his small community were trying to seek revenge for the dismissal of Avery’s rape conviction and his corresponding lawsuit.[11]

Kathleen Zellner, an attorney that specializes in wrongful convictions,[12] and the Midwest Innocence Project have agreed to represent Avery in challenging his murder conviction.[13]  However, for the time being, he is still incarcerated and serving a life sentence.[14]

The Strengths of Making a Murderer

Unfortunately, Avery’s wrongful conviction is not unique.  Wrongful convictions occur much more often than we would like to think.  According to the National Registry of Exonerations, between 1989 and March 14, 2016, there were 1,753 exonerations.[15]  The editor of the National Registry of Exonerations, Samuel R. Gross, released an analytical report in 2012 in an effort to put the Registry statistics and the gravity of wrongful convictions in perspective.[16]  Gross states:

The most important conclusion of [the] Report is that there are far more false convictions than exonerations.  That should come as no surprise.  The essential fact about false convictions is that they are generally invisible: if we could spot them, they’d never happen in the first place.  Why would anyone suppose that the small number of miscarriages of justice that we learn about years later – like the handful of fossils of early hominids that we have discovered – is anything more than an insignificant fraction of the total?[17]

And, although Avery’s experience is not unique, the fact that his story has received extensive media coverage and was viewed by 19.3 million persons in the first 35 days after its release is unique.[18]  Unlike most other wrongful convictions, Avery’s conviction is the opposite of “invisible.”  And, as a result of Avery’s wrongful conviction being thrust onto a national stage, there has been a growing awareness that the criminal justice system is flawed and often unduly influenced by factors such as class and privilege.[19]  In that sense, the series has been a positive influence on the discourse surrounding the criminal justice system.  In order to rectify the problems with the criminal justice system, it is imperative that those problems become a part of mainstream dialogue.

The Weaknesses of Making a Murderer

It is important to note that the series has also had negative effects on the discourse surrounding the criminal justice system.  The first—and most obvious—problem with Making a Murderer is that “discussion is not enough.  We need to take a hard look at our criminal justice system – a much harder look than a 10-episode documentary allows.”[20]  It is a great feat that a documentary has inspired a national dialogue about our criminal justice system, but most of the problems with our criminal justice system run deep and beg for immediate action—not just discussion.

One of those problems—that Making a Murderer does not even touch on—is the racial bias implicit in our criminal justice system.  Before we can act on the flaws of the criminal justice system, we need to make sure that we are having the right discussions in the first place.  Although Avery’s story is very compelling, the decision to feature a white male defendant in this documentary did not pay any service to the incredibly prominent role that race plays in the criminal justice system.

In examining the 1,753 exonerations that the National Registry of Exonerations had tracked as of March 14, 2016, Blacks were exonerated at a rate greater than whites, Hispanics, or “Other” races for all crimes, except child sexual abuse.[21]  And Blacks are not only overrepresented in the exoneration stage of the criminal justice system, but throughout the entire system from initial police contact all the way through to conviction and—for the lucky few—exoneration.[22]

These racial disparities are attributable to explicit racial biases and intentional racial stereotyping, as well as to implicit racial biases.[23]  The data about wrongful convictions hammers home the impact of these biases and proves that “[j]ustice is color coded, and truly a matter of black and white.”[24]

White America is often oblivious to its privilege and the injustices that the criminal justice system has consistently inflicted on the Black community.  Many whites continue to believe the myth that the criminal justice system is just.  A 2014 NBC News/Marist Poll found that “whites are more than four times as likely as African Americans to have a great deal of confidence in police officers to treat [B]lacks and whites equally.”[25]  Yet, this belief is clearly inconsistent with the statistic from the United States Department of Justice that “1 in 3 Black male babies born in the 21st century is expected to go to jail or prison.”[26]  If “justice” was administered equally and the same statistic was released about white male babies, white America would be up in arms.  But, because the criminal justice system continues to largely ignore white America, white Americans continue to largely ignore the criminal justice system.

Making a Murderer had a chance to change that ignorance by bringing visibility to the flaws in the criminal justice system, but it failed to adequately portray the experience of the typical exoneree, a Black male.  By bringing attention to wrongful convictions on a national scale, the documentary series successfully increased national discussion about our flawed criminal justice system.  But, it was not the right discussion because it failed to acknowledge one of the main factors responsible for wrongful convictions when it chose Steven Avery, a white male from America’s heartland, as its protagonist.  The reality is that the criminal justice system is unjust and racially biased against all minorities, especially Blacks.  To make any sort of progress in our criminal justice system, we need to be having the right discussions and those discussions must include a focus on the role that race plays in our country and our criminal justice system.  Once we start having the right discussions, then we can finally start to take actions to meaningfully change our broken and biased criminal justice system.

