The Evasions of Making a Murderer, Parts 1 and 2
Pound for pound, Making a Murderer 2 must be the most scandalously dishonest and groundbreakingly boring American documentary ever made. Even if it had lasted for only two hours, it still would have been a hot contender for that title. But to spend ten more hours protesting the innocence of the incredibly guilty Steven Avery is a surreal, almost insane exercise in tedium, impertinence and delusion. One has heard of tantric sex. This is tantric denialism.
Making a Murderer 1 was a deeply deceptive piece of work too; but at least it was entertaining. That time around, the film-makers had an almost unbelievable story to tell; and there were places, in that first series, where they could afford to be straightforwardly truthful for whole minutes at a stretch. Their narrative began in Manitowoc County, Wisconsin, in 1985, when a woman named Penny Beerntsen was brutally raped on a Lake Michigan beach. In her hospital bed, Beerntsen was shown a set of mug shots. She identified one face as the face of her attacker. The face belonged to a man named Steven Avery, a semi-literate no-hoper and petty criminal whose family ran the local auto wrecking yard.
There was no physical evidence against Avery, and he staunchly protested his innocence. But at his trial, the most compelling testimony came from the victim, who swore that Avery was her attacker. Found guilty, Avery was sentenced to 32 years in prison. He soon exhausted his appeals, and looked doomed to serve out the rest of his sentence. But in 2002, after spending 18 years in prison, Avery was exonerated with the help of the Wisconsin Innocence Project, which used DNA analysis to establish that Penny Beerntsen’s actual rapist had been another man altogether, who happened to bear a strong physical resemblance to Avery. Released, Avery returned home, became a minor local celebrity, and set about suing the County for $36 million. Meanwhile Beerntsen, mortified by the size and consequences of her error, apologized to Avery, and campaigned publicly to raise awareness about the fallibility of eyewitness memory.
Shortly after Avery launched his lawsuit, his case took a stunning and awful turn. A young woman named Teresa Halbach went to the Avery Auto Yard to photograph a vehicle for a sales catalog, and she never came back. A few days later, her car was found in a remote part of the Avery lot. Inside it were traces of her blood and of Steven Avery’s. In a burn pit in Avery’s backyard, Teresa’s charred remains were discovered, along with fragments of her clothing. Avery was duly charged with her murder. His nephew, Brendan Dassey – a sixteen year old with the mental capacity of a far younger child – was charged with murder too, largely on the basis of a problematic confession. Both Avery and Dassey were ultimately found guilty, and both received life sentences.
The original Making a Murderer had a lot of material to work with, then. The film-makers had access to footage from both Avery’s and Dassey’s trials, and they used it generously, if selectively. The series lasted ten hours. I was one of those who binged it in a matter of days. Netflix was relatively new in Australia then; I urged my friends to subscribe, if only to check out Making a Murderer. There was no doubting that the show had craft, I thought; you had to admire the way it kept delivering cliff-hanger after cliff-hanger, so that you couldn’t not keep watching.
But the show discouraged critical thought in several
ways. Not wanting to hear any spoilers, you carefully refrained from Googling
the case until the show was over. When you finally did – if you did – you were
able to discover that the show, for all its length, had omitted a vast amount
of pertinent information.
Consider, to begin with, the question of Brendan
Dassey’s long videotaped confession. According to the show, this confession was
simply invalid and untrue; it was bullied out of him, and Dassey had merely said what
the police wanted to hear. That is certainly possible; but other readings are
possible too. It is possible that, even if the confession was coerced in the
legal sense, it was still either partly or fully accurate. And if the
confession was accurate, it suggested
that Dassey was at the very worst a peripheral participant in the crime,
manipulated into complicity by his horrible uncle. If that was so, you could mount
an argument that Dassey, although guilty, did not deserve his life sentence.
To say all this another way, the Dassey question is a
complicated one. A reasonable person, if permitted to view his confession in full,
might come to one of several possible conclusions about it. (This explains why
it has been the subject of so many successful legal appeals and reversals over
the years.) But the film-makers carefully rationed the interrogation footage in
a way that headed off all possible conclusions except one. Over the course of
both seasons, they repeatedly showed the parts of Dassey’s confession that made
him look good, and never showed the parts that made him look bad. And the parts
that make him look bad make him look very
bad. To see those portions of Dassey’s confession, though, you had to surf the
web. But why did you have to do that? Wasn’t the film meant to be all about the
case? It certainly felt as if it was.
