Analyzing an Anomaly: Steven Avery and American Miscarriages of Justice

The directors of Making a Murderer, Moira Demos and Laura Ricciardi, were recently featured on the Daily Show (January 18, 2016) to discuss the motivations for their explosive 10-part documentary series which began streaming on Netflix on December 18, 2015. Providing some evidence of its swift permeation into America’s psyche, the hashtag #MakingAMurderer climbed to the 70th percentile in Twitter popularity rankings just three weeks after its initial debut (Nyman 2016). Yet despite the public’s obsession with evaluating the guilt or innocence of Steven Avery, Demos and Ricciardi insist that their main impetus in showcasing the Halbach investigation and eventual Avery/Dassey trials is to exploit this case as an “incredible window through which to look at our justice system” (Moira Demos; O’Neill 2016). Their goal is thus much broader than igniting a campaign over guilt or innocence in a single case.

In this, they have failed.

It may seem odd that we levy this provocative claim at documentarians who have nearly singlehandedly awoken intense (and warranted) scrutiny over the Avery and Dassey convictions. The series has encouraged both passionate debate and grassroots action in the form of a public petition for a political pardon, already amassing nearly half a million signatures. Making a Murderer could have, and should have served as a springboard for serious deliberation about the effectiveness of our criminal justice system to protect against and prevent miscarriages of justice. Instead, it mobilized a nation to care about one family’s arduous journey through the criminal justice system, encouraged amateur sleuthing to unearth the “real” perpetrators of the murder of Teresa Halbach, and even led to a recent bomb threat against the Manitowoc County Sheriff’s Department (on February 3, 2016; Verhoeven 2016). What is missing from the larger discussion, in spite of the extensive attention directed at prosecutorial and police misconduct and the role of faulty forensic evidence in the documentary (McDonnell-Parry 2016), is a critical assessment of the profound faith we have in America’s criminal justice system and the ways in which the Avery case exemplifies regular, foreseeable, and systemic flaws in its routine operations.

Avery Exceptionalism

Avery’s case is exceptional, not only among the millions of cases that are filtered through the criminal justice system, but also among types of system errors. In general, errors of justice can take a variety of forms: the innocent are convicted, the guilty go free, or due process rights are violated (Forst 2004). These various types of error are likely to be compounded within cases; for example, when an innocent is convicted, the guilty party, by definition, escapes punishment. Some of the most liberal estimates suggest that the proportion of wrongfully convicted persons serving time for serious offenses might be as high as 5 percent of the prison population (Gould and Leo 2010). Only a small percentage of those cases result in an eventual exoneration and, among those ever experiencing an exoneration, Steven Avery is quite extraordinary in sitting trial for a serious offense post-release.

Avery’s experience is also unique with respect to compensation. In more than half of all states, some form of compensation legislation exists as a method of reparation and reintegration for those whose lives were derailed by wrongful conviction (Owens and Griffiths 2011/2012). However, the generosity of these statutes varies considerably and is usually dependent upon the wrongly convicted either maintaining their innocence or not having “contributed” to their conviction (e.g., via false confession). It is only in the very unusual case, where exonerees can definitely prove willful or negligent misconduct by law enforcement, that civil litigation is an option. Steven Avery’s $36 million federal lawsuit against Manitowoc County was pending when he came under suspicion for Halbach’s murder; he ultimately settled his suit for $400,000 in order to pay his mounting legal bills. Thus, an implicit narrative (built upon a highly unusual circumstance) in the documentary is that Avery’s civil suit might have incentivized a law enforcement frame-up.

Avery’s story is unique in yet a third way. In 2009, the National Research Council (2009) criticized forensic science for its unreliability and faulty scientific basis; and more recently, the Justice Department acknowledged that FBI forensic examiners routinely gave flawed testimony in criminal trials over more than two decades (Hsu 2015). Criticisms levied at forensic science rest on deficient or unknown error rates against which matches can be assessed, the inherent subjectivity involved in individualizing a bite mark, for example, to a specific person, and the lack of scientific foundation on which virtually all forensics rest (Saks and Koehler 2005). A much less common assertion is that police and crime lab technicians actively tamper with forensic evidence to support the state’s case. In Making a Murderer, the audience is present for the suspenseful moment in which Avery’s defense team retrieves blood evidence from his original trial, only to discover that the evidence seal is broken and the rubber stopper has an apparent needle mark. The degree to which these irregularities imply tampering is a subject of some contention (McBride 2016) but, if true, Avery’s case involves one of the least common problems associated with the use of forensic evidence in criminal trials.

