The Guardian had an interesting piece yesterday. The article (at http://www.theguardian.com/world/2016/jan/09/netxflix-murder-whoddunit-petition) with the title ‘Making a Murderer spurs 275,000 viewers to demand pardon for central character‘ is centre in all this. The first thing that came to my mind was the question: ‘Are people stupid, or is Netflix just brilliant?‘ takes a centre stage. You see, we seem to hang onto this notion given by movies and books that wrongful convictions happen all the time. Yet, where is the reality? First of all, the reality is getting buried by pretty much all parties. The best I could initially find was a 2013 statistical highlight. 172,024 matters were received involving 113,893 defendants. The document does have a lot more (at http://www.justice.gov/sites/default/files/usao/legacy/2014/09/22/13statrpt.pdf) and I hoped to find a more recent one, but these 121 pages should be enough to get you started. You see, the issue becomes when we try to get a deeper view of the issue, one that might not be in the interest of the U.S. Department of Justice Executive Office for United States Attorneys, but when we see on page 8 that 2013 had 61,529 cases files, and we see the claim on page 9 “The rate of conviction remained over 92 percent, as it has since Fiscal Year 2010“, which gets us 56,607 cases.
This document is important for a few reasons, you see, Netflix has created a monster in a few ways. First of all, this is not a legal piece of work, it is an emotional one. An emotional presentation. One would think like many other reality shows bombarding emotions. This would be the first mistake for anyone making that jump. It is a documentary, a presentation made in the best light any camera could do. The view of cars in decay might have meaning, but the mere view is that is, is a view of written off ‘rust’. It all starts with the fact that a person was freed after 18 years when DNA proves him to be innocent. We immediately feel for this person, a sex crime one of the most heinous crimes we would all love to clobber a man like that to death, like a fur dealer kills a baby seal, with a nail board. But then, we are confronted with innocence. This man never did that, so how did he get convicted? These are the thoughts many will have in the first 6 minutes of the pilot. Most will be hooked, I myself saw this and was captured. We get even more turmoil when we consider ‘The wrongful Convictions Blog‘, which has Contributing Editors like Justin Brooks, Professor, California Western School of Law, who is in addition to that Director of the California Innocence Project. I feel certain that Netflix (read: the makers of this documentary) did their homework on this project, so why is there an issue?
The series is brilliant because this could be the first time that this series is sparking the need for a true total overhaul of the American Justice system. As I see it, it is a first that we see ‘more than 275,000 viewers have signed a petition asking President Obama to overturn Avery’s conviction‘ on a scale to this side. Yes, Netflix created a monster, but is it a bad one? When we see numbers like 5,000 – 10,000 wrong convictions, when we realise that 5-10K out of 56,607 represents 8.8%-17.6%, now we get one in six to one in eleven gets wrongfully convicted.
Footnote: This is based on two sets of numbers, there is no clear picture on how many wrongful convictions there are in 2013, giving a debatable number (just making sure that you understand that my numbers remain debatable).
Now the issue shift, it shifts strongly in a direction we cannot predict, because until the numbers were clear we were all (me including) how often does this really happen, so when we see a jail movie where someone states that he was framed, he was innocent, the numbers tell us that one in eleven (lowest denominator) actually could be. When it is a parking fine it is one thing, when it is 30+ days it affects a life possibly forever, the American people now have an issue.
Now we get to the other part. The quote “In a statement, the White House said action in this case would need to be taken at state level – in this instance, Wisconsin. A petition directed at Wisconsin’s governor, Scott Walker, on Change.org has 6,300 supporters, but the governor has said that he will grant no pardons“, we see that the White House parked this on the state level this needs to be on, and the response by governor Scott Walker will not help the White House any, but that is the law, the man got convicted. Yet in that our emotions also play up, because when a person is convicted wrongly once, that state better make damn sure that all the evidence is truly Hunky Dory, because two wrongful convictions of this nature can break a government (and their bank account). Yet in all this we see presentations, presentations from all parties. When we see the claim “Two years after DNA evidence was used to clear Avery of sexual assault in 2003, and as he was starting a claim for $36m in damages, he was accused of the murder of Halbach, who had visited his property to take pictures of a vehicle for Auto Trader“, so is one truly linked to the other? You see, my thoughts take me in a partial other direction. Would any woman go near a man convicted of a sex crime? Even if that man was found to be innocent? Doubt will always be in play there. Now consider the location and the date, October 31st, aka Halloween. Over that day and the day that follows, we see 12 to 4 degrees Celcius, There is sweat, DNA. There is a premise of planted evidence, what is more interesting, why is there sweat from Avery under the bonnet on a day when it is 12 degrees? Summer, we all get, but late October? Was her camera that heavy? Yet in all that defence, we must also voice the quote “Prosecutor Ken Kratz last week accused the programme’s makers – Laura Ricciardi and Moira Demos – of withholding important evidence that led a jury to convict Avery and his nephew, Brendan Dassey“, which is at the heart of the matter. Netflix gives us a presentation and calls it ‘documentary’, which does not make the accused innocent, yet as evidence is allegedly withheld from the documentary, what do we have now? A mockumentary with a taste of legality? #JustAsking
I cannot tell, because I see one side.
