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Whether the wildly popular Netflix documentary, Making a Murderer, offers a balanced depiction of Steven Avery's trial for first degree intentional homicide is debatable. Nevertheless, there are many people-- including some celebrities-- who fervently believe that Avery is innocent, and that his trial was unfair. They are at least half right. Avery's trial was, in some respects, unfair.
What made Making a Murderer so compelling to so many people, I think, is the fact that the average Joe finally got a glimpse behind the curtain of what the United States Supreme Court has called the "competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10 (1948) Many people were appalled at what they saw. Most people are content to never see exactly how the criminal justice hot dogs are made.
For criminal defense lawyers, though, what we saw in Making a Murderer is pretty much business as usual for law enforcement. The only difference is that it was all compiled in a ten part series broadcast to millions of people on Netflix. But, rest assured, Brendan Dassey is not the first person of limited intellect who has been made to confess to involvement in a homicide in words and phrases fed to him by his police interrogators. I once represented a young man whose IQ was measured at 57. Under police interrogation, he "confessed" to a homicide. He was acquitted of the charges though, only because I was able to discover that the police detective who questioned him also questioned another suspect about the homicide. The questioning of this second suspect resulted in a "confession" that was reported in almost identical language to my client's purported confession. This was before interrogations were required to be audio recorded. Every criminal defense lawyer has dozens of tales of similar police corruption.
This, of course, ties in neatly with the rash of police shootings of unarmed citizens that we have witnessed over the past several years. People may ask themselves, "Why do police officers do such things?" The answer, of course, is that all power corrupts, and absolute power corrupts absolutely. The officers involved in these shootings have come to believe that they are beyond any reasonable restraint. They can do what they want to do.
The sad truth of how officers come to such a belief is rarely spoken. It is because they have been in court maybe hundreds of times, sworn to tell the truth, the whole truth, and nothing but the truth, and then they lied about what happened. Nearly all the time, the officer's version of the "facts" is blithely, and unquestioningly accepted by judges and juries eager to side with the "good guys." Whenever the police testimony differs from the testimony of other witnesses, the prosecutor will systematically urge the jury to accept the police version-- even if it seems entirely far-fetched-- because the officers are "trained and experienced in law enforcement." This is a dog-whistle phrase intended to convey to the jury that we-- the state- are the good guys. In the news conferences during the Avery trial, it was obvious that the prosecutors were sincerely affronted by the defense lawyers' suggestions that, perhaps, the police witnesses were not telling the truth.
The point of this article is not to unfairly disparage police officers. Law enforcement is an extremely difficult and dangerous occupation. It is also essential in every community. Rather, the point of this article is to encourage those who serve as fact-finders in criminal cases to recognize the fact that law enforcement officers are no more or less credible than any other witness. Scrutinize the testimony of police officers in the same manner that you scrutinize the testimony of any other witness. Only in this way will law enforcement eventually disabused of the dangerous belief that what they say in court will accepted no matter what.
If the widespread popularity of Making a Murderer prompts average citizens, when called upon to serve as jurors, to fully and passionately discharge their duty to examine and scrutinize the state's evidence, then Making a Murderer is truly an important series.
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