Dave Thompson, CFI is the Manager of Investigations and Consulting for Wicklander-Zulawski & Associates. Thompson shares his perspective on the Netflix documentary “Making a Murderer,” his thoughts on the criminal investigation, and the way that the facts of the case were presented in the series.
The Netflix documentary “Making a Murderer” is causing an outcry for justice in a system that is perceived as unjust. The 10-part documentary depicts for the viewer a perspective of the criminal investigation involving Wisconsinite Steven Avery and his nephew Brendan Dassey as they travel through the many layers of the criminal justice system. This series has taken social media by storm; creating several discussions on interview and interrogation techniques, false confessions and alleged corruption in the criminal justice system. It is an incredible example of how quickly and easily our society becomes divided and blinded when discussing potential injustice and impropriety during a criminal investigation.
As a Certified Forensic Interviewer (CFI®) it is imperative to take a critical look at the series—and the criminal investigation—and separate truth or evidence from drama and conspiracy. The documentary produced by Laura Ricciardi and Moira Demos begins in 2003 and is broken down over 10 different episodes that all leave the viewer hanging and salivating to watch the next one.
Since the documentary first aired on December 18, 2015, almost 400,000 people signed a petition to the White House asking for the Federal Government to take another look at criminal investigation involving the Avery case. Justice, in the eyes of some viewers, has not been served. However, it is interesting that a series which highlights injustices and biases, is unequivocally mirroring that same behavior.
Ricciardi and Demos have made several appearances and interviews since the release of the documentary and have stated “We’re not prosecutors, we’re not defense attorneys, we do not set out to convict or exonerate anyone”. If not meant to convict nor to exonerate, a critical review of this documentary should make the viewer question the intent of this film.
As we continue to take a critical view of this documentary and the claims and allegations it has so widely publicized, it’s important to review the information presented. It is an interesting observation that in the Avery case a jury heard weeks of testimony and then deliberated for days prior to making a decision. However, upon watching the 10 hour documentary, it seems as though the decision has already been made for you. Before a viewer decides on a verdict, maybe it would be appropriate to take a step back and deliberate the criminal investigation from an unbiased perspective.
If there was one word to describe the selection of content provided during this documentary as well as the actual criminal investigation that took place, “bias” would be a perfect description. There are several types of biases that we all fall victim to in different circumstances. A personal bias is obvious, and the basis of this documentary is an alleged personal bias against the Avery family by the criminal justice system and specifically the Manitowoc County Sheriff’s Department.
Based on the information provided in the documentary, the viewer is led to believe that the entire homicide investigation of Teresa Halbach has been focused on Steve Avery predicated on his history with the department. Avery was in the process of settling a large lawsuit based off of his wrongful conviction that placed him behind bars for 18 years of his life. There are several allegations of wrongdoings by the Sheriff’s Department including the planting of evidence, lack of due diligence and misleading interviews. This series begs the viewer to question the integrity of the criminal investigation, the ethical and moral violations by the Sheriff’s Department and the unjust nature of the resulting verdicts.
Trust in the criminal justice system, and specifically law enforcement, has significantly eroded over the last several years. Without any doubt, there are flaws in the system, but they are publicized through the foggy lens of media persuasion and bias. When broadcasting incidents of alleged police brutality or misuse of force the media tends to have selective publishing.
A routine, police-involved traffic stop that leads to the recovery of drugs may not be headline material. However, showing the last 10 seconds of video footage with the subject being restrained on the pavement turns it into a real provocative story. The Making a Murderer documentary even delivers this message for the viewer when they show a clip of an interview with a producer from Dateline NBC. The producer makes a comment about the Avery case, “This is the perfect ‘Dateline’ story…Right now murder is hot, that’s what everyone wants…we’re trying to beat out the other networks”. We can’t blame the filmmakers of this documentary for taking the same approach, after all they are “not putting on a trial, but a film” as stated by Ricciardi.
Documentary versus Due Process
Armchair jurors are quickly and loudly voicing their opinions on both the Avery and Dassey verdicts, but there are stark differences between watching through the narrow angle of a filmmaker’s lens versus the panoramic view from a jury box. The documentary aids the defense in making several claims of police misconduct during the criminal investigation by highlighting one side of the argument. When discussing biases and perception, viewers need to recognize the difference between the burden of proof of the prosecution versus the defenses ability to make unfounded claims or arguments.
In a court of law, the prosecution is tasked with proving, beyond a reasonable doubt, the several elements of each crime the defendant is charged with. On the opposing side, the defense simply has to cast doubt by poking holes in the evidence presented. In this documentary, the viewer is provided with several claims that could result in reasonable doubt, however they are not presented with the entire story that the jurors had access to. In essence, the defense is able to provide theories and present claims without as much supporting evidence as the prosecution would need to prove the same. As we look at several examples from the documentary, the filter that the viewer is subject to should become more obvious.
