There has been some good news for Brendan Dassey, whose dodgy conviction was the subject of the Netflix documentary Making a Murderer. A federal appeals court has upheld the overturning of his conviction on the basis that his confession was coerced out of him.
Making a Murderer was a welcome documentary, and has met with universal acclaim. The eponymous Rotten Tomatoes awarded it a 97% rating and it won sack loads of awards. Celebrities came out to praise it and it generated a petition of over a hundred thousand signatures to pardon Dassey and Steven Avery. Dassey and his uncle Avery had been convicted of the murder of Teresa Halbach.
I cannot praise the documentary highly enough, nor can I imagine the amount of work that went into making it. It makes for compelling viewing. If you haven’t watched it, stop reading this and go watch it now… and them come back here!
Human judgement, presumptions and injustice
Much as Making a Murderer deserves its praise, it conspires with public perceptions to generate a problem. Much like the utterly outstanding 13 Days in May, it takes one case and uses it as a metonym for injustices more generally. However, whether viewers make the connection is another question.
Let me unpack this.
Human judgement is usually based on presumption and idealisation. This pizza, that cup of tea, this democracy, that newspaper; we judge them on the basis of what a good pizza, tea, democracy or newspaper should be.
In a sense the good is an idealisation. In practice that ideal is never reached, but rather acts as an aspiration.
Most systems based on power are based on these aspirational ideals. We assume that most of the time most institutions probably more or less work. Such attitudes are the lynchpin of conservatism.
Take Edmund Burke’s reflections on the French Revolution: “it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society.”
Key here is: “any tolerable degree” and “common purposes”.
Burke recognises that institutions aren’t perfect but are as good as they might be. Their evaluation rests on their fulfilling a common purpose. But as a conservative, he collapses a particular interest or purpose into common purpose.
Common purpose, hegemony and legal legitimacy
The common purpose of a justice system is of course the administration of justice expressed through law. The legitimacy of a justice system depends in the first instance on their being just laws, and then a fair system of administering those laws.
In the UK, the principle of Open Justice is supposed to legitimise this purpose. The formulation of Open Justice is this: Justice has to be done and has to be seen to be done.
Ponder that for a moment: Justice has to be seen to be done.
Of course for a justice system to work there has to be a presumption that it usually functions as it should. Without a belief in the system it lacks legitimacy. The sight of justice happening feeds presumption.
So the first imperative of the justice system is to legitimise itself, to uphold public belief irrespective of its actual performance.
And so back to the likes of Making a Murderer. The presumption that we suppose to exist in the minds of audiences is that the fate of Avery and Dassey represents a fault in the usually functioning system. If Avery and Dassey overturn their conviction, it corrects an injustice and returns us to the imagined or presumed state of affair: the system normally administers justice fairly.
Such attitudes can be discerned in the contradictory reaction of audiences. Judging by reviews and comments on social media the documentary is met with frustration, anger and outrage: Surely this cannot happen in this day and age?!
Yet judging by crime reports in newspapers and reactions to them in comments and on social media, we can see how individual cases are seen as exceptions. In the main, the “common purpose” of justice being seen to be done is to feed public anger. Indeed consider the term for a convict: offender, they offend people.
The public mood
A crime is an offence against whatever it is “the public” likes. Of course, what the public likes doesn’t like changes over time and from place to place. There is no right about offences. As we know, it is an offence in some places for a man to kiss a man in public. In others it is an offence not to allow a man to kiss a man.
Sentencing often reflects the “public mood”. There is a degree which this mood is nurtured by newspapers, campaigners and others. However, I fear there’s an element that’s part of the human condition, a basic biological urge to survive. That which threatens survival is expelled.
So it seems that there is something base about punishment, as if the legal system is a pressure valve. If the lives of those convicted are not ruined, then the public will take matters into their own hands. We then have mob justice.
But this public mood is of course nurtured, amplified and then reflected by the media. Crime and punishment always has been some of the most profitable news around.
Indeed it is the easiest news to produce – the public appetite is there anyway, and of course the framing is simple – good/bad, black/white. Even those who proclaim that three are no binaries, no black and white are happy to eject their principles when it comes to crime. It seems that all critique of the media goes out of the windows in crime reporting.
Sometimes the public mood descends to the level of absurdity. With the Ched Evans rape trials, the #ibelieveher movement moved the Twittersphere. No facts are needed, no evidence, no investigation. We see here the imposition of a simple binary. A person says something, so it must be true. Such proclamations are based on some rather precarious foundations: is it a feature of nature or nurture that means women do not lie?
The reaction to Making a Murderer is even more curious insofar as the victim was said to have been raped before being murdered. Where the media reported the case in the expected way to begin with, thus stoking public fury, after the documentary the public mood shifts to the presumption of innocence. But that shift is predicated on a miscarriage of normally functioning justice against which a particular injustice is experienced.
It is to the massive credit of the film makers that they showed this injustice. Indeed one cannot watch the film without suspecting such injustices are a regular occurrence. However, whether it challenge the hegemonic perception of the legitimacy of the criminal law system is another matter, for that legitimacy exists in the minds of the audience.
The concern is that audiences are not able to make the connection themselves. From the definition of an offence, the absurdity of legal binaries, to the imbalances of court processes and deleterious effects of conviction, we see injustice everywhere, in every case at every stage.