
Dead Certainty: How “Making a Murderer” Goes Wrong - cgoodmac
http://www.newyorker.com/magazine/2016/01/25/dead-certainty
======
felixgallo
The article focuses too much on Avery's actual guilt or innocence, in my
opinion. It's possible he murdered her. It's possible he didn't.

But what the documentary really showed me was how utterly corrupt, venal,
incompetent and evil the entire system of justice can be, from the 'court
appointed lawyers' all the way up to the sheriffs that clearly, unequivocally
framed Avery.

And it's fundamental to the principles of the legal system that the police and
the prosecution must not be permitted to do that; and that we, as a society,
must find some way to make that impossible and to punish those who violate the
trust. Even if one, or ten, or a hundred believed-murderers go free.

~~~
rayiner
I think Avery's prosecution was corrupt enough to be worth vacating on police
misconduct alone.[1] However, implicit in your comment is the premise that
process is more important than outcome. While I fully agree with that (as a
lawyer), I think ordinary peoples' view of the justice system is a bit
different.

Watch the beginning of the 1983 Michael Douglas movie, "Star Chamber." The
first scenes show two men getting away with the rape and murder of a young
boy, because the damning piece of evidence (a bloody shoe), was found in their
van pursuant to a search in violation of the 4th amendment. The audience is
supposed to be outraged by this failure of justice.

Surely you've heard the consternation about criminals "getting off on a
technicality." A lot of people view procedural protections as just that:
technicalities. It's people with that mindset reacting so negatively to this
documentary. To them, Avery's actual guilt or innocence is the important
thing. The process is just technicalities.

The same mindset makes it easy to justify police misconduct, and I imagine it
was strongly at work with Avery's jury. Once you admit the evidence excluded
in the documentary, such as Avery's prior conduct, it becomes quite reasonable
to conclude that Avery is actually guilty. At the same time, with the "planted
blood" theory seemingly debunked by the FBI test, the only blatantly obvious
police misconduct you're left with is the planted key. If you view outcome as
being more important than process, it's very easy to think of finding Avery
innocent based on the planted key as simply letting him off on a
"technicality."

[1] Not to mention the pervasive logical and legal fallacies in Ken Kratz's
statements, which left me yelling at the TV.

~~~
solutionyogi
Did you see the documentary? The FBI test and related testimony was bullshit.
This is only the second time an EDTA test was done so we have to worry about
the accuracy of it and more importantly, logic says:

1\. If EDTA is found in the blood, blood definitely came from vial. 2\. If
EDTA is not found in the blood, no conclusion can be made. It is possible that
test is not capable of testing for EDTA.

~~~
rayiner
I binge-watched the whole thing over a weekend. I don't think your logic
follows at all. If the test isn't reliable, it may well falsely indicate EDTA
is present, even if the blood didn't come from the vial.

Leaving aside the FBI test, the "hole in the vial" theory has some holes in
it, namely that a nurse was apparently ready to testify that the hole was how
she filled the vial, and doing so that way was not uncommon:
[http://www.businessinsider.com/steven-avery-blood-vial-
test-...](http://www.businessinsider.com/steven-avery-blood-vial-test-
tube-2016-1).

~~~
1024core
> I don't think your logic follows at all. If the test isn't reliable, it may
> well falsely indicate EDTA is present, even if the blood didn't come from
> the vial.

No, it's a _detection_ test. Suppose it can detect EDTA above a certain
threshold only. So it would be able say if EDTA is present _above_ that
threshold; but its inability to detect would not implay that there is no EDTA,
but just that there's insufficient EDTA to be detected. Which could be for a
variety of reasons: evaporation? Exposure to UV light?

~~~
kbenson
My understanding is that we often test for a specific subcomponent in
detection tests, since testing for the entirety of what you are looking for is
not feasible. Unfortunately that can leads to false positives by correctly
detecting the subcomponent, but it may have been provided from a different
source.

It's trivial to find examples of this, but I don't know enough about the EDTA
test to know how well they, or this reasoning, applies.

------
seibelj
Interesting article, but my opinion after seeing the documentary is that there
is enough reasonable doubt to declare Avery not guilty. Maybe he did do it,
but with all of the bullshit that happened during the investigation (the car
key in plain sight, the cop calling in the license plate days before the car
was officially found, the evidence tape cut on the blood vial, absence of
blood in the bedroom despite the bloody and vicious confession from the
nephew) the whole thing is beyond ridiculous.