In the very beginning of the “Making a Murderer” series, the viewer is enlightened with information about the wrongful conviction of Avery as well as some vague details on his history with the police. One of the incidents the viewer is exposed to involves Avery pleading guilty to animal cruelty for accidentally setting his cat on fire. However, as reported by the Associated Press, the criminal investigation revealed that Avery had actually poured gasoline on a cat and intentionally threw it into a bonfire.
The severe punishment and disgust for those who commit acts of animal cruelty is a widely supported feeling. This omission of facts could have changed the perspective the viewer has of Avery starting from episode one. However, if the viewer has animosity towards Avery and assumes he is guilty in the first hour then there would be no reason to further dedicate themselves to nine more hours of confirming that thought. Instead, the documentary portrays Avery as an innocent person with a troubled past.
One of the major turning points in the documentary, and appropriately staged at the end of an episode, is the suggestion that the Sheriff’s Department planted Avery’s blood inside the vehicle of the victim, Teresa Halbach’s Toyota RAV4. Encouraging the viewer to watch the next portion of the series, we are still left without answers to many questions.
We see, in dramatic fashion, Avery’s attorney inspect an evidence box that has been ripped open, and a needle-sized hole is seen in the top of a tube of blood. There isn’t much that would be more controversial and climactic than planted evidence in the criminal investigation of a murder case, so that’s exactly what the viewer is shown.
What the viewer isn’t told, is that Avery’s DNA was found in several locations on Halbach’s vehicle. There was DNA extracted from Avery’s sweat on the hood latch of the Toyota. Ironically, this piece of evidence corroborates other testimony that is never heard during the series. Avery’s nephew, Brendan Dassey, had informed the investigators that he had assisted Avery in relocating Halbach’s Toyota into the junk yard, and that Avery had removed the battery cable from under the hood. This evidence and information, which would significantly sway the viewers’ opinion of the criminal investigation, is not shown in the documentary.
Further evidence presented in the documentary involves Halbach’s cell phone, including allegations of harassing calls and deleted voicemails. This sequence of events in the documentary includes testimony from Halbach’s co-worker, her ex-boyfriend, and her brother.
During this portion of the film, there is information provided that Halbach was receiving harassing calls from a blocked number, and that her ex-boyfriend and brother had hacked into her phone to listen to voice messages. This leads the viewer to draw a conclusion that there are other suspects, and therefore, reasonable doubt. This has also started a widely supported opinion by viewers that Halbachs ex-boyfriend could have been involved in the murder or the conspiracy. Continuing with the theme of omission, and selective editing, the documentary does not discuss the fact that the prosecution presented other evidence from the criminal investigation relative to these claims.
District Attorney Ken Kratz has stated that Avery called Halbach’s cell phone three times, twice attempting to block his number on the phone call. Avery also contacted Halbach’s employer, specifically requesting that she be the representative that comes to his house. This information may have helped the jury in deliberations, but the omission of such detail in the documentary makes it very easy for viewers to find reasonable doubt.
As we have reviewed the omission of evidence and the skewed perspective the documentary gives its viewers, it is vital to realize two other points. First, this is a documentary, not a trial in the court of law but more importantly, a trial in the court of public opinion. Because of this fact, there are no rules of law, no suppression hearings and no full disclosure of evidence. There is also nothing requiring the filmmakers to adhere to those regulations and self-admittedly, Ricciardi has even stated “Of course we left out evidence”.
Second, and most ironic, is that the documentary clearly establishes a bias for the viewer with limited information provided from the criminal investigation and a one-sided narrative, which is exactly the issue they are focused on targeting.
Body Language, Baselines and Bias
Some of the most common feedback from those that have watched the interrogation footage of Avery, Dassey or other witnesses revolves around the behavioral cues seen during their respective conversations. Many viewers have observed erratic eye movement, fidgety or uncomfortable gestures as well as changes in verbal behavior or responses. One of the major issues with behavior interpretation is confirmation bias. If an interviewer, or viewer, believes that the subject is guilty then they are more likely to identify several behaviors supporting that claim. A subject that consistently looks away and scratches their leg would serve as confirmations that the subject is guilty. This confirmation bias is a detriment to the accurate evaluation of someone’s behavior. If we observe someone hoping that they look guilty, ultimately they will.
