How ‘Law & Order’ Tainted American Justice
“In the criminal justice system, the People are represented by two separate but equally important groups: the police who investigate crime, and the district attorneys who prosecute offenders.”
So went the mission-statement introduction to Law & Order—network TV’s longest-running “true crime” franchise, which premiered in 1990. But in 2016, it’s hard to believe how quaintly naïve it sounds—if not downright defensive.
Because nowadays, the more common message on TV screens—scripted cable series, news and documentaries—is that “the People” frequently need a representative to protect them from cops and the courts.
The cameras capturing today’s stories aren’t on soundstage sets, but on the streets, in courtrooms, on dashboards and witnesses’ phones. And L&O’s tick-tock, clue-by-clue crime-solving in 45 tidy minutes has been supplanted by a huge messiness: unprosecuted killings BY police officers, criminals who get away with it due to bad police work—and innocents spending years in jail for crimes they didn’t commit.
TV, in its endless quest for compelling stories in a cluttered landscape, has tapped this skepticism about truth, justice and faith in the system, and in some real-life cases has proved as successful in righting wrongs as the Boston Globe journalists in the movie Spotlight did regarding the Catholic Church’s abuses.
The HBO documentary series Paradise Lost followed the case of three outcast young boys framed and locked up for murder they didn’t commit, and helped get them released after 18 years. Season One of the NPR podcast series Serial dug deep into the uneven prosecution of a man in jail for killing his girlfriend, and got him a new hearing. HBO’s The Jinx excavated the past of real estate scion Robert Durst and made it so clear he should have been charged with at least one murder—if not several—that he was arrested soon after its finale aired.
You can’t help wonder, what would have happened without the aid of the years of work by the documentarians? And what about all the cases that aren’t on camera?
That worry haunts Netflix’s troubling recent hit Making A Murderer, a 10-episode documentary series that took a decade to make, about the second questionable conviction of a low-IQ Wisconsin man. In the month since its release, the discussion about the case has narrowed to whether or not he is guilty, and whether the series omitted crucial evidence. But those discussions are missing the larger point.
To recap: Steven Avery spent 18 years in jail on a rape charge that DNA later proved he hadn’t committed. After he was finally freed, Wisconsin legislators lawmakers passed a bill in his name aimed at preventing wrongful convictions, and Avery initiated a lawsuit against the officers who had ignored evidence and mishandled the case.
But a few days after several of the accused policemen gave depositions, a young woman disappeared who had visited Avery’s Auto salvage lot, and Avery was arrested on a murder charge, with no other suspects even investigated. His nephew Brendan Dassey, who has limited intelligence, was seen on camera being hounded by police interrogators—as well as another investigator allegedly working for his own defense attorney—into confessing whatever they told him to confess, and then the details he’d parroted were announced at prosecutor Ken Kratz’s press conference, tainting press coverage as well as any potential jurors who’d seen or read these statements.
As the series painstakingly details, Avery was again convicted on evidence that at best seems circumstantial, and at worst seems to have been actively planted to frame him. Avery was forced to settle his previous lawsuit to pay his new attorneys—and ended up sacrificing his freedom. He is back in jail again, and now so is his nephew, who can’t get paroled until 2048. Avery himself was given no chance of parole, although the series inspired an online petition for his release that amassed over 300,000 signatures. (The White House responded that because the cases were in state criminal court, the president does not have the power to pardon them.)
But even these outpourings involve believing what we’re being shown on TV. The filmmakers themselves have cautioned about that kind of certitude. And stories about the case continue to surface that further muddy the waters—including claims of damning evidence the filmmakers chose not to include, an interview with Avery’s ex-girlfriend describing him as a violent man unlike the one viewers get to see, reports of questionable jury procedures and behaviors and an array of other possible suspects (which don’t even include a few that viewers of the series might suspect).
But whatever his guilt or innocence, the lingering truths of the movie are not easy to dismiss.
A handful of moments in Making A Murderer are emblematic of our worst fears about the system: Prosecutor Kratz (who later has to step down for sexual harassment in another case) literally tells the jury that “Reasonable doubts are for innocent people,” and says “what does it matter” if a key piece of evidence was planted. The judge who sentences Avery to life without parole gives a lecture about how Avery’s a danger to society, “the most dangerous individual to set foot in this courtroom” because “as you’ve grown older, your crimes have increased in severity”—clearly ignoring the fact that the earlier conviction had been disproven and should not have been part of his decision. All in the pursuit of closing the books on a murder of a young woman whose family was understandably shattered—and removing a thorn from the system’s side.
The most insightful comment comes from one of Avery’s defense attorneys, Dean Strang, who muses forlornly about the “unwarranted certitude” that permeates everyone in the system “that they’re getting it right.” He’s including everyone—cops, prosecutors, jury, judge, even defense attorneys—who participated in Avery’s arrest, conviction, and incarceration.
So where might this misguided arrogance come from? Watching, you can think many things: expedience, self-interest, conspiracy, or even pure evil.
But maybe there’s another explanation. The cops, the prosecutors, the DNA experts, the jury are all behaving with certitude because that’s how it’s been portrayed for decades—including on Law & Order. There’s a gut-level faith in people in uniforms, in robes, in the jury box, because they’re on the side of “The People.”
Avery’s lawyers have filed a new petition for a retrial, based not on guilt or innocence, but on legal procedural failures. To some this will reinforce the accusation that the series is biased and trying to free a killer. But the series’ point is about the process: the rush to judgment, the bending of rules to prove a case. Nobody should feel comfortable endorsing that brand of justice. As the White House response to the petition noted, “President Obama is committed to restoring the sense of fairness at the heart of our justice system.”
Viewers of this docuseries and others like it—and people who see dashcam videos that seem to contradict the official version—are waking up to realize that human failings can have lasting consequences on the lives of others.
The lesson is an important one that rises above the particulars of one man’s innocence: Is the process fair, especially for those born disadvantaged to begin with? Reasonable doubts should be for everyone. When due process is compromised, it no longer is due process. And in the end, it’s not up to TV to make sure that justice is served—it’s up to us citizens.
David Handelman has written for Rolling Stone, Vogue, The New York Times, and shows on ABC, NBC, CBS, HBO, CW, DirectTV, ABC News, and CNN.