(12-21-2015) My wife, Patti, suggested we watch a newly released documentary on Netflix last weekend called Making A Murderer and we were so disturbed by its shocking portrayal of justice in America’s heartland that we saw all ten episodes back-to-back.
I had a special interest because in the early 90s, a young Alabama attorney named Bryan Stevenson told me that he was representing an African American man on death row who was innocent.
As Patti and I watched the documentary, I kept having flashbacks about that murder case. What I heard being mouthed by Wisconsin prosecutors and detectives was shockingly similar to the sort of rationalization I heard in Alabama.
At first glance, it seemed unlikely that Bryan’s client, Johnny D. McMillian, was innocent.
After all, McMillian had been defended at his trial but two well-known black attorneys and jurors had convicted him based on testimony by an eye-witness who said he had been with McMillian when the accused had fatally shot a teenager working in a laundry on a Saturday morning. Two other witnesses came forward to collaborate that testimony, saying they had observed McMillian’s pickup truck parked outside the cleaners at the time of the murder.
I convinced my editor at Bantam Books the story would make a good book after I explained that the crime happened in Monroeville, Alabama, the real life home of best-selling author Harper Lee. Her hometown had been the inspiration for the fictional town in To Kill A Mockingbird and McMillian was accused of murdering a young white girl.
During the next two years, I watched Bryan strip away this fool-proof conviction. He proved that McMillian had never been inside the cleaners where the murder happened. The eye-witness who had fingered McMillian recanted and admitted that he’d lied in hope of getting a lesser sentence in an unrelated murder case and had learned “only details a killer would know” from his conversations with investigators. Testimony by the other two witnesses, who’d been enticed by a hefty reward, were discounted.
Bryan’s efforts in Alabama’s court system, however, failed to free McMillian. In a series of twisted legal rulings, appellate court judges bent over backward to insure that McMillian remained on death row. Even after Bryan found evidence that showed the prosecution had not provided the defense with exculpatory materials (a major denial of his rights to a fair trial), the state hesitated to free him. One official quietly told me, “We are not about to release a black man from death row until we have another one to put in there.”
It wasn’t until 60 Minutes broadcast a story that showed Bryan’s evidence and badly embarrassed the local prosecutor and state officials, that McMillian was released. Even then, the local sheriff assured townsfolk that McMillian was guilty and had only been freed on a technicality. State legislators refused to compensate McMillian for the six years that he had spent waiting to be put to death. (My book, Circumstantial Evidence: Death, Life, and Justice in a Southern Town, recounts the case. Bryan also revisits it in his newly released, best-selling book, Just Mercy.)
Making A Murderer documents the plight of Steven Avery, who is convicted in Manitowoc County, Wisconsin, of attacking and raping a local woman. Eighteen years later, DNA evidence exonerates him and during the subsequent investigation, viewers discover that local law enforcement officers allowed the actual rapist to go unpunished even after they were told his identity. The sheriff and prosecutor, we learn, went after Avery and his extended family because they were social undesirables. At one point, one official offers up a rational eerily similar to what I heard in Alabama about McMillian — If he didn’t do this one, he’s must have done others.
Just as in Alabama, the sheriff continues to insist that Avery might be guilty despite the irrefutable DNA evidence and when a young woman disappears after visiting Avery’s property to photograph a mini-van that he hoped to sell via the Internet, the local sheriff office’s immediately suspects him of foul play.
Because the film was made over a ten year period with the cooperation of the Avery family and his defense attorneys, it would be easy to suspect it for being one-sided. But it is not his attorneys’ explanations and defense theories (they argue that Avery is being framed by local officers who he sued for $36 million in civil damages for his earlier false imprisonment) that is the most so alarming.
The film becomes most difficult to stomach when Avery’s 16 year-old nephew, Brendan Dassey, is pulled from school by two detectives for interrogation. Intellectually slow and emotionally withdrawn, Brendan proves easy to manipulate when browbeat for hours by detectives who assure him repeatedly that they’re after his uncle, not him. After calling him a liar more than 70 times, Brendan eventually stammers out the confession that fits their narrative.
That interrogation, which is video taped, turns out to be child’s play compared to what happens when Brendan’s court-appointed attorney, who is supposed to be helping him, gets his impressible client to confess and, during another eye-popping video-taped interview, sees that a pencil is put in his hand so that Brendan with coaching can draw pictures of the crime (since his language skills are minimal.) That confession is later turned over to an ambitious district attorney who asks jurors to put the teen in prison for life.
I’ll not share the outcome of this deeply troubling program, but I will reveal that our legal system, with its lofty goal of blind justice, proves itself over-and-over again to be more intent on protecting its own than finding the truth.
It took 60 Minutes to force both the legal system and politicians in Alabama to free an innocent man. Whether Netflix’s Making a Murderer has enough clout to move the courts to take another look at Brendan Avery’s confession seems unlikely to me but warranted. Any parent who watches Making a Murderer will likely be sickened by what they see.
I was.
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