~~~
tptacek
Well, the point of the article is that the documentary is structured to ensure
that's the attitude you come away from it with.

If you've listened to Serial too, the comparison is pretty stark. In every
episode, Koenig nurtures doubts about Syed's innocence, and continually
returns to the most difficult challenges to the case for his innocence.

Koenig does this for reasons beyond integrity: it's also the reason Serial is
a more _effective_ true crime story (you really want to hear the next episode
because you have no idea where the story might go, which is just not the case
for the Avery case).

For me, the facts that Ricciardi and Demos left out are damning in pretty much
the same way as the facts they reveal about misconduct in the Avery case:

* Avery is forensically tied to Halbach's car in ways that do withstand scrutiny

* Avery had repeatedly contacted Halbach, sometimes with caller ID blocked, and, despite Halbach's discomfort with him, had specifically requested that she come out to his place the day of the murder

* There is physical evidence that corroborates specific, idiosyncratic details of the story Dassey told investigators

~~~
kbenson
Yes, Serial first season engaged by laying out a larger and deeper story as it
progressed, and was driven by the audience's curiosity to see what new
evidence comes up that may change their view on previously presented evidence.
Making a Murderer seems to (I'm only 6 episodes through) feed off the
audience's impotent rage at injustice.

~~~
tptacek
I only just listened to Serial, a few weeks ago. I didn't think a true-crime
story about a random murder in Baltimore would be all that interesting. But
_holy shit_ is it well done.

Extremely strong recommend!

~~~
kbenson
The second season is interesting in how different it is. There's not a lot of
ambiguity in the same way, at least yet. It's an interesting story, but so far
it feels like an informal documentary, which is fine, but doesn't replicate
the magic of season one. I'm wondering if they are going to lay some big
reveal on us soon.

------
gizmo
The article equates prosecutorial misconduct to force a guilty sentence with
editorial choices in a documentary. Because both show "bias". In the one case
it's utterly illegal and it undermines the moral validity of the justice
system and in the other case we're talking about a simple exercise of free
speech, but apparently this distinction isn't meaningful in the eyes of the
author.

The quote in question: "The point of being scrupulous about your means is to
help insure accurate ends, whether you are trying to convict a man or
exonerate him. Ricciardi and Demos instead stack the deck to support their
case for Avery, and, as a result, wind up mirroring the entity that they are
trying to discredit."

This equivocation is morally repugnant.

The article also gets their facts wrong. They claim: "Investigators
subsequently found DNA from Avery’s perspiration on the hood latch—evidence
that would be nearly impossible to plant.". This is a fabrication. There is no
distinction between blood DNA, sweat DNA, skin DNA. DNA was found under the
hood latch, but no blood was seen. Hence a logical conjecture is that the
source is perspiration, but it could have been any other source. As for it
being hard to plant, that's laughable. Simply swipe a t-shirt or dirty sock on
any surface and it will leave DNA behind. None of Avery's finger prints were
found on the car, and finger prints ARE hard to plant. In contrast to DNA,
which IS trivial to plant if you have access to somebody's apartment.

The charge that the documentary is bad because doesn't display a clear
timeline of the events doesn't make sense, because it's the responsibility of
the prosecution to explain what happened, and they didn't have a single
narrative that was consistent with all the evidence. Which is why the
prosecution's story of what happened was completely different in Avery's and
Dassy's trials.

Juries don't believe police officers would ever lie during testimony. They
believe the police are the good guys who just want to catch the bad guys. The
public has to let go of this naive view of the world, and look at all evidence
presented during a trial with healthy skepticism. The 'Making a Murderer'
documentary teaches people to be skeptical about claims by the police, which
is a great public service.

The article closes by reiterating the terrible equivocation they made earlier.
That exposing prosecutorial misconduct is somehow only permissible in a
completely unopinionated format. The New Yorker should be ashamed for
publishing this trash.