So as we all see that outrage is what Netflix wanted to create, we see a job decently done, but is that all it is? Because I reckon until before this series, the one in six part was never that visible. The issue of innocently found guilty is not a new term, but it was a term that was never so widely known in the US. Making a murderer changes all that in a big way, once larger places get on the bandwagon for advertisement reasons, we will see a few more million getting emotional on the one in six group, as they should. Edward Helmore does give us the vital clue in this article “this is not a trial, but the truncated representation of one by journalists” and as I see it they always have their own agenda, does the viewer realise this?
Yet it isn’t just the image or the presentation, one part of the power that Making a murderer holds is the fact that Laura Ricciardi (one of the two makers) holds a JD from New York Law School and an MFA in film from Columbia University School of the Arts, which gives for the extra bang for the buck, but it does not take away that this remains a presentation, call it a new open presentation by ‘the’ defence; which is happening AFTER the conviction took place.
So will this start a legal change for America? The one thing that does in addition stands out is that the US is too bankrupt to be anywhere near considering a 35 million payout for one in six. That will impact the US in ways it cannot survive, so as Netflix brought a monster to life, we could see a massive change in prosecution and legislation, which if it happens would propel Making a murderer into the historic annals of TV presentations.
We should also take a look at the opposition, one who got his visibility through FoxNews (at http://www.foxnews.com/entertainment/2016/01/08/did-making-murderer-get-story-wrong). Here we see “Head of Investigation Discovery Henry Schlieff believes important elements of convicted murderer Steven Avery’s story were left out of the 10-hour Netflix documentary “Making a Murderer,” leading many viewers to draw the wrong conclusion about the crime everyone in America seems to be talking about“, which in my view is not unexpected. Henry Schlieff passed up on the high ratings show, as did HBO. Here lies the issue, part of the response ““We just didn’t feel it right for us in terms of the length,” Schlieff told FOX411. “I think something like this will work really well for Netflix”“. So when was the last time a network passed up on the chance for massive advertisement space opportunities? You can count those occurrences on one hand and you would not need any fingers.
HBO, Henry Schlieff and a few others missed out on a winner, more important, even though there are clear issues with the series, it does something that has not been achieved before; it gives a national and even international light to the massive number of wrongful convictions. Even when taking the lowest number of 5,000, which would not be low, we get close to one in eleven, we might state that one in nine could be closer to the speculated truth, so how many wrongful convictions will it take to overthrow the US justice system as is, as some regard it as a failed system? That conversation is now happening in many US living rooms. The Justice Department might think in way too many households, which will become a much stronger issue down the line, especially when the governor comes up for re-election, even the next presidential election will feel the impact, in an election where every point counts, 10 points come with a bigger bang than what a fair amount of states can offer, so this will become a growing issue sooner rather than later.
In the end, the paths that the series skates on is the implied issue of planted evidence, which is an option but not a given. The pending issue of 34 million gives weight to this, yet in all this most of our minds are stating that this was a rare occurrence. Which many groups are now debating, when a one in six number gets approached the consequence of large claims and the fact that most state coffers could not survive more than a dozen of those. The numbers if even taken at 50% correct give us no less than 4,000 possible cases, which in an equally distributed world implies 75 per state. If even half of that makes it to court, the bulk of the states would go into receivership overnight, the ultimate nightmare scenario.
An issue Laura Ricciardi and Moira Demos might hope to steer to as an ulterior motive, but in equal measure we must look at the direct impact. One, was Steven Avery guilty? In light of the previous false incarceration the main question on the mind of most Americans watching that show and if any clear evidence is ever brought to light that there was reasonable doubt, we will see an escalation unlike any we have seen before in American politics and American jurisprudence, because the 275,000 petition at present will be the mere tip of the iceberg, at that point the anger the people will hold can, could and possibly will topple whatever administration is in control at that point.
Which could have been the intent all along! In my personal view, I think that there has been intent all along. It might not have started out in that way, but after the Michael Iver Peterson Case, after the documentary the Staircase and in succession the events of 2010, I think at this point, both Ricciardi and Demos must have realised that their pet project had the opportunity to turn into a legislative and political Behemoth, and they were the only ones with the footage and the cooperation from the involved parties, they basically had the winning ticket to a lottery no one comprehended its existence.
I believe that part of that is shown in the recent interview that the couple had on Vulture dot com (at http://www.vulture.com/2015/12/making-a-murderer-directors-on-steven-avery-case.html). The quote at the very end: “Demos: One of the experiences we hope will come across is what it’s like to be accused in this country, what it’s like to go through this system. The hope is that with firsthand experience, people will think differently about the criminal justice system: what is working and what is not working, and the role each one of us plays in that“.
I think that the Stephen Avery case is the one straw that can now break the camel’s back. If this plays out correctly (for Ricciardi and Demos), if enough doubt can be created we will see a movement towards justice change unlike anything the US government has ever seen before, because two strikes against one person would be met with opposition never seen before, this is at the centre of many places like ‘The wrongful Convictions Blog‘, they will give rise to the issue of ‘the Justice system and what isn’t working‘.
Make no mistake, in the end Avery does not need to be innocent, in the Netflix presentation they would only need to show enough doubt to get a political ball, the size of a wrecking ball rolling in many unpredictable ways.
Lawrence van Rijn - Law Lord to be 