For that reason, Making a Murderer’s whitewashing of the wrongful conviction narrative was particularly disheartening.  Moving forward, we need to use more honest and reflective narratives.

[1] The Cases: Steven Avery, Innocence Project, available at http://www.innocenceproject.org/cases-false-imprisonment/steven-avery.

[2] Heather Schwedel, What’s Really Going on in Making a Murderer? A Comprehensive Breakdown, Slate (Jan. 6, 2016 8:02AM), http://www.slate.com/blogs/browbeat/2016/01/06/making_a_murderer_plot_timeline_and_questions_breakdown.html.

[3] Supra, note 1.

[4] Supra, note 1; supra, note 2.

[5] Id.

[6] Lisa Respers France, 5 Things to know about ‘Making a Murderer,’ CNN (Jan. 7, 2016 7:41PM), http://www.cnn.com/2016/01/07/entertainment/making-a-murderer-things-to-know-feat/.

[7] Id.

[8] Supra, note 1.

[9] Supra, note 6.

[10] Id.

[11] Id.

[12] Jethro Nededog, Steven Avery just wrote a letter from jail to all ‘Making a Murderer’ supporters, Business Insider (Feb. 2, 2016), available at http://www.businessinsider.com/steven-avery-just-wrote-a-letter-from-jail-to-all-his-making-a-murderer-supporters-2016-2.

[13] FAQ: Steven Avery and Brendan Dassey Cases and “Making a Murderer,Innocence Project (Jan. 21, 2016 6:30PM), available at http://www.innocenceproject.org/news-events-exonerations/2016/faq-steven-avery-and-brendan-dassey-cases-and-making-a-murderer.

[14] Supra, note 12.

[15] Exonerations by Year: DNA and Non-DNA, The National Registry of Exonerations, University of Michigan Law School (last visited Mar. 14, 2016 5:38AM), http://www.law.umich.edu/special/exoneration/Pages/Exoneration-by-Year.aspx

[16] Samuel R. Gross & Michael Shaffer, Exonerations in the United States, 1989-2012: Report by the National Registry of Exonerations, The National Registry of Exonerations, University of Michigan Law School (June 2012), available at http://www.law.umich.edu/special/exoneration/Documents/exonerations_us_1989_2012_full_report.pdf.

[17] Id. at 3.

[18] Jason Lynch, Over 19 Million Viewers in the U.S. Watched Making a Murderer in its First 35 Days, Adweek (Feb. 11, 2016 3:03PM), http://www.adweek.com/news/television/over-8-million-viewers-us-watched-making-murderer-its-first-35-days-169602.

[19] Tom Huddleston, Junior, How true crime series are exposing America’s criminal justice system, Fortune (Feb. 11, 2016 11:21AM), available at http://fortune.com/2016/02/11/true-crime-series-oj-murderer/; see also Keith A. Findley, ‘Making a Murderer’ shows that our justice system needs a healthy dose of humility, The Washington Post (Jan. 15, 2016), available at https://www.washingtonpost.com/opinions/the-lessons-from-making-a-murderer/2016/01/15/93d9698c-baf0-11e5-829c-26ffb874a18d_story.html.

[20] Id.

[21] Supra, note 15.

[22] Edwin Grimsley, What Wrongful Convictions Teach Us About Racial Inequality, Innocence Project (Sept. 26, 2012), https://cdn1.topi.com/uploads/public_events/877/files/0930c5dbe2e6b94df0a51a8451d4f783/Innocence%20Blog_%20What%20Wrongful%20Convictions%20Teach%20Us%20About%20Racial%20Inequality.pdf.

[23] Cassandra Stubbs, Race Contributes to Wrongful Convictions, American Civil Liberties Union (Sept. 2, 2010 11:28AM), https://www.aclu.org/blog/speakeasy/race-contributes-wrongful-convictions.

[24] David A. Love, Dealing with the Racial Nature of Wrongful Convictions, The Huffington Post (Feb. 22, 2015), http://www.huffingtonpost.com/david-a-love/dealing-with-the-racial-nature-of-wrongful-convictions_b_6337850.html.

[25] Lee M. Miringoff, Barbara L. Carvalho  & Mary E. Griffith, NBC News/Marist Poll, Marist College Institute for Public Opinion (Dec. 7, 2014), available at http://maristpoll.marist.edu/wp-content/misc/usapolls/us141204/Complete%20December%207,%202014%20USA%20NBC%20News_Marist%20Poll.pdf.

[26] Author Interviews: One Lawyer’s Fight for Young Blacks and ‘Just Mercy,’ NPR (Oct. 20, 2014 3:59PM), available at http://www.npr.org/2014/10/20/356964925/one-lawyers-fight-for-young-blacks-and-just-mercy.