So why omit that part? If Dassey was wholly innocent – as the film never got
tired of claiming – then why were the film-makers so afraid of presenting the
evidence in its entirety? If the jury made such a howling mistake, why not let
the audience see everything that the jury saw, or at least a balanced sample of
it? Here as elsewhere, the show avoided taking the hard, adult measure of tackling
the evidence head-on. Instead it took the childish short-cut of excising all
the nasty bits that might have made you disagree with the film-makers’
conclusions. When, after the release of series one, the directors were criticized for their tendentiousness, they hotly replied that of course their film omitted certain footage, since it was designed
to present a “point of view” rather than a complete picture of the truth. This
was bad luck for any audience member who had been naïve enough to expect
something like objectivity from the show. Such viewers effectively wound up
getting duped.
But anyway, the show’s leniency towards Brendan Dassey
was mild, compared with the contortions it was willing to engage in on Steven Avery’s
behalf. In real life, the evidence against Avery was overwhelming. On the night
of Teresa Halbach’s disappearance, he lit a huge bonfire in his back yard. Remnants
of her bones and teeth were later found in that burn pit. In a burn barrel
located elsewhere on his property, the torched remains of her phone, her camera,
and the contents of her wallet were discovered. A bullet fragment with her DNA
on it was found in his garage. Ballistics analysis proved that the bullet had
been fired from Avery’s gun. Either the man was guilty, or he was the victim of
a vast stitch-up.
Dutifully, Avery’s defense team argued, at his trial,
that he had been framed. But there were elements of Avery’s behavior that could
not be easily be squared with any “framing” narrative. Three weeks before the
crime, he had called Teresa out to his property to photograph a different car,
and had alarmed her by answering his door wearing only a towel. After that, Teresa
was wary of visiting Avery’s home again. But he lured her back to the property,
on the day of her disappearance, by means of an elaborate if feeble-minded ruse.
First he persuaded his sister, against her will, to list her car for sale; then
he telephoned Teresa’s business and arranged for her to come and photograph the
vehicle, booking the appointment under his sister’s name, and supplying her address,
which was located next-door to his own. On the afternoon of Teresa’s
disappearance, before her arrival, Avery twice called her phone using a feature
that disguised his own number. Over the next few days, he offered conflicting stories about his interactions with Teresa that afternoon. He said she
had never turned up. He said she had turned up but he had never spoken to her.
He said she had turned up and they had exchanged small talk. So if Avery was indeed framed for Teresa’s murder, whoever framed him had a few uncanny strokes of
good fortune. First of all, Avery happened to have been actively stalking Teresa before
the crime. And then, immediately after it, he started behaving exactly like a man who
had something to hide.
At no point in Making
a Murderer is all this evidence is presented to you coherently, at the same
time, in its totality. The film-makers never have the courage or the integrity to
admit that the case against Avery was solid and compelling. Indeed, it is
conceivable that they are so deluded that they don’t even grasp that fact. The
film takes you on an entirely inverted tour of reality: it spends an eternity dwelling
on tiny anomalies (why were there blood flakes
on the carpet of Teresa’s car, as opposed to blood drops?) while simply never mentioning some of the most
salient elements of the prosecution case. Making
a Murderer is an abject piece of defense propaganda, and it conducts itself
exactly the way defense attorneys do when their clients are guilty. It attacks
the evidence in guerrilla fashion, in an endlessly picky and piecemeal and
peripheral way. It keeps the focus tight and narrow; it never pulls back and
lets you see the full picture. It would be one thing if the film was just
one-sided. But the side it takes is manifestly the wrong one, the untrue one. If
you didn’t know it to start with, you can tell from the way the film is constantly
clutching at straws, ready to posit any answer except the one that is staring it
in the face.
Old-school documentaries had narrators, giving you a voice-of-God
perspective. These days, that approach is out. These days you get a mosaic of
different talking heads, presenting their various points of view. In Making a Murderer, the points of view
are not all that various. Most of the film’s subjects speak for Avery or Dassey.
The film-makers don’t speak at all, which isn’t unusual. But they don’t seem to
think either. There seems to be no guiding intelligence, no critical judgment,
no readiness to apply skepticism to both sides of the argument. By and large
the film-makers just point the cameras at the defense lawyers and let them run
the show. The film treats the defense case as if it were simply the truth. There
is no fact-checking mechanism in the film; no text appears on the screen to
offer a corrective, when somebody on the defense team says something untrue. Avery’s
lawyers must have been amazed when they encountered credulity on such a scale. There
is a memorable scene in the first series when the defense team finds a vial of
Avery’s blood that has been sitting in police custody since his earlier trial. The
defense theory du jour is that the
police, in order to plant Avery’s blood in all those incriminating places, must
have extracted a sample from this vial. And when the defense lawyer removes the
vial from the box of evidence, and holds it up to the camera, the rubber stopper
at the end turns out to have a visible needle-hole in it. Incredible! Cliffhanger.
