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If the only outcome of Making a Murderer is setting Steve Avery free, we've squandered a marvelous chance

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Oh you better believe there are spoilers.

True Crime is back. Podcasts like Serial and documentary series like The Jinx and, of course, Making a Murderer hearken back to the golden ages of 48 Hours and Dateline.  Accompanying this new cultural obsession is a sudden surge in interest to overhaul the deeply flawed criminal justice system. Petitions to free the "wrongfully convicted" Adnan Syed from Serial and Steven Avery and Brendan Dassey from Making a Murderer have signatures in the hundreds of thousands. Even President Obama felt obligated to comment on the case.

These shows have rekindled a collective desire to fix the systematic corruption of our police forces, our courts and our prisons -- but the solution we've landed upon, the hero that will right all these egregious wrongs, is the figure of the wrongfully imprisoned.

But, like the well-worn trope of the true crime genre, we've got the wrong guy.


In case it needs to be said, nobody should ever be jailed for a crime they didn't commit and the presumption of innocence is paramount to a functioning justice system. If a jury does not have enough evidence to convict an accused -- or if that evidence is suspect -- it cannot convict them. But if the takeaway from this latest rash of binge watching afflicting North America is that our jails are full of wrongfully convicted people, that would be a massive waste of our collective will.

First, in both Making a Murderer and Serial, it is highly probably that both Syed and Avery are guilty. The Intercept interviewed Serial's archvillain Jay Wilds, who the podcast repeatedly characterizes as unreliable, even duplicitous, because he can't remember if Best Buy had a payphone or not 15 years earlier. What he does remember is Syed showing him victim Hae Min Lee's body: "there's no new evidence that's gonna change what I saw," Jay said. "I saw Hae dead in the trunk of the car."

Serial is engrossing and addictive. And its best feature is the way producer and host Sarah Koenig presents an open mind: she admits to liking Syed, but can't decide whether or not she thinks he's guilty right up to the concluding episode. But the podcast works because of bewildering CSI-like details, not the messy and patient work of justice: a misleading witness statement here, old blueprints there, weather records and 10-minute conversations over whether or not a critical cell phone call could feasibly be a butt dial.

All that whodunit minutiae is undone by the single image of Lee stuffed in the trunk of her car by her ex-boyfriend.

Similarly, for all the work Making a Murderer does to undermine the state of Wisconsin's case against Steve Avery, he remains the most likely killer of Teresa Halbach. In a "I-binge-watched-it-too" disclaimer, let me say that I am sure that Manitowoc county almost certainly planted evidence and compromised the jury with disgraced former District Attorney Ken Kratz's lurid, disingenuous and sensational press conferences. One thing I won't be doing is arguing that police in North America are not systematically corrupt, self-interested and dangerous to the idea of justice.

But I also think Avery did it. An excellent primer at Pajiba reveals an extremely strong, if circumstantial, case against Avery: he had a history of harassing Halbach including calling her from *67 numbers to the point she had asked her boss not to send her to Avery again; Avery had purchased handcuffs and leg irons a week before the murder; Brendan Dassey's flawed statements nonetheless revealed details about the location of Halbach's RAV4; and most damningly, Avery had been accused of rape multiple times and molesting Brendan Dassey, his alleged accomplice.

I am aware that "probablys" and "most likelys" are not enough to convict someone and I agree with most viewers that both Syed and Avery deserve new trials, if not freedom. But if after learning that the police are a bunch of corrupt, depraved thugs waging war on North America's underclasses and the justice system is specifically designed to protect both the cops and itself, then signing a petition to vindicate these protagonists -- while the system remains a nightmare for those without acclaimed documentaries working to redeem them -- is a tremendously narrow conversion of the popular resolve it cultivated.

Consider first the true casualties of these shows: women. Consider the two murdered women, Hae Min Lee and Teresa Halbach. Consider Penny Ann Beernstein, the survivor of the 1985 sexual assault for which Avery was wrongfully accused. But consider too the woman sexually assaulted by Gregory Allen while Avery was in prison for his crime; the two women Avery was accused of raping; the women harassed by DA Ken Kratz's lewd text messages; and consider Brendan Dassey's mother, incessantly harried by an uncaring press and unable to protect her son first from a sexual predator and then from a heartless, hostile criminal justice system.

Steven Avery's release will not remedy this harm -- and will likely put more women in danger. It won't address the criminally low conviction rate for sexual assault allegations. It won't fix the culture of misogyny that permeates police departments across the continent.

The hurt the law exerts upon its victims is delivered long before someone is imprisoned for a crime they did not commit. The law is far more insidious. Instead of locking an innocent person up for a crime they did not commit; it criminalizes perfectly normal behavior to keep undesirables under its thumb: drug possession, trespassing, carding, stop-and-frisk, driving while black. The list goes on.

These shows exist in the long shadows of Laquan McDonald and Tamir Rice, the subsequent police cover-ups and the #BlackLivesMatter movement. They take place under the black skies of the Murdered and Missing Indigenous Women epidemic and the stunning institutional indifference. Working to free the Steven Averys and Adnan Syeds of this darkened world seems like setting so many hairs afire to light our way when only floodlights, if not raw sunshine, will do.


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