What Was Left Out of Making a Murderer Episode One

Steven Avery. Photo: Netflix

Netflix’s new ten-episode docuseries Making a Murderer is about the flawed way American police and court systems operate in the so-called heartland. Even when everyone involved is white, even when everyone involved is local, prejudice can still play a damaging, even damning role. Having incurred the ill will of certain people in power is enough to put a man in prison for almost 20 years for a crime officers may well have known he did not commit.

This is the kind of conclusion that would have great 19th-century American cynic Mark Twain shrugging and saying, “Sure, what else is new?” But it’s a good reminder, given the various examples of court and police incompetence across the country in the past few years in mostly diverse places, that homogeneity is no guarantee of peace. Or, for that matter, of justice.

In the first episode, we learn that Steven Avery, the show’s subject, was convicted in 1985 of a violent sexual assault against Penny Beerntsen and sentenced to 32 years in prison. No physical evidence tied him to the crime scene or to the victim. Indeed, he had multiple alibis linking him to other places.

Because the police, for reasons of their own, had decided he was guilty, however, they ignored any evidence to the contrary and declined to look at alternate suspects (including Gregory Allen, the man who, years later, was revealed to be guilty). Worst of all, they prompted Beerntsen, the victim, to believe that her assailant was, in fact, Steven Avery. Her certainty, as delivered to her by the police and the DA, became the wrecking ball that demolished Avery’s case. 

Making a Murderer episode one is a powerful indictment of a legal system that pushes heedlessly, even recklessly, for conviction, and then, once one has been obtained, “is designed to perpetuate a conviction,” as one lawyer puts it, no matter the cost. We learn that the system values consistency over accuracy and loyalty over fairness.

Still, a one-hour introduction cannot capture every salient point. Here are the most important details left out of episode one.

One of Avery’s earlier crimes is glossed over.
Episode one draws heavily on interviews with Avery, his legal team, and members of his family. Not surprising, then, that it presents a sympathetic view of the man. But at least one of the crimes for which Avery was convicted may have been more gruesome and deliberate than the show lets on.

In 1981, Avery acknowledges that he broke into a bar and pilfered from it. Five months later, he acknowledges some misbehavior with a cat and a fireplace. In the show, he describes it as a kind of dumb joke that went awry. One true-crime blog reports that Avery and his friends weren’t merely playing with a family cat too close to the flames; instead, “Avery was charged with cruelty to animals for dousing a cat with gasoline and oil, throwing it in a bonfire, and watching it die.”

A report on the local news website Madison.com confirms that grislier version of events and adds that it was considered relevant at the time: “‘When they brought out the fact that he lit a cat on fire, I think that's when people started to turn against him,’ said Chris Avery, 57, whose husband, Arlen, is Steven Avery's uncle.”

Victim Penny Beerntsen publicly discussed how it feels to have been instrumental in putting the wrong man away. 
When asked on the stand if she was certain Avery was the person who attacked her, Beerntsen replied, “I am absolutely positive.” After Beerntsen said that, the trial was over. One of Avery’s lawyers sums up why: “Penny Beerntsen was everything that Steven wasn’t. Smart, educated, well-to-do, church-going lady. A business owner. Involved in community affairs.” As opposed to Avery, with his rap sheet of low-level crimes and his rough, low-income family. “Just think of the two of them side-by-side.”

A segment called “Reasonable Doubt” from the podcast Radiolab covers the story — Avery’s trial, conviction, subsequent exoneration, and then his subsequent conviction of a different violent crime against a different woman — from Beerntsen’s point of view as part of an overarching conversation about the reliability of eyewitness testimony and memory in general.

There are possibly political reasons why the Attorney General didn’t find fault with the prosecutors.
Wisconsin Attorney General Peggy A. Lautenschlager, who, after an investigation, decided not to charge the sheriff or the DA’s office with misconduct, served from ’03 to ’07 under Governor Jim Doyle (D). According to a 2006 op-ed in the Milwaukee Journal-Sentinel, “Democratic Gov. Jim Doyle earned his credentials as a hard-nosed, lock-the-bad-guys-up attorney general — a posture he maintains.” Democrats in swing states must often play up their “tough on crime” personas; Doyle seems to be no exception, and perhaps that figured into why Doyle’s AG ended up coming down on the side of law enforcement.

The AG in Wisconsin is also an elected position, meaning she must answer directly to voters. If the populace had found her too softhearted, they could have tossed her out of office.

Avery is not the first or only man to be exonerated based on DNA evidence after having been railroaded by the justice system. Indeed, his situation is all too common.
Episode one demonstrates how DNA evidence in the Beerntsen case — first tested by two lawyers hired to reexamine the case in the 1990s, and then later by the Wisconsin Innocence Project’s experts, who were brought in by Avery’s increasingly desperate parents in the early ’00s — cleared Avery. Nothing had been done with the sex-crime kit before then.

The National Innocence Project has found that as many as half of their first 74 exonerated defendants were put away not by accident, but rather by prosecutors who were by turns overzealous and negligent, and generally guilty of misconduct. As of 2009, their website reports, “eighteen people have been proven innocent and exonerated by DNA testing in the United States after serving time on death row.”

Even in these most drastic cases, prosecutors are not held accountable: “Prosecutors are rarely found at fault, and even when they are, they are very rarely disciplined for it.” In a contentious 5-4 2011 Supreme Court decision, Justice Clarence Thomas dismissed the idea that there is an evident pattern of bad behavior by prosecutors. As Slate’s Dahlia Lithwick puts it, “If there is empathy for anyone in evidence here, it's for the overworked and overzealous district attorneys.” She adds that “the court has guaranteed that nobody can be held responsible for even the most shocking civil rights violations.”

Public opinion seems to veer the opposite way, though. If you begin typing “Are prosecutors …” into a Google search field, two of the five auto-fill suggestions are negatives (“bad” and “corrupt”). It does not seem like anything viewers see in Making a Murderer is likely to alter this assessment.