Roll credits.
You need to go beyond the film – you need to surf the
web, or read a book, or know something about how pathology labs work – to know
that it is normal for such stoppers to have holes in them. Indeed, that
particular hole was almost certainly made when Avery’s blood was put into the vial. Avery’s lawyer
probably knew this, but wasn’t about to admit it on camera. Nor did the
film-makers have any good motive to investigate this question for themselves.
Why ruin a perfectly good “point of view” slam-dunk? And why admit that the defense never pursued the matter at trial?
But that was mere omission. The series wasn’t above perpetrating
some outright distortions too. It made an endless deal about Teresa Halbach’s ignition key, which was found in Avery’s bedroom, smeared with
his DNA, after several police searches of his trailer. In real life, the key turned
up on the floor behind one of Avery’s cabinets, having evidently slipped out of
the gap between its frame and its thin rear panel after an especially aggressive toss of
the room. The police quite properly photographed the key as they had found it: lying on the carpet near the wall, with the cabinet pushed out of the way. But then the film-makers,
in an effort to sustain their framing narrative, repeatedly displayed this
image out of context: as if the police had made the insane and self-defeating claim
that the key was sitting out in the open all along, where no genuine previous search could possibly have missed it. This was utter bad faith. At such moments the documentary, faced by no
opposing counsel, was able to twist the evidence in ways that the defense, at
Avery’s trial, had never dared.
If the police did frame Avery, they must also have
murdered the unfortunate Teresa Halbach. Or maybe they just knew who the real
killer was, but knowingly let the guy go free. Either way, such a conspiracy would
be unprecedented in the annals of American justice. But Making a Murderer smudged the contours of reality until this
ludicrous scenario seemed plausible, even run-of-the-mill. After a while, your
brain started to melt under the sheer weight of the defense-lawyer logic.
Anything began to seem possible. The camera dwelt eerily on the faces of the local
cops, while sinister music cues played on the soundtrack. The show sucked you
into a fantastic alternate America in which “they” routinely do things like frame
innocent men for sex murders in order to make nuisance lawsuits go away. Not
that the film encouraged you to think very hard about how the cops got Teresa’s
charred remains into Avery’s backyard. Did they burn the body off-site, and
then slyly transfer all her bones into the selfsame pit in which Avery, by a
fairly startling coincidence, happened to light his own moronic inferno on the
night of the disappearance? Or did the cops stage a supplementary blaze in Avery’s
yard without his noticing? And as long as they were engaged in this orgy of
illegality, why didn’t they plant an item or two of physical evidence implicating
Brendan Dassey, so as to bolster that shaky confession of his? Typically, the
film let the defense get away with being hazy on these large points, while
demanding that the prosecution be sub-atomically precise about even the most peripheral elements of its case.
At this point one must draw a distinction between the
ethics of a lawyer, on the one hand, and those of a journalist or film-maker on
the other. A defense lawyer is supposed to stick up for his or her client, no
matter what the facts say. Defense attorneys are obliged to assume or imagine that their client is innocent; and when
their client is guilty, they are obliged to acquire a giant blind spot with
respect to the evidence. They are also allowed to employ, inside a courtroom,
tactics and arguments that would strike us as unsavory, or even delusional, if
employed in the wider world.
But when a lawyer steps out of the courtroom, and starts
addressing his or her claims to a movie camera, he or she may not be all that
different from an ordinary liar. Certainly a self-respecting journalist would
be a fool to take any such claims at face value. Is that what the directors of Making a Murderer are, though? Journalists?
Or are they entertainers? Or are they activists? Or are they semi-official members
of the Avery defense team? Suddenly a new genre of film and podcast has sprung
up in which nobody even seems to try, any more, to give a balanced and accurate
picture of reality. Cherry-picking and bad faith are no longer viewed as wrong;
they may even be the new norm. For the brave new film-maker, there seems to be
no such thing as objectivity, even as an ideal. There is only argument; and if
you are not on one side of it, you must be on the other.
