Ten years ago the ‘CSI effect’ signified a shift amongst jurors to treat evidence with more scepticism. Now, a new disruptive force – the ‘Serial’ or ‘Making a Murderer’ effect – is changing the way the law is discussed in the mainstream.
University of Melbourne criminal law expert Professor Jeremy Gans says the cases highlighted in made-for-the-web documentary series, Serial and Making a Murderer, will break down barriers which impede access to information, as was the case with “old-style crime coverage, with a voice telling you what to think”.
“I think there is going to be talk in a few years of a ‘Serial’ or ‘Making a Murderer’ effect – much like the ‘CSI effect’ – where you may see prosecutors complaining about jurors being a bit too sceptical,” says Professor Gans, from the Melbourne Law School.
“People will get more used to the potential fallibility of the judicial system and be more willing to ask questions and look for things they were otherwise discouraged from looking for.
“Victoria has the world’s best example of a case that went wrong because of DNA evidence – the Farah Jama case. Farah Jama was wrongly convicted of rape because of a contaminated DNA sample.
“I always argue that scepticism could have detected this wrongful conviction because the jurors in that case asked questions of the judge, which turned out to be the right questions to ask as they exposed this particular miscarriage of justice.”
Professor Gans says the case of Steven Avery as shown in Netflix’s Making a Murderer is fascinating.
“It seems much clearer to me that a terrible miscarriage of justice has occurred. Although you never really know why someone does commit a terrible crime like that (murder), it seems an incredibly implausible crime for Avery to get involved in at that point in his life,” Professor Gans says.
He believes the monopoly that courts have on information is being lost due to the transformative effect of new media.
“Because these shows are surrounded by social media discussion, it will continue something which has already been happening, which is the breakdown of attempts to wall off jurors from the rest of the world – it is not going to be tenable.
What is going on with the courts is the same as is happening with traditional media. Both institutions have lost their monopoly over the control of information.
“Whether this is a good or a bad thing is irrelevant because the process is not stoppable; it is the product of a current age. The average age of a judge is 60. The average age of jurors is 40. The next stage is the millennials who grew up with social media and you will never get past that.”
This new wave of crime coverage began with Serial, a trial by podcast in which co-creators Sarah Koenig and Julie Snyder revisited the case of Adnan Syed, the US high school student convicted of the murder of his classmate and former girlfriend Hae Min Lee.
This was followed by Andrew Jarecki’s The Jinx – a six-part HBO documentary that follows the case of New York real estate heir Robert Durst, acquitted in one murder case and awaiting trial in another.
Ten-episode Netflix docu-drama Making a Murderer examines the plight of Wisconsin man Steven Avery, who is serving a life sentence for a crime he says he did not commit.
In 1985 Avery was wrongly convicted for the sexual assault of a local woman. Avery was sentenced to 32 years in prison, serving 18 years before being exonerated by DNA testing, a technology introduced after his trial. This DNA also identified the attacker – a person of interest police declined to investigate. For this, Avery filed a lawsuit against Manitowoc County for $36 million.
In 2005 Avery was arrested again for the murder of 25-year-old photographer Teresa Halbach. His nephew Brendan Dassey was later arrested as well, after giving what his lawyers say was a coerced confession to helping Avery rape and murder her. In 2007, after separate trials, both were found guilty and sentenced to life in prison.
“There is no strong case against him and I am shocked the conviction succeeded and shocked that, absent of this documentary, it does not look like there would be a lot of moves to remedy this,” Professor Gans says.
Shows like Making a Murderer are valuable because they put the spotlight on the legal system, he says.
“It breaks the idea that the justice system is adequate to its task and cannot get it terribly wrong. Making a Murderer shows us that every protection can fail simultaneously … cases like Steven Avery’s are continually highlighting how difficult it can be to apply the law to the human unknown.
The series has totally blown away with the idea that such miscarriages of justice are rare, that it is a one-in-a-million.
There’s a sobering moment in the series when an NBC producer discusses the Avery case and why it makes the perfect narrative: “It’s a story with a twist, it grabs people’s attention … Right now murder is hot, that’s what everyone wants, and we’re trying to beat out other networks to get that perfect murder story.”
Crime investigations in the media are not new.
“It puts the spotlight on a particular miscarriage of justice, that would otherwise be lacking,” Professor Gans says.
“Really, it is hard to break through people’s willingness to accept quick summaries of cases. These detailed examinations can put a focus on a particular case. That’s no small thing, because we are talking about a man who might have his life taken away.”
Professor Gans says anywhere else in the world, including Australia, there would be calls for an enquiry into Steven Avery’s case. Calls for a retrial, however, would require convincing a court to revisit the case.
“Obvious as it was (to me) from looking at the trials of Steven Avery and Brendan Dassey that there was not the case to convict them, they were convicted by a jury who based their decision on the same information I saw.
“It begs the question, why should millions of viewers who came to a conclusion override 12 people whose job it was to come to that conclusion at the time,” he says.
“Really, the only way to convince the court to revisit the case would be to deliver an argument that outlines some sort of legal flaw in the trial or fresh evidence.”
People critical of the documentary say the directors presented a biased perspective. Professor Gans says it is hard sometimes to know whether to trust the messages these documentaries put out as some can be too skewed in their analysis.
“Everything needs to be treated with caution because everyone has an agenda,” he says. But what these documentaries, Professor Gans says, are showing us is that we need to be more cautious about trusting the process of the law when it is applied to the human unknown.
“There are so many aspects of this documentary I would not have believed had I not had the footage in front of me. There is a realisation that the world can be much weirder than you think. The difference between fiction and fact is that fiction has to be plausible,” he says.
Banner image: The mugshot of Steven Avery taken at Manitowoc Sheriff’s Department on 30th July, 1985. Picture: Wikipedia