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Q+A: “Making a Murderer” and the Flaws in our Criminal Justice System

If you haven’t binge-watched “Making a Murderer” yet (and if you haven’t by now, you really have no excuse), beware of spoilers ahead.

From conspiracy theories to petitions to the White House, the Netflix true-crime documentary has captivated the nation with the compelling story of Wisconsin man Steven Avery’s legal battles over the course of 10 years.

Avery, who served 18 years in prison for a crime he didn’t commit, was exonerated in 2003 with the aid of the Innocence Project, when the DNA in the case was matched to another man guilty of crimes in the area.

Soon after filing a $36 million civil lawsuit against the county and several of its officials associated with his first arrest, Avery was accused and convicted again – this time of the rape and murder of Teresa Halbach, a local photographer. Avery’s nephew, Brendan Dassey, also was convicted as an accomplice in the murder.

The series follows Avery’s trial, exploring issues and procedures in the Manitowoc County sheriff’s department that led to his conviction, sparking widespread debate about whether Avery is guilty of Halbach’s murder or if he was wrongly convicted – even framed – for the crime.

The one thing that isn’t in question after watching the series is this: Our criminal justice system is broken. Adam Benforado, JD, an associate professor in the Kline School of Law, agrees, but not for the reasons most people think.

In his recent book, “Unfair: The New Science of Criminal Injustice,” Benforado reveals that the root of the problem lies much deeper than just biased police officers, lying witnesses or dishonest prosecutors; it resides within the minds of each and every one of us.

Informed by his scholarship in the fields of law and psychology, the book explores the many ways that pervasive, unrecognized biases affect victims, eyewitnesses, suspects, detectives, judges and juries and can drive false confessions, wrongful convictions and other injustices.

We spoke to Benforado about “Making a Murderer” and what it says about our legal system.

“Making a Murderer” suggests that the police deliberately set up Steven Avery. But in your book, you argue that implicit biases beyond our conscious awareness present a greater threat than explicit bias. As you explain, “People think the problem is bigoted police officers and bad-apple prosecutors, when the real problem is much deeper. The real problem has to do with human psychology.” What do you mean by that?

Steven Avery’s case is both representative of the pervasive injustice that characterizes our system and an anomaly. What makes Avery’s case unusual is that there may well have been individuals who were trying to frame him for a crime that he didn’t commit. In most wrongful conviction cases, though, there aren’t such clear villains. Indeed, in “Unfair,” I show how it is often good people with the best of intentions who end up making mistakes or exhibiting biases that lead innocent people to prison. The causes of injustice tend to look a lot more like Penny Beerntsen, the sexual assault victim in Avery’s first trial, who incorrectly identified Avery as her attacker. Beernsten had tried hard to ensure she’d remember what the man looked like and picked Avery out of both a photo array and a live lineup. Yet she was wrong. Focusing on bad apples distracts us from more serious concerns, like the fact that eyewitness memory is fragile and faulty. Although tens of thousands of people are charged with crimes each year after being identified by eyewitnesses, we know that when eyewitnesses pick someone out, they chose an innocent filler roughly one out of every three times.

Even after Avery was exonerated in the sexual assault of Beernsten, some members of the police department still weren’t convinced of his innocence. Why is it so hard for police to change course once they have a suspect in mind? 

I think this is a good example of the tunnel vision that affects many actors in our criminal justice system, including judges, jurors, prosecutors and police officers. To ensure accuracy, it would be much better if each of us constantly revisited our starting assumptions as new evidence was encountered. But that’s not how our minds work. Instead, we filter new information through the lens of our expectations, discarding or downplaying facts that don’t fit our preconceptions and amplifying the significance of details that confirm what we already believe to be true. What’s particularly disturbing is that this bias can even influence forensic testing. We assume that matching a fingerprint or DNA sample is immune to human error, but lab technicians interpret the evidence in front of them in accordance with what they expect to find. That’s why blind testing procedures are so important. But look at what happened in Avery’s case: The person doing the DNA analysis of a bullet found in Avery’s garage was explicitly told to try to find evidence that would place the victim in the building.

Many people think Brendan Dassey falsely confessed to raping and killing Teresa Halbach. What does your research tell us about why someone would make a false confession?

From the footage in the documentary, I tend to think that Dassey falsely confessed. But what I know for certain is that, regardless of Dassey’s guilt, the interrogation techniques that the police employed are deeply problematic. It seems inconceivable to us that a person could confess to such a brutal felony and be innocent, but exonerations have exposed the awful truth, and experiments have shown that the most widely used approach to interrogation in the United States is largely to blame. The maximization and minimization techniques that are on full display in the clips of Dassey’s interrogation are very effective at getting suspects to confess, but they are powerfully coercive. We know that innocent people in Dassey’s position may feel desperate to end the acute distress they are experiencing and think to themselves, “Well, if I say I did it, I can get out of this room. The costs of such a confession are really low because the police will quickly follow-up on other leads and suspects, and they’ll soon realize their mistake.” The problem is that once you confess, you’re sunk. The police stop looking for anyone else and other evidence against you that once appeared shaky suddenly seems solid.

In your book you talk about social inequality and how our judicial processes fail to protect society’s weakest members. How and why do you think the system failed Steven Avery and Brendan Dassey?

There are numerous ways that our investigations and trials stack the cards against the “have-nots.” As just one example, we know that people who are young, who have a history of mental health problems and who have low IQs are particularly vulnerable when it comes to coerced false confessions. Sixteen-year-old Dassey, who had an IQ around 70, certainly fits this bill. And compare his first appointed attorney to the lawyers that Steven Avery was able to hire (using settlement money from his initial wrongful conviction). I mean, Dassey’s first attorney allowed his teenage client to be interrogated without him being present! The amount of money you have shouldn’t determine whether you receive justice or not, but it often does.

In your book, you advocate rehabilitation and re-socialization for prisoners. You write, “The logic is simple: Place people in monstrous conditions, and you’ll create monsters.” If Steven Avery is guilty of raping and murdering Teresa Halbach, do you think that his previous stay in prison had a role in “making a murderer”?

Our approach to corrections in this country over the last few decades has been a failure. We’ve chosen a model focused on making the prisoner suffer, depriving him of the things that most citizens take for granted. We deny access to their families and friends. We place people in solitary confinement for months or years on end. We allow tens of thousands of inmates to be raped. We fail to provide meaningful education opportunities, mental health support, or preparation for release. And then we act surprised when 40 or 50 or 60 percent of the people who we let out are picked up a year or two later for another felony. How do we expect anyone placed in a cage of violence, brutality and de-socialization to come out a better, more adjusted person than when they entered? There’s no way for me to know what the effect of prison was on Avery, but the broader data is clear: Our penitentiaries do not create the penitent. It’s often quite the opposite.

How worried would you be if you were falsely accused of a crime?

I’d be very worried — and, again, I’m a law professor who teaches criminal law! When it comes to sorting out the guilty from the innocent, our system is profoundly flawed.

And, of course, do you think Steven Avery is guilty?? 

Based solely on the information provided in the documentary, I would think that he wasn’t. But, of course, the filmmakers have brought their own biases to the table. If they’d highlighted other facts and details (like the allegations of physical and sexual violence in Avery’s past or the DNA matching Avery found under the hood of the victim’s car), I might feel differently. We need to be skeptical of all of the frames we are given, whether they are provided by a lawyer at trial or a filmmaker in a documentary. But the important to thing to emphasize is that even if Avery is guilty, the Netflix series shows that he received an unfair process — and the process matters.

Members of the news media who are interested in speaking with Benforado should contact Alex McKechnie at or 215.895.2705.

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