I remember having an argument of my own about Making a Murderer, shortly after the
show was released. A friend wouldn’t accept my contention that Steven Avery
was, in the light of all the evidence, patently guilty. It wasn’t possible, she
said. She simply couldn’t believe that the film-makers would have manipulated
her to that extent. And she was right. It was unbelievable. But it happened. The
film abused the viewer’s trust. It exploited our natural tendency, as human
beings, to believe what other human beings tell us. This is how civilization
works. All other things being equal, we don’t expect that acquaintances or even
strangers will flat-out lie to us; and we certainly don’t imagine that a film-maker
will devote ten long hours to the project of virtuosically concealing the truth
from us. But this is what conspiracy theorists do. They deceive us, having
sometimes taken the preliminary measure of deceiving themselves. This practice
becomes especially revolting when the conspiracist claims to be striking a blow
for justice. There is no justice without truth. And Making a Murderer had an extremely compromised commitment to the
truth. To find that out, however, you had to go beyond the film. You had to do
your own research. Is this what we must always do now? Must we laboriously check up on every single documentary we
see, on the assumption that we may well have been deceived? This is a
depressing and time-consuming chore. But it is becoming steadily more
necessary.
Somewhere near the start of Making a Murderer 2, there is a promising scene in which the
directors pays something slightly more than mere lip-service to the memory of Teresa
Halbach. For about two minutes, you get the sense that they have had a radical
change of heart (and of brain); perhaps they have registered the complaints of
their critics, and are about to provide a more rounded account of the case. And
then somebody from the denialist team throws in the inevitable line: if the
Halbach family really wants justice for Teresa, they deserve to know who really
killed her. So off we go again. Never mind that the family already knows who killed her. The problem is that the film-makers
never will, since they have blinded themselves from the start to the obvious
truth …
This time around, Steven Avery has a new attorney: the
formidable, and formidably boring, Kathleen Zellner. It isn’t clear whether
Netflix paid Zellner for her services or whether she is working pro bono. But
if she wanted to get her face on TV for hours at a stretch, she has been lavishly
rewarded. Not far into episode one, it starts to become clear that the new
show’s chief mission is to be very, very long: to be another 10-episode
tentpole, whether the material warrants that duration or not. This is longform stuff
all right: all length, and no form. There is no craft any more; there is just
product. The directors stay with Zellner’s monologues for so long that even she
appears to be getting bored with herself. The camera watches on, with
slack-jawed credulity, while her defense team throws theory after theory at the
wall, to see what might stick. In episode two, Zellner and her blood expert go
to great lengths to replicate, at least to their own satisfaction, the spatter
pattern found on the rear door of Teresa Halbach’s RAV4. They conclude, as
nobody else has previously concluded, that Teresa must have been struck by a
blunt object in the vicinity of that door. It isn’t immediately clear why we
spend so much time on this. But a few scenes later we find ourselves in the
state penitentiary, visiting Steven Avery in the flesh, for the first and only
time in this series. Zellner has arranged for Avery to be hooked up to a fancy new
kind of lie-detector. And the machine’s operator asks Avery a strangely
specific question. Did he strike Teresa’s head near the rear door of the RAV4?
Avery says no; and the operator gravely announces that he isn’t lying. This
result, he tells Avery, is “very powerful evidence that you are innocent of the
crime.” But it isn’t. It is evidence
that Avery is innocent of one particular scenario, which has been carefully contrived
by Zellner and her blood expert. Naturally, the film makers do not intervene to
insist on this distinction. Zellner, you start to feel, must have seen the
first series. She knows that this isn’t the sort of show in which the
film-makers talk back, or even want to.
Zellner presents the lie-detector stuff as a
triumphant breakthrough. She and her lie-detecting expert spent two whole days examining
Avery, she tells us. All up, Avery spent thirteen hours hooked to the machine. This
sounds impressive, until you reflect that Zellner obviously conducted the bulk
of this lie-detecting in private, away from the cameras. (It would be a rash
attorney indeed who gave her client a cold lie-detector test in front of a
movie camera.) And after all that lie-detecting, the most impressive feat Avery
can perform, for the benefit of the cameras, is to answer this one suspiciously
narrow question. For some odd reason, Zellner’s lie-detecting guru does not see
fit to ask Avery if he raped and murdered Teresa Halbach, or burned her body in
his yard. Nor do the film-makers say: As
long as you’ve got him hooked up to that thing, would you care to ask him a few
questions on our behalf? (Unless they are completely delusional, they would
be as scared of the answers as Zellner is.) No. I started bracing myself for a
long eight hours, after this scene had played itself out. Plainly, Zellner
would be allowed to get away with performing any old lawyers’ trick for the
cameras. And it would be the job of the audience to catch her out – or not.
It would be paranoid,
perhaps, to suggest that the film-makers promised Zellner, before she became
involved in the project, that they would not contest a solitary word she said. It
is more likely that the arrangement evolved naturally. The film-makers needed Zellner,
and she needed the film-makers. Together, they are locked in a dance of denialism.