There are several rules when attempting to interpret behavior, and one of the most important is to recognize that there is no single behavior that is fully indicative of truth or deception. In other words, simply because a subject blinks excessively, brushes lint off of their shoulder or crosses their arms, this does not necessarily indicate deception. If the behavior is on time to a stimulus—such as the interrogator stating the subject’s name—then we can at least start to correlate the behavioral response to a trigger. However, this still doesn’t indicate that the suspect is lying or hiding something, it is very possible they may have anxiety or concern for a different reason.
Imagine if someone had to speak in front of a large audience, and weren’t prepared for it. When they first stand in front of the group they would show several signs of anxiety, possibly increased respiration or perspiration, excessive blinking or manipulators. In this context, these behavioral cues are not due to deception, but rather due to anxiety. In an effort to identify the difference between anxiety and deception, it is imperative that the interrogator establish a behavioral norm of the subject they are interviewing.
This important element of establishing a behavioral norm, or baseline for behavior interpretation is indirectly referenced during the documentary. As claimed by Dassey’s attorney in the documentary, Dassey is alleged to have a 4th grade reading level and a limited cognitive ability. This is important information to an interviewer as it is essential that the subject does not misinterpret the interviewer, nor does the interviewer misread the subject. This is also important to recognize as an interviewer, as it could increase the likelihood of a false confession or misrepresentation of the facts.
The suggestion provided by the defense of Dassey is that the interrogators led Dassey to a false confession because of his vulnerability. During the trial, Dassey’s attorney cross-examined the agent that led the interrogation. In the line of questioning, the interrogator tells the court that he observed abnormal behavior from Dassey. He further discusses specifics about the behavior he observed and stated that he felt as though Dassey was hiding something. The defense attorney quickly reacted to these behavioral assessments by challenging the interrogator to his knowledge of Dassey prior to this observation. The attorney questions if the interrogator had ever spent time with Dassey at school, or in any other circumstance to establish his normal behavior.
This serves as an excellent observation of the importance of establishing a behavioral norm before attempting the already challenging task of interpreting behavior. Non-verbal indicators may be starkly different based on the context of the situation, the culture or demographic of the subject and many other variables that would be nearly impossible to list. To properly assess and interpret any behavior in a conversation, it is essential for the interviewer to be aware of these surrounding variables.
Interrogation or Intimidation
There are several theories and strategies when it comes to the practice of investigative interviewing and interrogations. In the past several decades this industry has undergone several changes and will continue to adapt based on legality and research. It is imperative however, that any interview or interrogation is conducted with integrity and with the intent to determine the truth and the substantiation of such. Commonly known methods being applied across several industries and some countries include: The Reid Technique the PEACE Model, and the WZ Method of Non-Confrontational Interviewing.
This documentary directly cites “Reid” when the defense team of Brendan Dassey discusses their claims against the interrogation that was conducted. It is important to understand that different approaches or techniques of questioning may be more relevant and successful in some interviews versus others. It is even more vital to observe the facts of this case; a young subject who is known to have limited cognitive ability, and the approach used when law enforcement representatives talked with him.
Academics have argued that a direct, confrontational approach increases the likelihood of a false confession especially with a subject that may be susceptible and vulnerable to such an accusatory conversation. In listening to excerpts from this four hour interrogation, it is observed that the law enforcement agents told Dassey that he was involved in criminal acts and re-accused him several times with limited or potentially zero evidence to support that claim.
It is an unfair critique of the interrogation with hindsight as a valuable resource, however in retrospect there are several other techniques that may have been better suited when interviewing a subject such as Dassey. Alternative methods may have provided Dassey with the ability to provide an honest and truthful response with substantiation of any said facts, without the use of intimidation or promises of leniency.
Most important is the interrogation which ultimately led to Dassey’s confession and subsequent trial. In this interrogation it is observed that Dassey is a quiet, withdrawn and vulnerable subject. When Dassey is asked several questions, his answers almost sound like he is guessing as to the correct response to satisfy the interviewer. Dassey admits during this interview that he was involved in the rape and murder of Teresa Halbach, and depicts a gruesome scene of the incident. Later in the documentary Dassey is asked by his mother how he came up with such a story, and Dassey replied, “I guessed.” Dassey’s mother then challenged him with this response, stating “You don’t guess with something like this, Brendan” to which Dassey replied “Well, that’s what I do with my homework, too.”
The major issue with this interrogation is the release of information by the investigators that ultimately contaminates Dassey’s confession. Most investigations will contain a piece of evidence or information that is kept from the general public, with the intention that it prevents false confessions and will substantiate a true admission of guilt from the responsible party. Unfortunately, false confessions happen for a variety of reasons, and sometimes it is simply because a subject wants notoriety for the horrific crime, causing them to take credit.