~~~
tptacek
You're fixated on the notion that DNA recovered from epithelial cells is the
same as DNA recovered from blood. That's true, but the claim being made can
simply be: "DNA was recovered, and testing did not indicate the presence of
blood".

You might not be able to distinguish "blood DNA" from "skin DNA", but forensic
testing can identify the presence or absence of blood.

Meanwhile, the reason the "skin DNA" evidence is so compelling is that the
source of DNA the sheriff's department is alleged to have tampered with is
blood. It's not clear how they could use that blood to place DNA under the
hood of the car without it testing positive for blood.

~~~
gizmo
I'm not sure what you're getting at. There was no blood under the hood, so
obviously there was a difference source for that DNA.

The key to the car was found in Avery's room in clear sight (after it had been
searched 7 times already). The key was scrubbed clean, and only Avery's DNA
was present, but not blood. No fingerprints. At any point a piece of his
clothing could have been used (or a toothbrush) to rub some DNA on it. Same
for the car hood. Trivial to plant when you have access to somebody's DNA. At
any point during the search somebody could have picked up one of his socks,
walked to the car, rubbed it wherever and walked away.

I'm not saying it definitely happened this way, just that it would have been
easy to do for anybody with access. While the article goes to lengths to claim
that the documentary leaves out important evidence, but arguments they use to
support that claim don't hold water. Their primary argument about the hood
latch DNA contains a factual error and the assertion about planting the
evidence being 'nearly impossible' is absurd. And that is apparently the best
argument they have about the documentary being biased...

~~~
DanBC
> The key was scrubbed clean

There's a possibility that it was her spare key, not her main key.

[https://www.reddit.com/r/MakingaMurderer/comments/3z8pwn/sum...](https://www.reddit.com/r/MakingaMurderer/comments/3z8pwn/summary_of_discussion_on_the_rav4_key/)

------
solutionyogi
I agree with other comment here where I don't know if Avery is guilty or not.
However, the documentary absolutely showed how corrupt and evil the entire
justice system can be and how one is at severe disadvantage if they are
uneducated and poor.

For me, personally, the ultimate proof of injustice is how Ken proposed two
different theories in two trials. For Avery, murder was committed in garage.
For Brendan, murder was committed in the bedroom. I have learned that as per
the letter of the law, it is legal. However, by doing this, Ken Kratz has
confirmed that all he cares about is prosecution and he is not out seeking
truth/justice.

------
tyingq
What's really scary to me is that very, very few defendants actually go to
trial in the US. For a variety of troubling reasons[1], most defendants take a
plea bargain.

I would guess the risks associated with planting evidence and other misconduct
by police is pretty low when you use it to coerce a plea. There's not any sort
of venue to expose it.

[1][http://www.nybooks.com/articles/2014/11/20/why-innocent-
peop...](http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-
guilty/)

~~~
xixi77
Exactly!

This is really the biggest issue that makes the whole misconduct problem so
many times worse (judging by numbers in the article, "so many" is at least
around 97/3 ~= 30x, putting cases like the one in question here within a
margin of statistical error -- and that is not even accounting for the fact
that, as you noted, misconduct is much easier and for that reason likely to be
more common in pleaded cases). And it still stays hidden in plain sight: no
court proceedings to generate public interest, no doubt in public opinion, no
documentaries, no nothing. And indeed very little risk in case you decide to
embellish your case with a little misconduct -- after all, even if plea
bargain doesn't work, you can always skip presenting the most questionable
evidence at trial.

It is really quite disgusting how much discretion prosecution currently has in
terms of charges to bring, and the associated range of penalties.

------
chillingeffect
1\. In the American system, we _are_ biased for innocence, so there's nothing
wrong with the documentarians for operating on that assumption.

2\. The documentarians omit, while the police fabricate. The documentarians
are not mirroring the entity they set out to indict.

3\. 3 to 4 days is not a terribly long time for a jury to deliberate on a case
like this.

~~~
bryanlarsen
In the American system, there are many biases for guilt that counteract the
explicit "beyond a reasonable doubt" bias.