There is a sequence in episode seven that captures this dance in action, and showcases
the film’s chronic tendency – borrowed from the defense attorneys’ playbook – to
deceive you without technically lying to you. The sequence begins when we find ourselves
watching archival footage of the prosecutor Ken Kratz, offering a quick-fire description
of the way Avery lured Teresa to his property on the day of the crime. For some reason the archival Kratz is being allowed, albeit
briefly, to lay out one of the strongest elements of the prosecution case. Clearly, something must be afoot. This is not the sort of film in which you are presented with such information for its own sake, so that you can make up your mind one way or the other. No: the
directors only ever air such anti-Avery material when they have hostile intent. When they let you
hear the prosecutor speak, it is only because they are about to shoot him down
– or think they are about to. You
brace yourself, then. Does Zellner have some new fact that will put a dent in Kratz’s
story? If she does, this will finally be real news, as distinct from fake. This
might be something that will really change your mind.
Sure enough, Kratz is promptly hooked from the stage, and Zellner is wheeled on to deliver her would-be takedown of his claims, in a voice dripping with scorn. But listen carefully to what she says:
While Zellner speaks, we are shown court documents and phone records that prove she isn’t lying. And indeed she isn’t. She is just being grossly misleading, and deliberately illogical. Barb Janda is the name of Avery’s sister, who lived next door to him on Avery Rd. So yes, Teresa knew that she was going, in a general sense, to the Averys’. Obviously she did. How else did she get there? The point is that she thought she was going to the house next door to Steven’s. And the question is why Steven, when setting up the appointment through Auto Trader, supplied that next-door address rather than his own, and took the odd measure of posing as his own sister, sealing the ruse by giving only her first initial. The answer, as the prosecution alleged, was that Avery had alarmed Teresa, on her visit of October 10, by answering his door in a towel, so that she was reluctant to go back there. So yes, Avery had her cell number. And yes, Teresa had been comfortable enough to give Avery that number – prior to October 10. But Avery obviously knew that he could no longer use it.
So Zellner’s whole monologue is a kind of pseudo-rebuttal. It sounds kind of impressive, but it completely skates around the damning bits of the prosecution narrative. After all these years, Zellner still can’t refute the fact that Avery, in setting up the appointment, behaved deceptively. All she can do is blow smoke, and she knows it. But who is she blowing smoke at? Who is she trying to fool? She is not limbering up to fool the legal system. This particular argument, such as it is, is far too feeble to be put into any legal filing. Nor can she be trying to deceive the film-makers. It is inconceivable that they don’t know the basic elements of the towel story, after following the case for more than ten years. But what Zellner obviously does know, by this point in proceedings, is that the film-makers are not in the business of challenging anything she says, even when they know it is false. She knows that her smoke will be allowed to drift straight on past them and out of the screen: at us. It’s us she’s trying to fool: us on our couches, strapped in for our viewing marathons, ready to be entertained, and ready to believe that something that sounds so much like a real argument probably is one. And the film-makers simply lie down and let her do it. They let her pseudo-rebuttal stream out to the world unchallenged, supporting documents and all, precisely as if it is a real and devastating takedown of Kratz, instead of a limp failure to address his claims. Wittingly or unwittingly (or semi-wittingly), the film-makers are playing exactly the same game as Zellner. They are out to fool the public too.
Early in the second series, Zellner promises that she will deliver, before we are through, a full “narrative” of Avery’s innocence. This sounds promising. Finally, we will get to know who did murder Teresa Halbach, if Steven Avery didn’t. Zellner looks very confident when she says this. (She looks very confident when she says everything.) But what she says amounts to an admission that there is still, after all this time, no good reason to believe that Steven Avery is innocent. The framed-by-the-cops scenario desperately improvised by his first defense team is history. Nobody bought it – except the film-makers, and most of the people who watched their first series. At any rate, it must now be scrapped. All the reasons the first film gave us to believe in Avery’s innocence have evaporated. But if we are patient, if we sit tight, Zellner promises to find us some new ones. In the meantime, though, why is she so damn sure that Avery is innocent, if she has no reasons to think so? Don’t we need reasons in order to believe things? Well, Zellner’s reason for belief – or at least her motivation for it – is clear enough. She is Avery’s lawyer. But where does that leave us? Why should we believe in Avery’s innocence? In a way we have no option, because the film-makers, over all those documentary hours, have never given us anything else to believe in. They have never conceded that the prosecution had a case, and that the jury may have had some reason to find Avery guilty, apart from a vague desire to oppress him. No: the film-makers have fed us on a general vibe of injustice, an innocence gestalt, pumped full of air by endless interviews with Avery’s family, who at least have a sound tribal reason to be deluded about his guilt. (What is the film-makers’ excuse?) Come to think of it, maybe Zellner deserves some credit for that lie-detector stunt after all. At least it cut through the general fog of superstition and sentiment and wish-thinking, and proved, finally, that Avery really is innocent of something. Not the crime itself, mind you, but something.
