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We Asked an Exoneration Expert About 'Making a Murderer' and America's True Crime Obsession

Samuel Gross, law professor and editor of the National Registry of Exonerations, explains how pervasive misconduct is in America's criminal justice system.

by Lauren Messman
Jan 12 2016, 9:33pm

Promotional art for Netflix's 'Making a Murderer'

Promotional art for Netflix's 'Making a Murderer'

With the sheer number of thinkpieces, Reddit threads, and petitioners asking President Obama to pardon Steven Avery and his nephew Brendan Dassey, it's safe to say the Netflix series Making a Murderer is a bona fide cultural phenomenon, the latest in a run of true crime shows that have captivated America.

But while the documentary show has armchair detectives across the country trying to deduce Avery's and/or Dassey's guilt for the murder of Teresa Halbach, most disturbing to many viewers—if not exactly stunning to crime reporters—are the broader implications the film makes about the judicial process's tendency to fail innocent people.

To talk about that, we reached out to law professor Samuel Gross, who specializes in evidence, criminal procedure, and wrongful convictions at the University of Michigan, and is the editor of the National Registry of Exonerations, which compiles cases of people who were convicted and later exonerated. He offered some context for how the show's tale fits into the broader story of when American criminal justice goes horribly wrong.

VICE: One of the central questions driving Making a Murder is whether the sheriff's department is engaging in foul play. Generally, how often does misconduct by law enforcement actually happen in criminal cases?
Samuel Gross: Among cases in which there are exonerations, some type of misconduct by law enforcement occurs in going on 50 percent of cases, and in many of those it's serious misconduct—in particular concealing evidence that suggests the defendant's innocence. And that's extremely unfortunate.

Why do you think this happens?
There are two overlapping reasons: One is the natural desire to win when you're in a contest. Trials are organized as games in which one side wins and another side loses. Now, they shouldn't be games—the purpose in the end is not to have a good fight and that the best person win, the purpose is to determine what happened and come up with a judgment that reflects the truth. It gets worse in high-profile cases because those are cases with political implications; those are cases that may define your career. And in that situation it's not even the pressure to win, but the pressure to not lose is even higher.

Prosecutors are expected and allowed to engage in aggressive representation and to try to do everything to win the case within bounds. But they're also supposed to make sure that injustices don't occur and to only prosecute and convict people if they are guilty, and that's a hard set of competing obligations to balance.

On the opposite side of the court, the defense attorneys have no obligation to try to reach an accurate, just verdict. Their ethical obligation is to reach the best result for their client without actively deceiving and lying.

Then there's the other consideration, and that is in the great majority of cases, perhaps almost all of them where law enforcement, prosecutors, or police have engaged in misconduct to try to convict somebody, they believe that that person is guilty. They may frame somebody, but the usual type of misconduct that we're aware of is framing people they believe are guilty. And very likely in most cases, they frame people who are guilty. And that impulse, to cut corners, cheat, and present false evidence in order to get somebody who's guilty is easier to understand.

What tends to happen to officials if they've engaged in misconduct during a trial?
In general, prosecutors are very rarely disciplined for misconduct in a criminal prosecution of any context. Ineffective representation by defense attorneys is an equally serious problem, perhaps more prevalent. The defense attorneys who just don't do any work on the case or ignore evidence that's in their face that could help clear their client before trial or at trial, that could be the most frequent problem in cases that result in false convictions.

"It's not about the result, but about what goes on in the sausage factory."

Do you think popular true crime podcasts like Serial and shows like The Staircase and The Jinx are useful tools to show the American public the justice system's failings, or do they cause more confusion than good?
Oh I think they're very good. Making a Murderer has gotten a huge amount of attention and is a really compelling story. I think that these documentaries are good because most people don't really have a clue about the criminal justice system. And so far everything I've seen in Making a Murderer rings true, and everything I've heard in Serial certainly did.

The filmmakers [Laura Ricciardi and Moira Demos] have said in interviews, [roughly], "We don't have a position on whether he's innocent or guilty." As far as they're concerned, it's all about the procedure and the misconduct and the biases of law enforcement. It's not about the result, but about what goes on in the sausage factory.

Steven Avery's story is compelling, but not necessarily the most outrageous case of a wrongful conviction. Why don't we hear the stories of people who are in jail with strong evidence suggesting their innocence?
You can easily find cases in which the evidence of innocence is very strong and compelling and the defendants remain in prison because nobody will pay any attention to the case. Very little of what goes on in criminal courts gets any attention from anybody and very little paper record of what happened.

What does this case tell us about some of the problems that come with using and collecting DNA evidence and how it's perceived by a jury in court?
This series may be a window into the complexity of the DNA evidence now that it's expanded beyond sexual assault and some murder cases where there is blood into cases like this one where there is some blood evidence but also touch DNA evidence.

But the things that can be done with physical evidence today are much more elaborate and sophisticated than what could be done in 1985. It increases the danger of contamination, unintentional or intentional, but typically unintentional. The question is if the DNA is left on an object, is there an innocent explanation? I don't know in this case; some places yes, some places no. It's not as cut and dry, but if it's used carefully it can be very informative.

In an interview on Radiolab prior to the release of the documentary, Penny Beerntsen, the sexual assault victim who misidentified Avery in her rape case, asks herself: "Would Theresa Halbach be alive today if I hadn't misidentified my assailant?" suggesting that the damage that an innocent person would endure in prison might possibly lead them to commit a serious crime. How do people generally fare after they are set free from wrongful convictions?
My main reaction to that is: Poor Penny Beernstien. She's tortured herself enough about this case just for the terrible things that happened to Avery after he was wrongly convicted. I hope she doesn't really bear any sense of personal guilt for the murder of Theresa Halbach. I mean, this is not her doing, and I think the series shows that.

As to the background question, there's the sense in which it's likely to be true. There are other people who have been exonerated who went on to commit other violent crimes after that and ended up back in prison. This is one of the most disturbing cases of that, but not the first. There are some people who do just fine and then there are some who self-destruct, and then there's a range between the two. I can say each of those three is a substantial group. Whether or not they end up back on their feet again, their life is never anything that makes you feel like there is a happy ending of any sort.

Last week, the White House addressed a petition that had gained nearly 200,000 signatures to pardon Avery and Dassey, explaining to the public that the President can't pardon state criminal offenders. How would you suggest people get more involved—effectively—in cases they feel passionate about?
What I would hope most would happen to help change the criminal justice system is more attention to ordinary everyday injustices in which people have their lives damaged, not by the terrible huge catastrophic events, but by just ordinary mistakes and lack of concern, resources, and attention that get them tied up in the criminal justice system for things they didn't do. That happens much more frequently.

It's a badly underfunded system and it's dominated overwhelmingly by getting people to plead guilty without trial. That system where you just avoid all the costs of trial and investigation by pressuring people to plead guilty probably generates more injustices than anything that ever happens at trial by a factor of ten, but we almost never see them.

What I think is most important is learning about these cases and learning about what goes on because the criminal justice system is not widely known and understood. If you learn about these cases, what you find out is that lots of mistakes that are made are preventable.

This interview has been edited for length and clarity.

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