For example:

\- prosecution presents first. (Google Anchoring, Confirmation Bias)

\- police are allowed to lie to witnesses to extract confessions, along with
many other psychological tricks

\- prosecutorial immunity

\- election of prosecutors based on conviction rate

And that's just the tip of the iceberg.

~~~
dpark
Prosecution presents first so that defense can rebut. You want prosecution to
go first so that when they are done, defense can dismantle the prosecution's
case effectively. If you let defense present first, what are they even going
to say? "My client didn't do it. He was at home with his wife, who can
corroborate. Uh, I guess the defense rests."

There are lots of problems with our legal system. This isn't one of them.

~~~
pdabbadabba
You're exactly right--if the defense and prosecution each get one chance to
present their evidence, it makes the most sense, and is most defendant
friendly, for the defense to go second.

But if we're thinking more broadly about how the system could be reformed, we
should remember that there are more than two options here. For example, The
defense could present first and then have an opportunity for rebuttal after
the prosecution presents its case. I'm not sure this would be near the top of
my list of proposed criminal justice reforms, though.

~~~
Retric
Each side does get to show opening remarks before presenting the bulk of
evidence. And, each side can cross examine witnesses which create much more of
a back and forth than you might think.

IMO, the real bias is expert witnesses get preselected and paid, so they tend
to favor a specific side. This has allowed a lot of pseudoscience to be shown
a trial _and enter the literature._ Forensic science is rarely validated
because that’s just not its job.

Consider, two people that compare hair samples, but one always supports the
prosecutors case. Now, which one do you think gets more work? When someone
says something is inconclusive that's it they not going to get paid to show up
at the trial just there initial 'investigation'.

~~~
dpark
> _Forensic science is rarely validated because that’s just not its job._

And this is as terrifying as the fact that experts are selected specifically
to support the side that pays them. Expert witnesses should probably be
selected and paid by the court, which would at least help a bit. But the
pseudoscience stuff horrifies me. The whole hair comparison thing is bunk and
a lot of people were put in jail on the supposed strength of this "science".
Ditto for so many other forensic "sciences".

[https://www.washingtonpost.com/local/crime/fbi-overstated-
fo...](https://www.washingtonpost.com/local/crime/fbi-overstated-forensic-
hair-matches-in-nearly-all-criminal-trials-for-
decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html)

------
stillsut
What's the _real_ story behind the following:

The short haired sheriff who called in Theresa's licence plate + Make/Model
two days before it was discovered...