If the notion that Avery was framed by the cops seemed far-fetched, Zellner’s new “narrative” pushes the still more crazed notion that it was a private citizen, a lone civilian, who murdered Teresa Halbach and then engineered the baroque framing of Steven Avery. Over the course of the show, Zellner identifies about six “potential suspects” by name. By now, the show’s ethics have ceased being just questionable, and have started being downright disgraceful. Modern-day America is a nasty and dangerous place; and now a handful of totally innocent people will face a lifetime of sneers and harassment and death-threats, simply because they had the bad luck to be in the general area when the movie’s hero – and we might as well go ahead and call him that – committed his foul crime. To start with, Zellner zeroes in on Avery’s next-door neighbor. But this lead fizzles out fast, when the guy turns out to be helpful, friendly, and pretty obviously not a murderer. (Certainly he comfortably outstrips Zellner’s client in the not-reeking-of-guilt stakes.) Back in the car, leaving the man’s house, Zellner glumly returns to the drawing board. “Now I don’t know if the police maybe are responsible for bringing the car in,” she says. “And they’d also be responsible bringing the bones in.” Zellner looks and sounds like a woman engaged in a real investigation. But her inquiry is a pseudo-inquiry, because it can never really go back to the drawing board; no matter how many leads it runs down and burns out, it will never let itself look at the only person you need to look at, if you really want to solve the crime. The Avery explanation is forbidden; it is taboo. Again we must acknowledge that Zellner has no choice but to observe this taboo, because she is Avery’s lawyer. But again we must ask: what is the film-makers’ excuse?
Sure enough, Kratz is promptly hooked from the stage, and Zellner is wheeled on to deliver her would-be takedown of his claims, in a voice dripping with scorn. But listen carefully to what she says:
The state’s theory was that Steven was a sex-obsessed maniac who lured Teresa to his property to kill her after setting an appointment with her, and that he was using deception by calling and using the name B. Janda. The truth is, she knew where she was going. At 2.27 she told Dawn Pliszka at Auto Trader magazine that she was on her way to the Averys’. She had been to the Avery property five times before October 31st, and she had done a ‘hustle shot’ on October 10th for Steven. A ‘hustle shot’ was not an appointment that was scheduled through Auto Trader but an appointment she set up herself. So she had given Steven her cellphone number. She was obviously comfortable enough to give him her cellphone number.
While Zellner speaks, we are shown court documents and phone records that prove she isn’t lying. And indeed she isn’t. She is just being grossly misleading, and deliberately illogical. Barb Janda is the name of Avery’s sister, who lived next door to him on Avery Rd. So yes, Teresa knew that she was going, in a general sense, to the Averys’. Obviously she did. How else did she get there? The point is that she thought she was going to the house next door to Steven’s. And the question is why Steven, when setting up the appointment through Auto Trader, supplied that next-door address rather than his own, and took the odd measure of posing as his own sister, sealing the ruse by giving only her first initial. The answer, as the prosecution alleged, was that Avery had alarmed Teresa, on her visit of October 10, by answering his door in a towel, so that she was reluctant to go back there. So yes, Avery had her cell number. And yes, Teresa had been comfortable enough to give Avery that number – prior to October 10. But Avery obviously knew that he could no longer use it.
So Zellner’s whole monologue is a kind of pseudo-rebuttal. It sounds kind of impressive, but it completely skates around the damning bits of the prosecution narrative. After all these years, Zellner still can’t refute the fact that Avery, in setting up the appointment, behaved deceptively. All she can do is blow smoke, and she knows it. But who is she blowing smoke at? Who is she trying to fool? She is not limbering up to fool the legal system. This particular argument, such as it is, is far too feeble to be put into any legal filing. Nor can she be trying to deceive the film-makers. It is inconceivable that they don’t know the basic elements of the towel story, after following the case for more than ten years. But what Zellner obviously does know, by this point in proceedings, is that the film-makers are not in the business of challenging anything she says, even when they know it is false. She knows that her smoke will be allowed to drift straight on past them and out of the screen: at us. It’s us she’s trying to fool: us on our couches, strapped in for our viewing marathons, ready to be entertained, and ready to believe that something that sounds so much like a real argument probably is one. And the film-makers simply lie down and let her do it. They let her pseudo-rebuttal stream out to the world unchallenged, supporting documents and all, precisely as if it is a real and devastating takedown of Kratz, instead of a limp failure to address his claims. Wittingly or unwittingly (or semi-wittingly), the film-makers are playing exactly the same game as Zellner. They are out to fool the public too.
