On the recommendation of Michelle Malkin (who has taken a great interest in publicizing the cases of the wrongfully convicted), I lately watched the Netflix series, Making a Murderer, Part II. I’m no great fan of Netflix as an operation, and more generally I regard every arm of the entertainment industry as a driving force behind our vast cultural decline. But you pick and choose, don’t you? What else can one do in this world if a Hebridean monastery isn’t available?
As a series, the production is about twice too long for my taste. I’m not really eager to know the details of Steven Avery’s family as they await the hour of his phone call from prison or plug along junking old jalopies while the state of Wisconsin crumples up his petitions and appeals. Human interest? Well, we all have our problems. A family with mental illness or dementia or substance abuse gnawing away at its members might as well be considered part of the great wide sea of wretches with loved ones in prison.
No, the functioning of the legal process—I should say the mal- or dysfunction—is what makes the series riveting… and gut-wrenching. Sometimes infuriating. Kathleen Zellner has built up a formidable reputation as an advocate for the wrongly convicted; and, of course, one can easily tell that she’s nowadays greeted by the prosecutorial establishment with murmurs of, “Well, she’s not putting another notch on her gun at our expense! Bring on the cameras. We’ll show her who’s boss in this town!”
Seriously, I would speculate that the attitude I’ve just described is very vibrant among the judges who tossed Avery’s petitions aside cavalierly time after time. In many states, one apparently need have no professional credentials whatever to be appointed a judge. Sometimes judgeships are elective—the practical consequence of which is that the judge in question will rule as opinion polls tell him his constituents would like him to rule. Job One is to be re-elected. If you were voted in by a self-styled law-and-order crowd, whose knowledge of the Avery case is confined to two-minute segments on the evening news (God help us!) but whose certainty that bad guys walk on technicalities all the time is ironclad, then you pay no attention to the merits of the appeal. Panem et circenses: give the hungry masses what they crave.
I found the preeminent example of this judicial travesty to be, not so much the instant dismissal of Avery’s request for an evidentiary hearing by some robed female idiot whose name escapes me, but the handling of Brendan Dassey’s extorted confession. Without Dassey’s “confessing” that he and Avery had raped and murdered Teresa Halbach, Manitowoc County’s case could have advanced no motive for the crime and—in the relative absence of material evidence—would have become incoherent. Brendan was a boy of sixteen when taken in for interrogation. He had extremely poor social skills and an IQ measured in the low 80’s. He was Mirandized… but one can only imagine what those abstract protections must have meant to him as a couple of avuncular detectives, on the other hand, promised him a quick trip home if he would just answer their questions honestly. Three hours of tooth-pulling followed, with the two amigos constantly badgering the slumped-over boy with, “We know the truth, Brendan—we know that’s not what happened,” and, in final frustration, feeding him details to which he could answer “yes” or “no”.
Even brief excerpts of the interrogation were difficult to watch. Yet Judge Hamilton, who seemed like a decent enough sort of soft-spoken, white, middle-aged champion of stable communities, could see nothing amiss in the inquisition, buying the prosecutor’s argument that Brendon needed to be nudged into attacks of conscience. This spiritual awakening appears to have deserted the boy at Avery’s trial, where he repudiated the confession, refused to turn state’s evidence, and received a life sentence for his scruples. Apparently he was conscientious enough (in the state’s eyes) to cop to a rape/murder scenario spoon-fed to him, but not enough to repeat the mea culpa—and also bright enough to grasp his Miranda rights, but not enough to understand that a murder conviction would put him in a cage for life.
Hamilton’s position failed to win over two other judges in the original appeal, but carried the day at the next level—the state of Wisconsin having refused with belligerent determination to admit its error. I found myself drawing dangerously close to hair-tearing moments when the D.A.’s dragoon persisted in stressing that Brendan knew details only accessible to the perp—this when said details were a) fed to him, and b) corroborated by no material evidence but simply concocted by detectives. Yet the little manikin was just doing his sordid job: it was the judges who should have blown away his house of cards.
For the record—and this may be more important than I would care to admit—two of the three judges who voted to throw out the confession were female, one of them black; three who found the confession ho-hum, business-as-usual, nothing-to-see-here were white males (the fourth being a fire-breathing harpy from hell who constantly talked over the presentation of Dassey’s attorney). For years, I have bristled at the suggestion that we need to consult race, gender, and… I don’t know: taste in music?… when appointing judges to high benches. Now I have to wonder. If these sleepy, incurious hacks have nothing but their inbred prejudices to guide their decisions, then, yes, maybe we need to pay more attention to how they were bred. I suppose, under the present system, we should pay exclusive attention to that.
The Supreme Court, by the way, declined to review this case. No doubt, there is some unwritten “hot potato” rule that precludes that august body from burning its fingertips in such matters.
I will add, too, in wrapping up, that far too much mention was made—by both the D.A.’s office and certain judges—of the “need for closure” on the part of the victim’s family. None of these officers should permit that need to tip the scales of justice. Relatives of victims have a fully understandable tendency to believe that the guy in the docks is the right guy: you don’t sweet-talk your insomnia into remission by imagining that a heinous killer is still at large. The court’s officers, however, are charged with punishing the guilty and safeguarding the public, not supplying survivors of crime with a soothing narrative. The incompetence of this lot is simply underscored by its unreflective—and potentially lethal—sentimentality; for, remember, if the wrong guy is in jail, then a killer is still on the loose.
I’m not going to devote space to discussing the obvious and repeated instances of evidence-tampering, violation of protocol, sloppy or fallacious “expert” testimony, and prosecutorial misconduct (e.g., suppression of exculpatory evidence) in Avery’s own case. You’d have to watch the series (and, yes, wade through the saga of Ma’s knee surgery) to appreciate the full magnitude of the injustice done here. If you’re at all like me, your confidence in our system of justice will be irresistibly—and permanently—shaken. We’re living in a banana republic; or if that is too harsh as a generality, then it appears, at least, that certain states and counties of our nation might as well be Lagos, Juarez, or Phnom Penh.
Footnote: could indifference to issues like this explain why 90+ percent of black Americans never vote for a Republican? Could this kind of outrage lie at the bottom of much of the inexpressive, ill-marketed, politically exploited knee-taking at NFL contests? Maybe middle-aged white guys with law degrees or a bit of public service should stop pitching the electorate with talk about safety in the streets and start focusing more on justice in the courts. I hear the streets in Indonesia, where you can have a hand lopped off for picking a stray bill up off the sidewalk, are very safe.