+

The licence plates were discovered separately hidden from the car

~~~
fnordfnordfnord
The only sort of maybe non-sketchy theory I have is that the deputy had that
information from a flyer, or a BOLO (Be On the Look Out), or that it had
somehow been transmitted to him by people searching for the Theresa, and he
wanted to confirm it. It's a pretty thin sort of maybe justification. I can't
think of why he would need it confirmed.

------
1024core
What a load of drivel.

There is a set of writers who will always (always) take the contrarian view,
just to drive clicks.

She spends the first 4 paragraphs talking about Perry Mason. And then just a
couple, talking about Avery.

Here's the problem with the case, as I saw it (I watched the entire 10
episodes over a week). The only physical evidence tying Avery to the murder
was collected by the pair of detectives who least of everyone else were
supposed to be there. How convenient!

Secondly, to the evidence itself: if Avery did all the throat-slashing and
raping, where is the evidence?? Surely they should find _ONE_ speck of blood,
or hair or skin cells or something??? Avery is such a genius that he can wipe
all evidence of this massacre from a carpeted, cluttered bedroom (so badly
cluttered that they couldn't find the key, sitting in plain sight, in 4
previous tries!), while leaving his own DNA around everywhere?? Same for the
garage, where apparently she was shot: no blood, nothing. But there was blood
from various deer carcasses of the past!

And don't even get me started on the key! His DNA is on it ... but not hers,
even though she drove it?!? And why is it the valet key? And how come the two
suspect detectives immediately recognized it was the "right" key, even though
they were in a f'in junkyard with a 1000 vehicles around?

And his blood in the vehicle: even if you accept that it's his blood, where
are the fingerprints?? Oh right: when it came to fingerprints, he was wearing
a glove. Which, conveniently once again, allowed the blood to seep through in
the right places.

The author uses Brendan's statement that he helped his uncle put the body in
the RAV4, hence the "sweat DNA", _AFTER_ admitting that the confession was
fake! Anyone who has watched the "confession" would be left with boiling rage
at the interrogators.

And she doesn't mention Len Kachinsky, the public "defender" who effectively
railroaded Brendan?

I could go on and on, but this article is pure drivel.

------
mekal
I think the real underlying problem here isn't film makers misleading people
(which i agree is very annoying) its people believing what they see on tv and
then acting on it (which is more annoying).

So if you find yourself typing up a nasty email to a sheriff or whoever bc of
something you saw on a tv show...please realize you are being a moron and stop
typing...save as draft. Then, if you're willing to invest the time, do some
real research and if you are still convinced your outrage is justified...by
all means carry on with the nasty email.

This way film makers can make their money, people can be entertained and/or
inspired to better things, and nobody gets assaulted by an angry mob of stupid
people.

------
stult
>But neither “Serial” (which is otherwise notable for its thoroughness) nor
“Making a Murderer” ever addresses the question of what rights and
considerations should be extended to victims of violent crime, and under what
circumstances those might justifiably be suspended. Instead, both creators and
viewers tacitly dismiss the pain caused by such shows as collateral damage,
unfortunate but unavoidable. Here, too, the end is taken to justify the means;
someone else’s anguish comes to seem like a trifling price to pay for the
greater cause a documentary claims to serve.

Aww come the hell on! The public has a very strong interest in monitoring the
criminal justice system. We cannot do that without knowledge of the crimes and
the victims. Yes, it sucks for them. Crime is bad. But the public cannot hope
to establish and direct a justice system capable of deterring crime without
learning facts about actual prosecutions, which unfortunately includes
information about the victim and what was done to them.

Besides, the vast majority (possibly all, IIRC) of the footage of Hallbach's
family consisted of public interviews of her brother. You can't repeatedly and
voluntarily thrust yourself into the media spotlight and then cry foul when
people use that footage.

What serious journalist really thinks this is a reasonable argument to make?
Are we supposed to turn a blind eye to police corruption and inadequate due
process because it makes one person and their family uncomfortable?

------
mesozoic
Throughout this whole article all I could think of is how was Erle Stanley
Gardner writing in a magazine that ran from 1882 to 1891. when he was born in
1889. He was a very advanced toddler I suppose.

~~~
notdonspaulding
It's poorly-worded in the article, but it does mention that ESG only wrote his
column for a subset (~10 years) of that time.

But maybe you saw that and were just making a joke? In which case, I'll just
<whoosh> myself.

~~~
mesozoic
No I was and still am confused about it actually.

~~~
kbenson
> Argosy began in 1882 ... and ceased publication ninety-six years later ...
> but for ten years in between it was the home of a true-crime column by Erle
> Stanley Gardner.

> To help investigate his cases, Gardner assembled a committee of crime
> experts, including a private detective, a handwriting analyst, a former
> prison warden, and a homicide specialist with degrees in both medicine and
> law. They examined dozens of cases between September of 1948 and October of
> 1958

So, the magazine was active from 1892 to ~1986. At some point, which appears
to be between 1948 and 1958, Erle Stanley Gardner headed the feature in
question.

------
rmacleod
felixgallo - this is the point I've been making to all my friends and family -
the no 1. point of the documentary was to shine a light on the broken system
itself... the fact that everyone is talking about the case shows that ppl
really don't care or don't get it...

~~~
tptacek
Part of the point of the article is that people don't care because the
creators of the series don't want them to; the documentary isn't structured to
raise those questions.

------
1024core
One point that is glossed over, and that destroys the whole foundation of the
article: the filmmakers started filming the doc 12 years ago when he was
acquitted after the DNA test. They just naturally followed him around, and
happened to be at the right place at the right time when the murder charges
came along.

So no, the makers did not just wake up one day after the conviction and tried
to make him innocent. They were there the whole time.