In essence, Steven Avery’s story is among the most dramatic and rare accounts that Demos and Ricciardi could have selected to illustrate flaws in criminal justice functioning. For some of these reasons, it has ignited a firestorm of controversy. But despite its unusual features, the experiences of Steven Avery could be easily fitted into a more structural, and common, theory of wrongful convictions – one that should be used to educate the public about the problem and scope of criminal justice error.

The Plague of Systemic Errors

A common view is that wrongful convictions are a function of duplicitous rational actions on the part of criminal justice agents in response to intense pressures to solve heinous crimes, or on the part of police and prosecutors to attain a promotion or retain a high conviction rate (Lofquist 2001). Yet without accounting for the actions of a variety of decision makers and the larger contexts in which they operate, one risks, as is evident in the public discourse surrounding Avery, focusing on the very unique and specific causes of miscarriages of justice. These include, but are not limited to police and prosecutorial misconduct, eyewitness misidentification, false confessions, all-white juries, use of informants, ineffective defense, junk science, misuse of DNA evidence, and discrimination (Vollen and Eggers 2005; Westervelt and Humphrey 2001).

According to Lofquist’s (2001) theoretical frame, plausible narratives of the criminal event typically become constructed around particular individuals, constraining how investigations are conducted, how evidence is explained, and how the crime is ultimately understood. Building upon the activities and understandings of one another, criminal justice actors engage in “escalating commitments” to a specific account involving a particular perpetrator (Lofquist 2001: 176; Rabe and Ermann 1995). As such, well-intentioned criminal justice actors attempting to genuinely solve a case and legitimately prosecute a defendant who they fundamentally believe to be guilty erroneously come to focus on the wrong suspect. The adversarial nature of the system further encourages both criminal justice actors and the public to trust that innocents will be filtered out as the case progresses. This assumption strengthens the belief that an actual innocent is guilty when the case moves forward (Vollen and Eggers 2005). Huff and colleagues (1996: 144) refer to this as a “ratification of errors” early in the process that come to be reinforced at later stages; in essence, the mistakes become “stickier.”

Although some aspects of the Avery story are anomalous, his experience coincides in many ways with other victims of wrongful conviction. Avery was a marginalized suspect (e.g., poor, lacking in intelligence) who police could easily direct public fear and hatred toward in response to pressures to solve a horrendous crime (the murder of Teresa Halbach) (Martin 2001; McDonnell-Parry 2016). In the initial stages of the investigation, when it emerged that Avery’s property was Halbach’s last destination on the day she went missing, law enforcement may easily have fallen victim to tunnel vision. This energizes them to pursue leads pointing to the suspect’s guilt, rather than to pursue alternative lines of investigation (Martin 2001). For example, the coercion of a confession from Avery’s nephew, Brendan Dassey, offered support for the story being constructed of Avery’s involvement in the crime, even though specific details were fed to Dassey by police. In general, a victim of wrongful conviction usually represents “a viable suspect around whom an adequate case could be constructed and into which evidence could be fitted by straining, but not breaking, credulity, law, science, and standards of practice,” (Lofquist 2001: 189), and “decision makers acting [within this context are often] free of conspiratorial intent or wrongdoing” (Lofquist 2001: 192). In other words, law enforcement need not be – and often is not – conscious of wrongdoing or maliciously engaged in misconduct to err. Therefore, even in the event that evidence of intentional misconduct fails to be unearthed, Steven Avery’s case might still exemplify Lofquist’s (2001) theoretical framework for understanding the production of wrongful convictions.

Salvaging Justice

Perhaps the documentary Making a Murderer, in addition to highlighting the prospective errors in Avery’s case, may eventually serve as a springboard for critically examining the structurally-embedded actions of criminal justice actors and the standard operating practices of the system as a whole. This important examination should enable the public, those who find themselves erroneously under suspicion, and, most importantly, those contributing to miscarriages of justice to recognize that the system does not always operate the way that it should. Until then, the unrelenting focus on Steven Avery’s unique experience, and his continued pursuit of justice, will dominate conversations around system errors. We cannot predict what the future will hold for Avery but, if he is eventually successful in securing a release from prison due to actual innocence or procedural error, the greatest miscarriage of justice of all will be the public’s collective sigh of relief that even when the system errs, justice is certain to prevail.

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