By not releasing specific facts, or a piece of evidence to the public, it is assumed that only the actual guilty party will be able to provide it. This vital information in the Halbach case was the fact that she was shot in the head prior to having her body burned in a fire. If Dassey or Avery had stated, without being prompted, that Halbach was shot in the head it would be a solid substantiation of such admission that they could speak to the intentionally omitted details of the criminal investigation. However, the investigators that spoke with Dassey revealed this information and therefore reduced all of its potential value.
The investigators led Dassey down a path, like a game of Taboo, where they gave him all of the clues hoping he would pick the right answer. “What happened to her head Brendan?” to which he replies that Avery cut her hair, and that Avery punched her. The viewer can sense the investigator becoming anxious, finally saying “I’m just going to come out and ask you; Who shot her in the head?” The valuable piece of evidence that was intended to prevent false confessions had just been given to the most vulnerable subject in the entire criminal investigation.
As noted throughout the documentary, there are four different occasions when Dassey is interviewed without an attorney or a guardian present. Depending on the custodial nature of each conversation, there may not be any legal obligation to provide Dassey with this assistance, however it may have prevented any misrepresentation of what occurred in those interviews.
Most ironic is the interrogation that occurs with Michael O’Kelly, the investigator that had been hired by Dassey’s court appointed attorney, Len Kachinsky. During this interrogation, O’Kelly is clearly pursuing an admission of guilt from Dassey as he threatens him with “spending the rest of your life in prison”. O’Kelly continues to persuade Dassey by asking if he wants a chance to get out one day and have a family. Ultimately, after many challenges and changes to his story, Dassey confesses to the crime.
An investigator and attorney that are supposed to be uncovering the truth on behalf of Dassey, instead appears to have a goal of implicating him. Since the documentary has aired, Kachinsky has spoken to the media claiming that “In 20/20 retrospect, I [Kachinsky] should have never hired or fired O’Kelly.” Kachinsky also speaks about the potential of a plea deal that may have been reached with the prosecution had Dassey wanted to testify against Avery.
Even with all the aforementioned errors in the Dassey interrogations, it is still possible that he was involved in the rape and murder of Halbach. Any misapplications of methods used when interviewing Dassey do not necessarily prove his innocence, however it does cast doubt on the validity of his confession in its entirety.
Investigators, whether they work for the prosecution or the defense should always have the same intent, and that would be to extract and reveal the truth without prejudice. When planning an interview or interrogation, it is essential to understand the moral and ethical obligations one has for justice and for the subjects involved.
A Search for Truth
When reviewing this case, as well as reflecting on the criminal justice system as a whole, it is evident that there is a clear distinction between the goals of obtaining the truth versus simply obtaining a confession.
In the documentary, it is mentioned that the interrogators had been trained to elicit a confession, rather than the truth. Without knowledge of their respective training, or intent, it’s difficult to validate or dispute that claim. To further differentiate these two terms, it’s important to recognize the fact that the subjects’ innocence or lack of involvement may very well be the truth. Regardless of the specific facts of the Avery case, or any other criminal investigation, the most important piece of evidence will always be the truth.
It is the ultimate goal for any interrogator or investigator, on either side of the courtroom to uncover the truth. If an interview is conducted with the sole purpose of a confession, especially with limited evidence, then the perception is that the conversation is conducted with a critical bias. In regard to the documentary, we have to recognize the fact that biases may very likely be derived from both parties, prosecution and defense. The critical differences between what the documentary tells its viewers and the actual totality of evidence in the trial illustrates the bias in the filmmakers intent; a search for the truth or the pursuit of publicity.
Moral of the Story
Without this presentation of potential impropriety it is debatable whether or not this series would have taken off as quickly in popularity as it has. This fact alone should make the viewer question if there is full transparency in the documentary. The millions of viewers, and now self-proclaimed legal experts, are deriving opinions and signing petitions with a small sample size of the entire criminal investigation.
What many viewers have now come to realize is the possibility that law enforcement could have acted improperly and simultaneously, Steve Avery could also be guilty. Demonizing one side of the argument does not, and should not be a direct correlation to believing or disbelieving the other
Without thorough in-depth knowledge of the case and all of its surrounding facts and evidence, it would be ethically irresponsible to come to a conclusion of truthful or untruthful, guilty or innocent. However, it is perceived that those producing the documentary as well as those prosecuting the case may have had equal, but opposing intent in the investigation of the Avery case.
If nothing else, this documentary stirs up a conversation as to the ethical and legal limitations and responsibilities by the criminal justice system as well as the ease of persuading and dividing the general public through the media. Moving forward, interviewers and investigators alike should remind themselves of the high ethical standard they are held to and they must act accordingly while performing the very challenging task of bringing down the full weight of justice by obtaining the truth from sometimes untruthful subjects during a criminal investigation.