The term “trial by TV” refers to the allegation that broadcasting sometimes decides the guilt of a person ahead or instead of the legal system. But, in Making a Murderer, one of the nominees for the Radio Times Audience Award at the 2016 BAFTAs, what TV puts on trial is a trial.
The ten-part documentary, released on Netflix last December, begins with the release in 2003 – after eighteen years in a Wisconsin prison – of Steven Avery, whose conviction for a violent assault had been overturned due to new DNA evidence. During the opening episode, it was hard for viewers to understand how a miscarriage of justice case with a happy ending could occupy another nine hours of screen-time or why the story was being told more than a decade later. The answer is that Avery’s ecstatic exoneration was soon followed by being charged with the rape and murder of Teresa Halbach, a 25-year-old photographer.
“When we first heard of Steven Avery in 2005,” recalls co-director and co-producer Laura Ricciardi, “we thought the story had so much potential because we had never heard of a DNA exoneree later being charged with a crime, let alone such a serious and graphic one.”
Making a Murderer, its clever title referring to either the psychopathology of homicide or the state’s framing of an innocent man, is now an acclaimed and BAFTA-nominated Netflix multi-series, but it began as a project without budget or network. “When we started,” says Moira Demos, the other half of the film-making duo, “we were thinking it was a documentary feature film. Then it all changed.”
The development was the revelation that Brendan Dassey, Avery’s 16-year-old nephew, had confessed to having assisted his uncle in raping and killing Halbach. The teenager’s statement effectively secured the life convictions of both men. After filming around their trials, Ricciardi and Demos knew they had too much material for a single film but it took another eight years to find the time and finance to create the series.
As often happens with happy collaborators, the pair have developed a knack of relay narration. “This was a self-financed project for really the first nine years of the ten year process,” begins Demos.
Ricciardi picks up: “We moved to Wisconsin and were pretty much there for a year and a half, using loans and zero per cent credit cards. All the tricks in the book. Because if we didn’t film then, we wouldn’t have the material.”
“But we were lucky to start making this in our 30s and so we had prior careers that we could fall back on,” her colleague concludes.
It helped that their pre-existing professions – Demos working in film production, Ricciardi a qualified lawyer – were a perfect combination for this project. “Laura would conduct the interviews and I would set up the lights and sound and be behind the camera.”
Many viewers have become convinced that Avery and Dassey were framed. At a rally last month in London’s Parliament Square, protestors, led by actress Miriam Margolyes, called for the men’s immediate release. The film-makers, though, are keen to stress that Making a Murderer is intended to be reportorial rather than campaigning.
“Steven is our main character,” says Demos. “But the film does not take a position on his guilt or innocence. We are offering people an experience of the criminal justice system and asking: is this how you would want to be treated?”
Avery is, in many ways, an uneasy hero for those lobbying for justice. His first, over-turned prison term included six years for crimes of which he has never been cleared and some of the evidence in the Halbach case is troubling. But there is a crucial difference between proven innocence and whether the convictions were safe. Might the conduct of the second case against Avery have been affected by the fact that he was suing the state for $36 million over his first imprisonment? Were he and his nephew, who both had learning difficulties, easy fodder for sharp cops and smart lawyers?
“We think it’s important to point out,” says Ricciardi, “that this series does not answer the question of what happened to Teresa Halbach. We don’t presume to know what happened to that poor woman. We just think that there are a lot of unanswered questions in the case.”
A plot-twist that astonishes viewers was, the film-makers say, also the moment when they understood how extraordinary the story was. Watching a DVD of Dassey’s confession, they were struck that they didn’t recognise his tough interviewer as a member of the police or prosecution teams. The reason for this is that the interrogator turned out to be an investigator working for the defence. “He persuaded his own client to give incriminating statements and then those statements ended up in the hands of prosecutors,” Ricciardi points out. “I’d never seen anything like that in law and I hope we never do again.”
In making their documentary, the film-makers also became defendants themselves. Ken Kratz, a Wisconsin prosecutor, at one point tried to subpoena their footage on the grounds that they were working as an arm of the defence team. They defeated that motion and later disproved, through their correspondence files, Kratz’s claim that they had refused to interview him for the series.
To him and others who object that Making a Murderer is partial in its presentation of evidence, Demos responds, “We were trying to distill a thirty-year story into ten hours”, but Ricciardi, the lawyer, is more combative: “If you look at some of the stuff Ken Kratz is claiming we left out, it’s repetitive of stronger evidence that we put in. So we would have had to take out his strong evidence and put in weaker evidence. But anyone who works in drama knows that drama comes from conflict and so, if his case was strong, it was good for us.”
One result of the series is that Avery, after several years of defending himself, now has a new lawyer working to achieve release or retrial, while Dassey is awaiting the outcome of a complaint that, in securing and distributing the confession, his legal team failed in their duty of care. These developments may be reflected in a second series of Making a Murderer, although nothing is yet confirmed. “Everyone’s open to it but we’ll see,” says Demos. She and Ricciardi, though, have no desire to become TV-retrial specialists, planning to throw themselves out of court in any future projects.
Making a Murderer is part of a sudden genre of true-crime broadcasting in the U.S that also includes HBO’s The Jinx (which led to charges in an unsolved murder case) and Serial, a radio show that gained 68 million downloads for its re-investigation of a murder.
Because such projects feature real people in narratives with high stakes, Ricciardi believes that they offer an immersive, reflective experience that is “an antidote to the sort of entertainment – that’s quite prevalent today – that goes in one ear and comes out the other.”
It also struck me that in a period when anti-establishment political candidates – Donald Trump, Bernie Sanders, Ted Cruz – are flourishing by suggesting that the current set-up is untenable, the judiciary may have become a focus for opponents of the system.
“I think there is quite a lot of doubt about justice. And maybe it’s surprising because – when Steven was exonerated [in the first case] in 2003 – it looked like there was meaningful reform in the legal system, and there had been important scientific advances. There was a feeling that DNA was a panacea for miscarriages of justice. Now we can perhaps see that it created a false certainty. These cases are incredibly complex and there are no easy answers.”