photo via Making A Murderer on Twitter
The Netflix documentary "Making A Murderer" challenges the moral core of our criminal justice system: that the police and prosecutors are objective and unbiased. The film follows Steven Avery, a Wisconsin man who spent 18 years in prison for rape before being exonerated, then arrested for murder two years later, found guilty, and sentenced to life in prison. The highly questionable police methods—a key piece of evidence miraculously appears; an improbable confession is coerced from a developmentally delayed adolescent—and the glaring conflicts of interest of many of the participants will infuriate any fair-minded viewer.
The criminal justice system's legitimacy is founded on our secular faith in unbiased police-work, forensic science, and truth-seeking prosecutors. However, many of these pillars are structurally unsound, as supported by reams of scientific studies and the wisdom of leading observers.
The problems with forensic science were first exposed systematically in a National Academy of Sciences report in 2009, but the legal system has been slow to incorporate its findings. Official misconduct of the type suggested in Making A Murderer is not isolated to small towns in Wisconsin. Alex Kozinski, one of America's foremost jurists and scholars, and a judge on the United States Court of Appeals, has recently written an opus which probes these problems in depth. And Kozinksi is no liberal; he was appointed by Ronald Reagan.
Take confessions. It is unfathomable to most of us, but it is not unusual for people under duress to confess to crimes they did not commit. And for minors sweating under the bright lights, their inherent anxiety and propensity for pleasing authorities, coupled with the various ruses, all legal, which the police can employ, render them easy prey. New Yorkers cannot forget that the Central Park Five (teenagers at the time) falsely confessed and spent several years in prison before being exonerated.
Eyewitness testimony is also subject to manipulations and the plasticity of human memory. In Steven Avery's first case the victim mistakenly identified him, after several inappropriate prompts from the police. And misidentification is even more likely when victims and perpetrators are of different races, an expected occurrence in multicultural communities like New York City. A New York State Bar Association study found misidentification to be the leading cause of wrongful convictions. Numerous expert panels have outlined model procedures for police to use when investigating eyewitness testimony and the NYPD should incorporate these findings.
High tech forensic science, despite its aura of infallibility, is less than perfect and many familiar methods have been tossed on the junk pile. Bite mark analysis, arson science, fiber and hair analysis, are among those that are now discredited as completely lacking in scientific validity. The Justice Department and FBI have acknowledged that evidence presented by an elite forensic unit over a two-decade period was based on methods now recognized as invalid.
The Manhattan District Attorney's office is, however, disregarding the scientific consensus and fighting tooth and nail to continue using bite mark evidence. In contrast, the new Brooklyn District Attorney, Ken Thompson, recently moved to have an arson-murder conviction overturned, in part due to now discredited "arson science," and Mr. Thompson's office is garnering national attention for its commitment to review cases and rectify wrongful convictions.
To a prosecutor, the most important bit of data is his or her conviction rate, and the resultant zeal to convict at all costs detours our system away from objectivity towards something like a witch hunt. Prosecutors routinely withhold exculpatory evidence from the defense. As Justice Kozinski puts it, "there is an epidemic of Brady violations [duty to disclose any vital evidence] in the land."
According to the National Registry of Exonerations, official misconduct was a factor in 45% of false convictions. In Orange County (CA) the district attorney's office is rocked with scandal after revelations that the police and prosecutors colluded in a decades long campaign of frame-ups and perjury. And in Brooklyn, as noted above, the new district attorney has begun dealing with the fallout from years of dubious tactics used by his predecessor, Charles Hynes.
This short list of prosecutorial abuses and junk science is only a glimpse at the problem. To give some depth, consider that one study in a prestigious journal estimated that 4.1% of all persons on death row could be exonerated. With roughly 3,000 people on death row now, about 120 persons sentenced to die may be innocent. If this rate of wrongful convictions is extended to the 1.5 million persons in federal and state prisons, 61,500 persons could be declared innocent, set free, and have their criminal records erased.
Though Steven Avery was not rich he had a competent defense team, yet still could not prevail (I am not claiming he is innocent, but that his trial was a travesty and he should not have been found guilty based on its proceedings.) But for poor people who cannot afford a private attorney, woefully understaffed and underfunded public defenders are their only option. That is why innocent people take plea bargains; without an effective defense they have no chance of winning. According to the National Registry of Exonerations, 10% of exonerees pleaded guilty, despite their innocence, to avoid a trial.
There is already a broad consensus that we send too many people to prison, for too long, and for behavior (e.g., drug use, sex work, nuisance offences) that should not be criminalized. Beyond that, we must ensure that police and prosecutors use valid methods to gather evidence and present that against the accused. The public election of prosecutors must be revisited to avoid the sort of uncontested transfer of power that occurred in the Bronx last year.
Finally, the New York State Court system recently issued rules enabling video recording of courtroom proceedings and these should be interpreted as liberally as possible to ensure that a Making A Murderer type of injustice can't happen here.
Christopher Beall works at a criminal justice nonprofit in the Bronx and is on Twitter @JailedintheUSA.