Early in the second series, Zellner promises that she will deliver, before we are through, a full “narrative” of Avery’s innocence. This sounds promising. Finally, we will get to know who did murder Teresa Halbach, if Steven Avery didn’t. Zellner looks very confident when she says this. (She looks very confident when she says everything.) But what she says amounts to an admission that there is still, after all this time, no good reason to believe that Steven Avery is innocent. The framed-by-the-cops scenario desperately improvised by his first defense team is history. Nobody bought it – except the film-makers, and most of the people who watched their first series. At any rate, it must now be scrapped. All the reasons the first film gave us to believe in Avery’s innocence have evaporated. But if we are patient, if we sit tight, Zellner promises to find us some new ones. In the meantime, though, why is she so damn sure that Avery is innocent, if she has no reasons to think so? Don’t we need reasons in order to believe things? Well, Zellner’s reason for belief – or at least her motivation for it – is clear enough. She is Avery’s lawyer. But where does that leave us? Why should we believe in Avery’s innocence? In a way we have no option, because the film-makers, over all those documentary hours, have never given us anything else to believe in. They have never conceded that the prosecution had a case, and that the jury may have had some reason to find Avery guilty, apart from a vague desire to oppress him. No: the film-makers have fed us on a general vibe of injustice, an innocence gestalt, pumped full of air by endless interviews with Avery’s family, who at least have a sound tribal reason to be deluded about his guilt. (What is the film-makers’ excuse?) Come to think of it, maybe Zellner deserves some credit for that lie-detector stunt after all. At least it cut through the general fog of superstition and sentiment and wish-thinking, and proved, finally, that Avery really is innocent of something. Not the crime itself, mind you, but something.
If the notion that Avery was framed by the cops seemed far-fetched, Zellner’s new “narrative” pushes the still more crazed notion that it was a private citizen, a lone civilian, who murdered Teresa Halbach and then engineered the baroque framing of Steven Avery. Over the course of the show, Zellner identifies about six “potential suspects” by name. By now, the show’s ethics have ceased being just questionable, and have started being downright disgraceful. Modern-day America is a nasty and dangerous place; and now a handful of totally innocent people will face a lifetime of sneers and harassment and death-threats, simply because they had the bad luck to be in the general area when the movie’s hero – and we might as well go ahead and call him that – committed his foul crime. To start with, Zellner zeroes in on Avery’s next-door neighbor. But this lead fizzles out fast, when the guy turns out to be helpful, friendly, and pretty obviously not a murderer. (Certainly he comfortably outstrips Zellner’s client in the not-reeking-of-guilt stakes.) Back in the car, leaving the man’s house, Zellner glumly returns to the drawing board. “Now I don’t know if the police maybe are responsible for bringing the car in,” she says. “And they’d also be responsible bringing the bones in.” Zellner looks and sounds like a woman engaged in a real investigation. But her inquiry is a pseudo-inquiry, because it can never really go back to the drawing board; no matter how many leads it runs down and burns out, it will never let itself look at the only person you need to look at, if you really want to solve the crime. The Avery explanation is forbidden; it is taboo. Again we must acknowledge that Zellner has no choice but to observe this taboo, because she is Avery’s lawyer. But again we must ask: what is the film-makers’ excuse?
As it happens, Zellner doesn’t fully revert to the cop
theory. She sticks with civilian suspects for a while. If the first series didn’t
scruple to put Teresa’s ex-boyfriend briefly in the frame, Zellner is not above
throwing him into the mix once again, for old times’ sake. After that, she
briefly smears Teresa’s former room-mate as the possible killer, merely because
he has taken the ill-advised step of cancelling an interview with Zellner’s
investigator. (In Zellner’s world, it is an outrage to charge a man with murder
when a charred corpse turns up in his burn pit; but it is okay to pin the deed
on a guy who has the temerity to dip out on a scheduled interview.)
The list of suspects and scenarios expands; and we are
apparently supposed to be impressed when Zellner, filing her various petitions
and complaints at the local courthouse, delivers her teetering thousand-page
documents, her alpine ranges of paperwork. The film-makers still haven’t
grasped the point that if there really was
some firm reason to think Avery innocent, the story would be getting shorter
and more precise by now, instead of fanning out ever further into endless vague
possibilities. Brendan Dassey’s lawyers, who really do have a persuasive case, have
always been able to reduce it a simple and unwavering charge: his confession
was coerced. But the fantasy of Avery’s innocence, after all these years, still
hasn’t resolved itself into any similarly solid claim. Okay, he was framed. But
by whom? Well, by somebody …
Or possibly by everybody. As the new series closes,
Zellner finally does put her cards on the table. Let it not be said that she is
vague or unspecific, in the end, about her beliefs. On the contrary: she is laughably
precise. At the eleventh hour - or let's be accurate: at the ninth hour - she outrageously turns around and pins the crime on Brendan Dassey’s longsuffering stepfather.
Providing zero evidence, she suggests that he committed the murder with the
help of one of the other Dassey boys, Bobby. And then, after they dumped Teresa’s
car, an evil police officer found it and decided to use it to frame Steven
Avery, maneuvering it onto the lot with the aid of Teresa’s ex-boyfriend. I am
not making this up. Zellner says these things in all apparent seriousness. She
proposes a kind of all-star, ensemble-cast conspiracy; you are reminded of that climactic portion of a charity concert when the performers, having done their various individual
turns, are all brought back onto the stage for one last monster jam.
“How many people can they blame it on before they run
out of people?” says the unfortunate Bobby Dassey, when he finds himself put in
the frame. Poor old Bobby puts his finger, here, on a hallmark of denialist
practice. Crime-solving becomes an infinite pastime, once you commit yourself
to denying the obvious. Once you take Steven Avery off the table, your search
for viable suspects is destined to go on, and on, and on. You may look
anywhere, at anyone, except at Avery. One fears that the film-makers will have
no reason not to go ahead with a third series now, since they still don’t appear
to understand that a premise that hasn’t been proved yet, despite so much grueling effort, must simply be untrue. Avery’s various lawyers have left no stone
unturned, in their search for the “real” killer. And what has turned out to be under
each stone? Fake news. Nothing.
Think of the following documentaries. What do they
have in common? Amanda Knox. West of Memphis. The Thin Blue Line. The Central
Park Five. Actually, they have a few things in common. The protagonists of each
film were innocent; they were imprisoned for crimes they did not really commit,
and they were ultimately set free. But more to the point, each of those movies was
relatively short. They were feature films, not multi-episode shows. A
hypothesis emerges: it does not take forever to document a real miscarriage of
justice. When a true injustice occurs, a single alternative explanation will
tend to emerge, generally revolving around a clear alternative culprit – and
that alternative story will get stronger and stronger as time goes by, until it
hardens into the truth. And this process does not tend to take forever.
On the other hand, think of the following
documentaries and podcasts. Serial (Season
One). Making a Murderer (Seasons One
and Two). The Staircase. Each of these
pieces goes on for a very, very long time. And none of them, over the course of
its jumbo running time, is ever able to deliver clinching evidence that its
protagonist is not guilty. (The Staircase,
to be fair, does not fit this model precisely. The evidence in the Michael
Peterson case is diabolically inconclusive; it is as hard to be sure of his
guilt as it is to be sure of his innocence.) A second hypothesis emerges. If
you want to make an effective longform true-crime documentary, maybe you don’t want
your star to be innocent. Maybe you don’t want a clear alternative suspect.
Maybe you want a case where alternative theories can proliferate, and fill up
time. There is an analogue in conspiracy theory. No criminal case in history
has generated more dispute and more literature than the Kennedy assassination.
And yet no criminal in American history is more demonstrably guilty than Lee
Harvey Oswald.
Making
a Murderer seems to think it is being very progressive and
right-on, when it presses its “miscarriage of justice” narrative – that narrative
in which the content keeps stubbornly failing to catch up to the packaging. But
you can’t bang on forever about non-existent frame-jobs without doing serious harm
to the American psyche, and to the nation’s trust in its institutions. If you can’t
prove your contentions of conspiracy, there comes a time when you must be
responsible enough to let them go. The truth is that the legal system, while it
failed Steven Avery terribly the first time, handled his murder trial far more
fairly and reasonably than the documentarians have. It gave Avery a fair shake;
but it gave the State a fair shake too. In the end, the jury decided that the
State was right; and to date, despite their decades of toil, nobody on Avery’s
side has provided a wisp of convincing evidence that the jury got it wrong. To
keep insisting that the Avery case was somehow a travesty, without offering any
proof of that, is to deepen the public’s cynicism (and nihilism) for purposes
of entertainment. It is to put yourself on roughly the same page as Trump, with
his untrue “America is all broken” narrative. And it is to put yourself there
using Trumpian techniques – assertion and innuendo, unsupported by evidence. The
new series of Making a Murderer has
been reviewed tepidly, but even its harshest critics have tended to accept
its bottom line, praising it for at least shedding light on America’s “corrupt”
or “failing” or “ineffective” legal system. But the American justice system
can’t be wholly rotten, if a
fantastically guilty murderer like Steven Avery is still lawyered up, still in with a shot, still brazenly rolling the dice after all these years.